IMMIGRATION LAW REPORTER Fourth Series/Quatri`Eme S´Erie Recueil De Jurisprudence En Droit De L’Immigration VOLUME 7 (Cited 7 Imm

IMMIGRATION LAW REPORTER Fourth Series/Quatri`eme s´erie Recueil de jurisprudence en droit de l’immigration VOLUME 7 (Cited 7 Imm. L.R. (4th))

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[Indexed as: Barua v. Canada (Minister of Citizenship & Immigration)] Ruptanu Barua, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-2785-11 2012 FC 59 Michel M.J. Shore J. Heard: January 12, 2012 Judgment: January 17, 2012 Immigration and citizenship –––– Refugee protection — Elements of protected refugee status — Protection of country of nationality — Changes in country conditions –––– Applicant was citizen of Bangladesh — Applicant was active member of Buddhist community — Applicant fled to Canada and claimed refugee protection — Applicant claimed that he had suffered persecution as member of Buddhist minority — Board found that applicant had well-founded fear of persecution but refused applicant’s claim — Board found that there was change in circumstances in Bangladesh because there had been change in government — Applicant brought application for judicial review — Application granted — Board was required to enter into detailed analysis of country conditions, especially where change of government was recent — Board’s analysis was far from being detailed — Moreover, it was not sufficient to merely state that change of government was equivalent to change in circumstances — Docu- mentary evidence relied upon by board clearly demonstrated that persecution against religious minorities continued even after return of Awami League in power in 2008 — No change in circumstances could be said to be in effect in regard to religious minorities — It was therefore objectively reasonable for applicant to fear returning to his country despite that change in government, since change of circumstances was clearly not substantial, durable and effective. Cases considered by Michel M.J. Shore J.: Adjei v. Canada (Minister of Employment & Immigration) (1989), [1989] 2 F.C. 680, 7 Imm. L.R. (2d) 169, 57 D.L.R. (4th) 153, 132 N.R. 24, 1989 Car- 2 IMMIGRATION LAW REPORTER 7 Imm. L.R. (4th)

swellNat 628, 1989 CarswellNat 40, [1989] F.C.J. No. 67 (Fed. C.A.) — followed Ahmed v. Canada (Minister of Employment & Immigration) (1993), 1993 Car- swellNat 294, 156 N.R. 221, [1993] F.C.J. No. 718 (Fed. C.A.) — referred to Bacchus v. Canada (Minister of Citizenship & Immigration) (2010), 2010 CF 616, 2010 CarswellNat 1652, 2010 FC 616, 2010 CarswellNat 2338, [2010] A.C.F. No. 751, [2010] F.C.J. No. 751 (F.C.) — referred to Chichmanov v. Canada (Minister of Employment & Immigration) (1992), 1992 CarswellNat 1161, [1992] F.C.J. No. 832 (Fed. C.A.) — followed Kifoueti c. Canada (Ministre de la Citoyennet´e & de l’Immigration) (1999), (sub nom. Kifoueti v. Canada (Ministre de la Citoyennet´e & de l’Immigration)) 164 F.T.R. 116, 1999 CarswellNat 974, 1999 CarswellNat 616 (Fed. T.D.) — referred to King v. Canada (Minister of Citizenship & Immigration) (2005), 2005 FC 774, 2005 CarswellNat 1574, 2005 CF 774, 2005 CarswellNat 5443, [2005] F.C.J. No. 979 (F.C.) — referred to Myle v. Canada (Minister of Citizenship & Immigration) (2006), 2006 FC 871, 2006 CarswellNat 2132, 2006 CF 871, 2006 CarswellNat 4885, 296 F.T.R. 307 (Eng.), [2006] F.C.J. No. 1127 (F.C.) — referred to Tariq v. Canada (Minister of Citizenship & Immigration) (2001), 15 Imm. L.R. (3d) 22, 205 F.T.R. 252, 2001 FCT 540, 2001 CarswellNat 1072, [2001] F.C.J. No. 822 (Fed. T.D.) — considered Tong v. Canada (Minister of Employment & Immigration) (1993), 1993 Car- swellNat 2006, [1993] F.C.J. No. 1376 (Fed. C.A.) — followed Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 72(1) — referred to s. 96 — considered s. 97 — considered

APPLICATION for judicial review of board’s decision refusing applicant’s claim for refugee protection.

Viken G. Artinian, for Applicant Salima Djerroud, for Respondent

Michel M.J. Shore J.: I. Introduction 1 This Court has stated in a number of cases that the Refugee Protec- tion Division of the Immigration and Refugee Board [Board] must not ignore relevant evidence nor should it “dissect” the documentary evi- Barua v. Canada (MCI) Michel M.J. Shore J. 3

dence and use only specific portions in isolation to confirm one’s point of view. Instead, the evidence must read as a whole, in context, and weighed accordingly (King v. Canada (Minister of Citizenship & Immi- gration), 2005 FC 774 (F.C.); Bacchus v. Canada (Minister of Citizenship & Immigration), 2010 FC 616 (F.C.); Myle v. Canada (Minister of Citizenship & Immigration), 2006 FC 871, 296 F.T.R. 307 (Eng.) (F.C.)). 2 Given the specific facts set forth in the country condition documents, and the Applicant’s written narrative and testimony which was found to be credible, the Board erred by not applying the principles in respect to that which constitutes a change of circumstances.

II. Background 3 This is an application for judicial review, pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001, ch 27 [IRPA], of a decision of the Refugee Protection Division of the Immigration and Refugee Board [Board], dated March 31, 2011, wherein it was determined that the Applicant is not a Convention refugee nor a person in need of protection according to sections 96 and 97 of IRPA. 4 The Applicant’s claim was based on the grounds of religion and membership in a particular social group by virtue of his being a member of the Buddhist minority and as a Secretary of his Buddhist Temple who was active in protecting the rights of Buddhists in his community, in the province of Chittagong. The Applicant does have a well-founded fear of persecution. 5 The Court relies on the Applicant’s testimony and on the country condition documentation as well as the Personal Information Form [PIF] narrative, all of which were deemed credible; therefore, the Court agrees with the position of the Applicant.

III. Issue 6 Did the Board err by stating that there is a change in circumstances in Bangladesh and, therefore, the applicant’s fear, which the Board found to be credible, no longer exists?

IV. Analysis 7 It is important to specify that the Board found the Applicant’s fear and testimony regarding the persecution he suffered as a member of the Buddhist minority and as an active member of the Buddhist community to be credible but believed that there is now a change in circumstances 4 IMMIGRATION LAW REPORTER 7 Imm. L.R. (4th)

since there is a new government in place, and, therefore, believed that the Applicant had no longer a present fear of persecution.

Change in Circumstances 8 It is established law that for a change of circumstances to be valid, “the change [must] be meaningful and effective enough or substantial, durable and effective enough to make the applicants’ fear unreasonable and thus, without foundation” (Tariq v. Canada (Minister of Citizenship & Immigration), 2001 FCT 540, 205 F.T.R. 252 (Fed. T.D.) at para 31). 9 The interpretation of the Court in Tariq is in harmony with the stipu- lations of the United Nations High Commissioner for Refugees [UNHCR] Handbook on change of circumstances: 135. Circumstances” refer to fundamental changes in the country, which can be assumed to remove the basis of the fear of persecution. A mere — possibly transitory — change in the facts surrounding the individual refugee’s fear, which does not entail such major changes of circumstances, is not sufficient to make this clause applicable ... (Office of the UNHCR, Handbook on Procedures and Criteria for Deter- mining Refugee Status, Geneva, January 1988). 10 The Board is required to enter into a detailed analysis of the country conditions, especially where a change of government is recent (Kifoueti c. Canada (Ministre de la Citoyennet´e & de l’Immigration) (1999), 164 F.T.R. 116 (Fed. T.D.)). 11 The Board’s analysis was far from being detailed. 12 Moreover, it is not sufficient to merely state that a change of government is equivalent to a change in circumstances. It must be established that the appropriate legal principles have been applied (Ahmed v. Canada (Minister of Employment & Immigration) (1993), 156 N.R. 221 (Fed. C.A.)). 13 In the present case, the documentary evidence relied upon by the Board clearly demonstrated that persecution against religious minorities continued even after the return of the Awami League in power in 2008. 14 Referring to the U.S. Commission on International Religious Free- dom - Bangladesh Report, the Board states that the Awami League was backed by the minorities since they promised to assist minorities and to protect their rights (Decision at para 11). The same documentary evidence also states that, while certain steps were effected, promises were Barua v. Canada (MCI) Michel M.J. Shore J. 5 not kept; minorities still suffer persecution at the hands of the majority and AL Government goons while the police watch: ... The 2008 elections brought to power the Awami League, considered the most secular and favorably disposed toward minority rights among Bangladesh’s major political parties ...... The Prime Minister also declared that the government would keep past commitments to the predominantly non-Muslim indigenous peoples of the Chittagong Hill Tracts (CHT) region. In light of these positive developments, USCIRF removed Bangladesh from its Watch List in 2009. Despite some improvements, the government of Bangladesh never- theless continues to show serious weaknesses in protecting human rights, including religious freedom, and religious extremism remains a persistent threat to rule of law and democratic institutions. Accord- ingly, USCIRF continues to urge the government to strengthen protections for all Bangladeshis to enjoy the right to freedom of religion or belief, and to undertake further efforts to improve conditions for minority religious communities. USCIRF hopes that the government of Bangladesh will investigate and to the fullest extent of the law prosecute perpetrators of violent acts against members of minority religious communities, women, and non-governmental organizations. Reforms of the judiciary and the police also are necessary to ensure that law enforcement and security services are equally protective of the rights of all, including Hindus, Buddhists, Christians, Ahmadis, tribal peoples, and other minorities. Additional efforts are needed to counter societal and governmental discrimination in access to public services, the legal system, and government, military, and police employment. ... Even during periods of democratic governance, Bangladesh’s high levels of political violence and instability have provided opportuni- ties for religious and other extremist groups to engage in criminal activities with relative impunity. Authors, journalists, academics, and women’s rights and civil society activists debating sensitive social or political issues, or expressing opinions deemed by radical Islamists to be offensive to Islam, have been subject to violent, sometimes fatal, attacks. Some Muslim clerics, especially in rural areas, have also sanctioned vigilante punishments against women for alleged moral transgressions. Rape is reportedly a common form of anti-minority violence. The government often fails to punish perpetrators, since the law enforcement and the judicial systems, especially at the local level, are vulnerable to corruption, intimidation, and political inter- ference ... 6 IMMIGRATION LAW REPORTER 7 Imm. L.R. (4th)

... Attacks on members of religious or ethnic minorities or their properties, including thefts and vandalism at Hindu temples, continue to be a problem, although it is difficult to distinguish criminal intent from religious animosity or other possible motives. Weak and corrupt law enforcement leaves members of religious minority communities vulnerable to harassment and sometimes violence, particularly sexual violence against women, by members of the Muslim majority. Al- though the constitution provides protections for women and minorities, Hindus, Buddhists, Christians, Ahmadis, tribal peoples, and other minorities must regularly grapple with societal discrimination, as well as face prejudice that hinders their ability to access public services, the legal system, and government, military, and police employment. Religious minorities are also underrepresented in elected political offices, including the national parliament. Since the Pakistan era, Muslims, particularly those who are well-con- nected politically, have used The Vested Property Act (VPA) to seize Hindu-owned land. The VPA’s implicit presumption that Hindus do not belong in Bangladesh contributes to the perception that Hindu- owned property can be seized with impunity. Bangladesh’s National Assembly began consideration in January 2010 of government- backed legislation on this issue and minority-group representatives were permitted to express their concerns in testimony before parliament. USCIRF welcomed this development in a public statement urging the government to consult legal scholars and representatives of the affected communities in order to devise remedies for past abuses and prevent further property seizures based on the owners’ religious affiliation. However, as of this writing, no new legislation has been passed. Despite attention to this issue at the national political level, Hindu-owned property continued to be seized. In the Su- trapu district of Dhaka in March/April 2009, police reportedly stood by as Muslims violently disposed poor Hindus of land given to them by Hindu landowners leaving for India in 1947. In March 2010, local officials of the governing Awami League were reported to have seized land belonging to a temple in Kaliazuri in the remote northern district of Netrakona. Ethnically, Bangladesh is highly homogeneous, with more than 98 percent of the population being Bengali. Members of ethnic minority communities, mostly tribal peoples in the north and in the east, are often non-Muslim. The most serious and sustained conflict along ethnic and religious lines has been in the CHT, an area with a high con- centration of non-Bengali, non-Muslim indigenous peoples. Resent- ment among members of indigenous groups remains strong over settler encroachment on traditional tribal lands, human rights abuses Barua v. Canada (MCI) Michel M.J. Shore J. 7

by the Bangladeshi military, and the slow, inconsistent implementa- tion of the 1997 CHT Peace Accords. Muslim Bengalis, once a tiny minority in the CHT, now reportedly equal or outnumber indigenous groups ...... Based on the foregoing concerns, USCIRF continues to recommend that the U.S. government encourage the government of Bangladesh to take action on the following issues and ensure consistent imple- mentation: investigate and prosecute to the fullest extent of the law perpetrators of violent acts against members of religious minority communities, women, and non-governmental organizations promot- ing international human rights standards; repeal the Vested Property Act and commit to restoring or compensating for properties seized, including to the heirs of original owners; rescind the 2004 order ban- ning Ahmadi publications, and ensure adequate police response to attacks against Ahmadis; enforce all provisions of the Chittagong Hill Tracts Peace Accords and ensure that members of all tribal communities are afforded the full rights of Bangladeshi citizenship; ensure that the National Human Rights Commission is truly independent, adequately funded, inclusive of women and minorities, and possessed of a broad mandate that includes freedom of religion or belief; include in all public and madrassa school curricula, textbooks, and teacher trainings information on tolerance and respect for freedom of religion or belief; and ensure that members of minority communities have equal access to government services and public employment, including in the judiciary and high-level government positions. [Emphasis added]. (U.S. Commission on International Religious Freedom [USCIRF] An- nual Report 2010 - Additional Countries Closely Monitored: Bangladesh, Application Record [AR] at pp 27-33): 15 Furthermore, the U.S. 26 October 2009. Department of State. “Ban- gladesh” International Religious Freedom Report 2009 also supports this analysis and states: ... Although the government publicly supported freedom of religion, attacks on religious and ethnic minorities continued to be a problem during the reporting period since religious minorities are often at the bottom of the social hierarchy and, therefore, have the least political recourse ... Government officials, including police, nonetheless often were ineffective in upholding law and order and sometimes were slow to assist religious minority victims of harassment and violence. The 8 IMMIGRATION LAW REPORTER 7 Imm. L.R. (4th)

Government and many civil society leaders stated that violence against religious minorities normally had political or economic dimensions and could not be attributed solely to religious belief or affiliation. There were reports of societal abuses and discrimination based on religious affiliation, belief, or practice during the period covered by this report, although figures suggested such incidents declined significantly in comparison to the previous reporting period. Hindu, Chris- tian, and Buddhist minorities experienced discrimination and sometimes violence from the Muslim majority. Harassment of Ahmadis continued. ... Many Hindus have been unable to recover landholdings lost because of discrimination under the defunct Vested Property Act. Although an Awami League Government repealed the Act in 2001, the new Government did not take any concrete action to reverse the property seizures that occurred under the act. The Vested Property Act was an East Pakistan-era law that allowed the Government to expropriate “enemy” (in practice Hindu) lands. Under the law, the Government seized approximately 2.6 million acres of land, affecting almost all Hindus in the country. According to a study conducted by a Dhaka University professor, nearly 200,000 Hindu families lost approximately 40,667 acres of land since 2001, despite the annulment of the Act the same year. In April 2001 Parliament passed the Vested Property Return Act, stipulating that land remaining under government control that was seized under the Vested Property Act be returned to its original owners, provided that the original owners or their heirs remained resident citizens. The law required the Government to prepare a list of vested property holdings by October 2001. Claimants were to file claims within 90 days of the publication date. In 2002 Parliament passed an amendment to the Vested Property Return Act that allowed the Gov- ernment unlimited time to return the vested properties and gave control of the properties, including the right to lease them, to local government employees. By the end of the period covered by this report, the Government had not prepared a list of such properties...... Violence directed against religious minority communities continued to result in the loss of lives and property, but the true motives — whether religious animosity, criminal intent, personal disputes, or property disputes — were often unclear. While the minority status of the victims may have played a role, it should be noted that religious minorities are often at the bottom of the social hierarchy and, there- Barua v. Canada (MCI) Michel M.J. Shore J. 9

fore, have the least political recourse. Police frequently were ineffective in upholding law and order and sometimes were slow to assist religious minorities. This attitude promoted a greater atmosphere of impunity for acts of violence against minorities... Reported incidents against religious minorities during the reporting period included killings, rape, torture, occupation of places of worship, destruction of homes, forced evictions, and desecration of items of worship. Most of these reports could not be independently veri- fied. There also were reported incidents of members of the Muslim community attacking each other on holidays due to a perception that some events were un-Islamic. The government sometimes failed to investigate the crimes and prosecute the perpetrators, who were often local gang and auxiliary political organization leaders. According to Shamokal, the daily newspaper in Bangla, on March 30, 2009, 50 police officers and 100 others evicted approximately 400 individuals, mostly Hindus, from Sutrapur in old Dhaka and destroyed their an- cestral homes with hammers. The mob, allegedly led by the brother of a local Awami League politician, also destroyed the oldest Shiva temple in Kalirghat. The individuals evicted claimed that the land was registered in their name in 1945 and that they had been paying municipal taxes and utility bills. After the passage of the Vested Pro- perty Act, the area was registered as “vested property.” The Hindu residents alleged that several powerful local leaders had filed a case claiming the property. Police sided against the Hindu occupants, claiming they had been illegally occupying the land their name in 1945 and that they had been paying municipal taxes and utility bills. After the passage of the Vested Property Act, the area was registered as “vested property.” The Hindu residents alleged that several powerful local leaders had filed a case claiming the property. Police sided against the Hindu occupants, claiming they had been illegally occupying the land. [Emphasis added]. ... Section IV. U.S. Government Policy The U.S. Government discusses religious freedom with officials at all levels of the Government as well as with political party leaders and representatives of religious and minority communities. During the reporting period, the Embassy emphasized the importance of free, fair, and credible national parliamentary elections in 2008 with full participation of all ethnic and religious communities. Following the election, the Embassy reiterated the need for an inclusive political process for all citizens regardless of religion. The Embassy continued to express concern about human rights, including the rights of relig- 10 IMMIGRATION LAW REPORTER 7 Imm. L.R. (4th)

ious and ethnic minorities. Embassy staff traveled to various regions investigating human rights cases, including some involving religious minorities, and met with civil society members, NGOs, local religious leaders, and other citizens to discuss concerns about pre- and post-election violence. They also encouraged law enforcement to take proactive measures to protect the rights of religious minorities. [Emphasis added]. (AR at pp 34-39): 16 Additionally, the Board refers to certain irrelevant passages in the documentary evidence. At page 4, paragraph 12 of its decision, the Board states that the “authorities have not shown that they are unwilling or unable to offer sufficiency protection from members of opposing political parties or opposing factions ...”. 17 The Applicant is not involved in politics nor is he a member of an opposing faction. He is part of a religious minority that the AL government is unable even though it may be willing to protect against its own goons and the militant Muslim faction where the security forces simply watch as persecution continues. No change in circumstances can be said to be in effect in regard to religious minorities could be deemed as effective 18 It is therefore objectively reasonable for the Applicant, as an active member of a religious minority, to fear returning to his country despite that change in government since the change of circumstances is clearly not substantial, durable and effective.

V. Conclusion 19 The country evidence clearly demonstrates that the Applicant has met the test set out in Adjei v. Canada (Minister of Employment & Immigra- tion), [1989] 2 F.C. 680 (Fed. C.A.); Chichmanov v. Canada (Minister of Employment & Immigration), FCA A-243-91 (Sep 16, 1992), [1992] F.C.J. No. 832 (Fed. C.A.) (QL/Lexis); Tong v. Canada (Minister of Employment & Immigration), FCA A-168-92 (Dec 9, 1993), [1993] F.C.J. No. 1376 (Fed. C.A.) (QL/Lexis). 20 The Applicant has a genuine fear of returning to his country and his fear is reasonable (Tong, above). 21 Due to all of the above, the entire matter is to be returned to the Board to be heard anew by a differently constituted panel. Barua v. Canada (MCI) Michel M.J. Shore J. 11

Judgment THIS COURT ORDERS that the Applicant’s application for judicial review be returned to the Board to be heard anew by a differently constituted panel. No question of general importance for certification. Application granted. 12 IMMIGRATION LAW REPORTER 7 Imm. L.R. (4th)

[Indexed as: Scott v. Canada (Minister of Citizenship & Immigration)] Devon Clifton Scott, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-3053-11 2012 FC 109 Russel W. Zinn J. Heard: November 30, 2011 Judgment: January 27, 2012 Immigration and citizenship –––– Refugee protection — Practice and procedure in refugee claims — Judicial review — Natural justice — Procedural fairness –––– Applicant was citizen of Jamaica — Applicant came to Canada and made refugee claim in 2009 — Board’s scheduling department called and left messages for applicant’s immigration consultant, but messages were not returned — Board then sent consultant notice to appear for hearing on March 4, 2011 — Board also sent letter, which provided that if confirmation readiness form was not completed within 20 days, hearing would become show cause or abandonment hearing — Consultant unsuccessfully sought to postpone hearing — On March 4, 2011, applicant learned that request for postponement had been denied — Board proceeded to hear claim on merits — Board rejected applicant’s claim for refugee protection — Applicant brought application for judicial review — Application granted — Board breached principles of natural justice and fairness — Behaviour of consultant was outrageous and unprofessional — Applicant was not notified by consultant — Neither applicant nor consultant sent form to board — According to board’s own processes, hearing on merits ought not to have taken place, but rather show cause hearing ought to have been held — Procedural fairness dictated that board follow its established process and provide applicant with that opportunity. Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 168 — referred to

APPLICATION for judicial review of board’s decision rejecting applicant’s claim for refugee protection.

Ali Amini, for Applicant Prathima Prashad, for Respondent Scott v. Canada (Minister of Citizenship & Immigration) Russel W. Zinn J. 13

Russel W. Zinn J.:

1 The applicant is Devon Clifton Scott. The Style of Cause will be ordered amended to reflect his correct name. Mr. Scott is a citizen of Ja- maica. He came to Canada on June 28, 2008, and made a refugee claim one year later which was rejected by the Refugee Protection Division of the Immigration and Refugee Board on March 22, 2011. 2 It is quite possible that his claim for protection has no merit; however, the Board’s decision must be remitted back to it for determination because the Board breached the principles of natural justice and fairness. 3 On November 22, 2010 and December 9, 2010, the Board’s scheduling department called and left messages on the voicemail of Desmond Cherrington, a registered member of The Canadian Society of Immigra- tion Consultants, and the consultant retained by the applicant to represent his interests in his refugee claim. Neither message was returned by the applicant’s consultant. 4 The Board therefore sent a Notice to Appear to the applicant’s consultant dated January 17, 2011 for a hearing on March 4, 2011. The next day, January 18, 2011 the Board sent the applicant a letter enclosing a Confirmation of Readiness form. The cover letter stated, in part, as follows: If the RPD does not receive the completed reply form within the 20 days, the RPD will commence abandonment proceedings in connection with your claim under section 168 of the Immigration and Refu- gee Protection Act. In that case, the hearing scheduled on the date indicated above [March 4, 2011] will become a show cause or abandonment hearing. You will be given an opportunity to explain why your claim should not be declared abandoned at that hearing [emphasis in original]. 5 On February 7, 2011, the Board received a letter from the consultant seeking a postponement of the hearing as he would not be in the country on that date. The earliest alternative hearing date he would be available was May 27, 2011. 6 The Board dismissed the application to change the hearing date and provided extensive reasons. It advised the consultant that “[i]f you are unable to attend on the scheduled date or find a counsel to replace you, please notify the claimant of that forthwith, in order to give [him] an opportunity to make other arrangements for counsel, if [he] so wishes.” 14 IMMIGRATION LAW REPORTER 7 Imm. L.R. (4th)

7 At the March 4, 2011 hearing, the applicant was unrepresented. He submitted a letter from his consultant, dated February 27, 2011, repeating the previously denied request for a postponement. It reads as follows: To whom it may concern: I’m Desmond Cherrington and I’m [counsel] for Mr. Devon Scott, File number: TA9-15294. The intent of this letter is to inform you that Mr. Scott’s hearing is scheduled for March 4th, 2011. Mr. Devon Scott’s hearing was scheduled without my consultation. I must admit that I have been absent from Canada frequently within the last year as I was putting together an office outside of Canada. After my return to Canada on the 3rd of February, 2011 and speaking to the RPD regarding this hearing date, I was informed that the RPD [has] made a few attempts to secure a schedule date for Mr. Scott. Hence, the RPD has gone ahead and schedule this appointment without my consent. Since learning of this date, I then began the process of preparing the client for his hearing in regards to requesting the police reports from Jamaica as well as his medical records. These documents [have] not been made available to me, to date. I am in constant contact with the Jamaican police office in Falmouth, where the incidents were re- corded and [I have] been advised that the documents are pulled and [are] being processed. Please note also, that Mr. Devon Scott, the client, has been on the telephone almost daily with the police station there in Jamaica as he makes all efforts to have the police speed up their process of issuing his police reports for this hearing. Additionally, I am unavailable to attend this hearing due the fact that I had prior standing appointments out of country, which I am unable to get out of. Since finding out the date of this hearing, I have made attempt[s] to have this hearing postpone[ed] without any success from the IRB, who refused my request for postponement. Upon receipt of the IRB’s decision, I have since attempted to make alternative arrangements without any success. Due to the fact that Mr. Scott’s evidence in his hearing depends heavily on proof of what is outlined in his PIF and the fact that we were not given enough time to secure the documents, as well as the burden of proof and natural justice to a fair hearing [t]o Mr. Scott, that on these grounds I’m requesting a postponement. Please adjourn this hearing until after my return to Toronto, and will be available during the month of May 7th, 2011 and onwards. As well I am confident that I will have all the client’s police reports and medical proof. I sincerely apologize for any inconvenience this may cause. At this time, I also want to point out that this date was reached without my consultation of availability. Scott v. Canada (Minister of Citizenship & Immigration) Russel W. Zinn J. 15

Sincerely yours, Desmond Cherrington. 8 The applicant attests in an affidavit filed in this matter that he only learned at the hearing on March 4, 2001 that the first request for a postponement had been denied. The applicant’s consultant, prior to his departure to Jamaica, gave the applicant the letter dated February 27, 2011 and instructed him to provide it to the Board. 9 At the hearing, the applicant asked the Board for a postponement as he wanted representation. The Board refused and proceeded to hear the claim on the merits. 10 On the basis of the record before the Court, the behaviour of the applicant’s consultant was outrageous and unprofessional. I wish to make it clear that Mr. Scott was represented by different (and competent) counsel on this application. The Board, on at least two occasions, called the applicant’s consultant and left messages in an attempt to schedule a hearing date. After not receiving a response, the Board, by letter dated January 17, 2011, scheduled the hearing for March 4, 2011. On February 7, 2011, the Board received a letter from the applicant’s counsel requesting an adjournment. The Board denied the request and provided several reasons. In that same decision, the Board informed the consultant that should he be unable to attend on the scheduled date or find counsel to replace him, to notify the applicant in order to give him an opportunity to make other arrangements for counsel. 11 The applicant was not notified by his consultant. In fact, four days before the hearing the applicant was made aware that his consultant would be out of the country on the hearing date and would not be able to represent him. As previously stated, the applicant was given a letter to present to the Board at the hearing requesting a postponement. In light of the earlier rejection of that request, an experienced consultant would have understood that it was very unlikely that the Board would grant the requested adjournment. 12 The fact that the applicant’s consultant was absent from Canada, setting up an office in Jamaica, is no excuse for his conduct; business ven- tures do not come before professional obligations. If he is unable to properly represent his clients, he should not be representing them at all. 13 The respondent submits that the applicant should bear the consequences of his counsel’s misconduct for two main reasons: (1) the applicant is bound by the decisions of his legal representative absent proof of a formal complaint; and (2) the applicant is also to blame. 16 IMMIGRATION LAW REPORTER 7 Imm. L.R. (4th)

14 The respondent’s submission overlooks the Board’s letter of January 18, 2011 and its statement to the applicant that if he failed to send in the Confirmation of Readiness form, the hearing on March 4, 2001 would become a show cause or abandonment hearing. Neither the applicant nor his consultant sent that form to the Board. According to the Board’s own processes, the hearing on the merits ought not to have taken place; rather a show cause hearing ought to have been held. It was not. Although the applicant may not have been successful in a show cause hearing and it may be that the Board would have declared his claim for protection to have been abandoned, procedural fairness dictates that the Board follow its established process and provide the applicant with that opportunity. 15 For that reason, this application must be allowed and the claim remitted back to be determined by a new Member. 16 Neither party proposed a question for certification.

Judgment THIS COURT’S JUDGMENT is that: 1. The Style of Cause is amended to change the applicant from SCOTT CLIFTON DEVON to DEVON CLIFTON SCOTT; 2. This application is allowed, the decision of the Board is set aside and the applicant’s claim for refugee protection is returned for determination by a different Board member; and 3. No question is certified. Application granted. Ledda v. Canada (MCI) 17

[Indexed as: Ledda v. Canada (Minister of Citizenship & Immigration)] Roben Corpuz Ledda, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-5582-11 2012 FC 14 Fran¸cois Lemieux J. Heard: October 13, 2011 Judgment: January 4, 2012* Immigration and citizenship –––– Exclusion and removal — Removal from Canada — Removal orders — Stay of execution –––– Applicant was citizen of Philippines and became permanent resident of Canada in October 1990 after mother’s successful sponsorship — He was convicted of forging cheque and of sexual assault — Tribunal then issued deportation order following hearing — Applicant appealed to Immigration Appeal Division (“IAD”) but was unsuccessful — Applicant brought application for stay of removal — Application granted — Stay of applicant’s removal was granted until leave was decided and if granted, until judicial review application was determined — Applicant met serious question to be tried — Serious issue was whether IAD member properly took into account relevant factors to extend time for applicant to commence appeal when he found that applicant’s former counsel was incompetent, particularly in not filing notice of appeal from Immigration Division decision to issue deportation order against him and also finding he did have arguable case for discretionary stay on conditions. Cases considered by Fran¸cois Lemieux J.: Canada (Minister of Citizenship & Immigration) v. Canada (Immigration & Refugee Board - Appeal Division) (2000), 2000 CarswellNat 3418, 2000 CarswellNat 538, 4 Imm. L.R. (3d) 167, (sub nom. Canada (Minister of Citizenship & Immigration) v. Immigration & Refugee Board (Can.)) 254 N.R. 88, (sub nom. Canada (Minister of Citizenship & Immigration) v. To- ledo) [2000] 3 F.C. 563, 187 D.L.R. (4th) 137, (sub nom. Canada (Minister of Citizenship & Immigration) v. Immigration & Refugee Board (Can.)) 181 F.T.R. 88, [2000] F.C.J. No. 438 (Fed. C.A.) — referred to

*An amended replacement copy issued by the court on March 29, 2012 has been incoporated herein. 18 IMMIGRATION LAW REPORTER 7 Imm. L.R. (4th)

Canada (Minister of Citizenship & Immigration) v. Rumpler (2008), 2008 FC 1264, 76 Imm. L.R. (3d) 237, 336 F.T.R. 285 (Eng.), 2008 CarswellNat 4258, 2008 CarswellNat 5085, 2008 CF 1264 (F.C.) — distinguished Grewal v. Canada (Minister of Employment & Immigration) (1985), 63 N.R. 106, [1985] 2 F.C. 263, 1985 CarswellNat 43, 1985 CarswellNat 43F, [1985] F.C.J. No. 144 (Fed. C.A.) — followed R. v. B. (G.D.) (2000), [2000] 8 W.W.R. 193, 81 Alta. L.R. (3d) 1, 2000 SCC 22, 2000 CarswellAlta 348, 2000 CarswellAlta 349, 143 C.C.C. (3d) 289, 261 A.R. 1, 224 W.A.C. 1, 32 C.R. (5th) 207, 184 D.L.R. (4th) 577, [2000] 1 S.C.R. 520, 253 N.R. 201, [2000] S.C.J. No. 22 (S.C.C.) — followed Rumpler v. Canada (Minister of Citizenship & Immigration) (2006), 2006 Car- swellNat 4492, 2006 FC 1485, 2006 CarswellNat 5154, 2006 CF 1485, 60 Imm. L.R. (3d) 71, [2007] 3 F.C.R. 702, 58 Admin. L.R. (4th) 307, 304 F.T.R. 280 (Eng.), [2006] A.C.F. No. 1888, [2006] F.C.J. No. 1888 (F.C.) — distinguished Tesoro v. Canada (Minister of Citizenship & Immigration) (2005), 2005 Car- swellNat 1083, 2005 FCA 148, 2005 CarswellNat 2049, 334 N.R. 306, 2005 CAF 148, [2005] 4 F.C.R. 210, [2005] F.C.J. No. 698 (F.C.A.) — referred to Statutes considered: Criminal Code, R.S.C. 1985, c. C-46 Generally — referred to Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 36(1)(a) — referred to s. 44(1) — referred to s. 63(3) — referred to s. 71 — considered

APPLICATION by applicant for stay of removal.

Bjorn Harsanyi, for Applicant Rick Garvin, for Respondent

Fran¸cois Lemieux J.: I. Introduction 1 On October 14, 2011, I granted a temporary stay from the scheduled removal of the Applicant on Monday, October 17, 2011 to the Philippines. 2 In the context of the irreparable harm argument an issue arose which I felt needed further submissions. That issue was whether, if removed, his application to the Immigration Appeal Division (IAD) to re-open his appeal/extending time to do so, would become moot because the IAD Ledda v. Canada (MCI) Fran¸cois Lemieux J. 19

would have lost jurisdiction to rule on the matter if the Applicant’s outstanding leave and judicial review from an earlier refusal to reopen/extend was successful. I asked for further submissions on the point. 3 Counsel for the Applicant principally relying on the Federal Court decision in Canada (Minister of Citizenship & Immigration) v. Rumpler, 2008 FC 1264 (F.C.) (Rumpler 2008), argued that the central issue which this Court raised during the stay hearing was not the loss of the Appli- cant’s status as a permanent resident per se which was the problem but the fact that the deportation will have been executed. In his view, the IAD cannot take jurisdiction over his case if the removal order aimed at him is executed. As a result, his appeal is rendered nugatory and he will suffer irreparable harm. 4 Counsel for the Minister took the opposite view. He submitted that the Applicant’s argument is based on an incorrect assessment of the Ap- plicant’s current status and also on an incorrect reading of Rumpler. He further submitted the IAD retains jurisdiction over the Applicant’s application to re-open and for an extension of time to appeal for the simple reason that his motion to the IAD came before the date of his removal. As a result, Counsel for the Minister argued the IAD’s discretionary and continuing jurisdiction was engaged while the Applicant was still in Can- ada. Based on the Federal Court of Appeal’s decision in Tesoro v. Canada (Minister of Citizenship & Immigration), 2005 FCA 148 (F.C.A.) (Tesoro) according to Counsel for the Minister the IAD does retain jurisdiction; it would not have jurisdiction if as in Rumpler, the Applicant had not applied to that tribunal until after he had been removed (my emphasis). 5 Counsel for the Minister, relying on the Federal Court of Appeal’s decision in Canada (Minister of Citizenship & Immigration) v. Canada (Immigration & Refugee Board - Appeal Division), [2000] 3 F.C. 563 (Fed. C.A.), stated this case stood for the proposition that there is no reason to delay the removal after Mr. Toledo had applied for a re-open- ing of his appeal but before that motion has been finally determined. 6 Counsel for the Applicant submitted in reply the jurisprudence cited by counsel for the Minister was inapplicable because the proceeding which the applicant engaged the IAD was an application to reopen/extend time to appeal which was refused by the IAD and hence unfortunately never became a live appeal before that tribunal. As a result, he submitted the IAD’s discretionary and continuing jurisdiction has never been engaged while the Applicant is in Canada and remains not 20 IMMIGRATION LAW REPORTER 7 Imm. L.R. (4th)

engaged today. He submits if it were otherwise the Minister would not be in a position to remove him from Canada (my emphasis). 7 In his submission, it was due to the incompetence of his former counsel that the Applicant never filed a notice of appeal within thirty days of the Immigration Division (ID) hearing which issued his deportation order. In other words, the IAD when it denied the applicant’s motion to reopen/extend time, refused to take jurisdiction.

II. Background facts 8 The Applicant is a citizen of the Philippines, born there in June 1961. He became a permanent resident of Canada in October 1990 after his mother’s successful sponsorship. 9 Not having run afoul of the law in Canada since 1990, he was, however, charged for the first time on December 8, 2004 of uttering on No- vember 12, 2003 a forged cheque in the amount of $485.67. 10 He was convicted on that charge on March 10, 2005, after a plea of guilty; he received probation and a suspended sentence of nine months. Under the Criminal Code (R.S.C., 1985, c. C-46) the charge of uttering a forged document is punishable by a maximum term of imprisonment not to exceed ten years. 11 On August 3, 2007 he was charged for an incident (sexual assault) which occurred on April 22, 2007. He entered, on June 8, 2010, a guilty plea on this charge. That plea was confirmed on October 14, 2010; he was convicted and received a jail sentence of one year. 12 In respect of both convictions, the Applicant was represented by the same lawyer specializing in criminal law. 13 In the interval, his immigration problems evolved in the following way: a. On May 24, 2010 the Applicant received a letter from the Canada Border Services Agency (CBSA) indicating that a report under section 44(1) of the Immigration and Refugee Protection Act, 2001, c. 27 (IRPA) may be prepared alleging his inadmissibility to Canada under paragraph 36(1)(a) of IRPA as a result of his 2005 conviction. He was warned, if a report was prepared, that an admissibility hearing may be held resulting in the issuance of a removal order. The letter invited written submissions why a removal order should not be sought. The Applicant states he consulted the lawyer who had and was representing him on the criminal charges. No submissions were made to CBSA on the issue. Ledda v. Canada (MCI) Fran¸cois Lemieux J. 21

b. On May 24, 2010 CBSA advised the Applicant that it had referred a report to the Immigration Division (ID) for an admissibility hearing to determine his right to remain in Canada. c. That hearing was held on June 30, 2010 in Vancouver with a video conference feed to Edmonton where the Applicant and his previously mentioned counsel were present. The Applicant’s counsel admitted Mr. Ledda was not a Canadian citizen, he is a permanent resident and was convicted of the offence as detailed, i.e. the 2005 conviction. The Tribunal indicated given these con- cessions it did not need further submissions unless either party would like to add. The Applicant’s counsel and the Minister’s counsel indicated they had nothing further to add. The Tribunal then issued its decision which was that it was required to issue a deportation order. It advised the Applicant of his appeal rights to the Immigration Appeal Division (the IAD). The Tribunal had previously told the participants that, as a permanent resident, the Applicant had the right to appeal the deportation order to the IAD “which had a broader jurisdiction than I have”. The Tribunal explained that the IAD had more power, and could consider all circumstances of his case and humanitarian and compassionate considerations. The Applicant told the Tribunal he understood all of that. In fact, that same day, the Tribunal sent by fax to this lawyer’s office a copy of the deportation order and a copy of a Notice of Appeal form to the IAD which stated in boldface that the time limit to appeal was within 30 days. No appeal to the IAD was filed within the prescribed time (my emphasis). As will be seen the aforementioned lawyer did not send the forms to his client. 14 In November 2010, the Applicant was reported to CBSA for the sexual assault conviction in October 2010 but no referral for an admissibility proceeding was made as he was already under a removal order. 15 On May 4, 2011 he was offered a Pre-Removal Risk Assessment which was rejected June 14, 2011. No leave application was sought. 16 In May 2011 the Applicant retained his current counsel for his immigration matters (the Immigration Counsel). On May 27, 2011 his Immi- gration Counsel sent a letter to CBSA asking for a deferral of his removal indicating that he was making an application to the IAD “to reopen Mr. Ledda’s removal appeal on the 2005 conviction due to incompetent representation that has caused prejudice or a miscarriage of justice.” He attached a copy of the reopening application. [Emphasis ad- 22 IMMIGRATION LAW REPORTER 7 Imm. L.R. (4th)

ded] He asked for a deferral of removal until the outcome of the IAD application. 17 On June 2, 2011 the IAD received the application pursuant to section 71 of the IRPA on behalf of the Applicant to reopen removal order due to a failure of natural justice. That application to re-open noted that Mr. Ledda had appeal rights under subsection 63(3) of the IRPA. Counsel submitted that the reasons why the IAD should exercise its power to reopen were set out in the enclosed statutory declaration from Mr. Ledda’s criminal law counsel who frankly admitted he had never practiced in the area of Immigration law, had no knowledge of that law or of immigration procedures or institutions. The Immigration Counsel mentioned that Mr. Ledda’s criminal law counsel was trying to negotiate a lesser sentence on the 2007 assault charge and, as part of that negotiation, suggested to the Applicant that if he did nothing to oppose his immigration proceedings he might receive a lesser sentence or avoid jail time. The Immigration Counsel noted that Mr. Ledda “was very worried about going to jail and told the Immigration authorities that he would pay for his own ticket back to the Philippines and leave as soon as possible.” [Em- phasis added]. He noted that criminal law counsel had received the No- tice of Appeal form to the IAD from the ID Tribunal but did not forward this to the Applicant. His criminal law Counsel admitted he lacked experience in immigration and that he never advised the Applicant to consult an immigration lawyer. In his statutory declaration, he also admitted he himself did not consult an immigration lawyer in order to advise his client nor did he independently research the law on IAD appeals. He admitted he never filed a notice of appeal to the IAD on behalf of Mr. Ledda. 18 On June 10, 2011 the IAD received the Applicant’s Notice of Appeal filed by his Immigration Counsel. 19 On June 15, 2011, the IAD wrote to Counsel for the Applicant, the subject matter is identified as “Re: Roben Corpuz Ledda; Application to Extend time to file a Removal Order Appeal” The first paragraph of that letter reads: This will acknowledge receipt, on June 2, 2011 by courier and again on June 9, 2011 by facsimile, of your Application dated May 27, 2011. This will acknowledge receipt on June 10, 2011 of the Notice of Appeal signed June 10, 2011. We will treat your Application dated May 27, 2011 as an “Application for Extension of Time to File a Removal Order Appeal”. [Emphasis added] Ledda v. Canada (MCI) Fran¸cois Lemieux J. 23

III. The IAD’s decision 20 In its August 5, 2010 decision the IAD member wrote the following: Roben Corpuz LEDDA (the “appellant”) seeks an extension of time to file his Notice of Appeal in this matter or in the alternative applies to reopen the appeal. The proper application is to extend time, as no appeal was withdrawn, declared abandoned or dismissed such that a reopening application is appropriate. ... The appellant’s Notice of Appeal was received by the IAD on June 10, 2011 although the application to “reopen” was received on June 2, 2011. I have considered this application along with the other submissions of counsel to constitute an application to extend time and thus there was a lapse of about 11 months between the decision and the ID and the attempt to commence this appeal. [Emphasis added] 21 The IAD denied the Applicant’s motion on the ground “that the applicant has not shown that the interests of justice require that he be afforded an opportunity to pursue his appeal.” It denied an extension of time to file the appeal. 22 The IAD observed that the extension of time application was grounded in allegations that the former counsel was incompetent in representing the Applicant and because of that he was denied natural justice invoking the Supreme Court of Canada decision in R. v. B. (G.D.), 2000 SCC 22, [2000] 1 S.C.R. 520 (S.C.C.). It quoted paragraphs 26 — 28 of Justice Major’s reasons for judgment on behalf of the unanimous Su- preme Court. I would quote paragraph 29 of that decision: The approach to an ineffectiveness claim is explained in Strickland v. Washington, 466 U.S. 668(1984), per O’Connor J. The reasons contain a performance component and a prejudice component. For an appeal to succeed, it must be established, first, that counsel’s acts or omissions constituted incompetence and second, that a miscarriage of justice resulted. Incompetence is determined by a reasonableness standard. The analysis proceeds upon a strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance. The onus is on the appellant to establish the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The wisdom of hindsight has no place in this assessment. Miscarriages of justice may take many forms in this context. In some instances, counsel’s performance may have resulted in procedural 24 IMMIGRATION LAW REPORTER 7 Imm. L.R. (4th)

unfairness. In others, the reliability of the trial’s result may have been compromised. In those cases where it is apparent that no prejudice has occurred, it will usually be undesirable for appellate courts to consider the performance component of the analysis. The object of an ineffectiveness claim is not to grade counsel’s performance or professional conduct. The latter is left to the profession’s self-governing body. If it is appropriate to dispose of an ineffectiveness claim on the ground of no prejudice having occurred, that is the course to follow (Strickland, supra, at p. 697). [Emphasis added] 23 The IAD then wrote the following at paragraph 5 of its reasons for decision: The reason I have gone to the original quote [of the reasons for judgement in GDB] is due to the use by counsel for the appellant, in his submissions, of the disjunctive “or”, whereas the G.D.B. decision uses the conjunctive “and”. In this instance, this distinction matters because, in reviewing the litany of allegations of incompetence, which are not challenged by the Minister and one supported by a statutory declaration from the appellant’s former counsel, I have no doubt that the appellant has demonstrated, on the balance of probabilities, that there was incompetence by his former counsel. If the appellant’s current circumstances were as a consequence of that incompetence and he was an innocent victim of that incompetence, then the prejudice element would surely be met and likely there would be a miscarriage of justice. I note, however that there must be both incompetence of counsel causing prejudice and a miscarriage of justice. [Emphasis added and footnote excluded] 24 After examining the evidence and, in particular, Mr. Ledda’s affidavit where he mentions his former counsel’s advice that: ...he should comply with what immigration authorities told him to me to do and not to oppose my removal from Canada on the 2005 conviction in the hopes that I would not have to go to jail for the 2007 charges. I was very worried about going to jail and listened to my lawyer.” [Emphasis added] 25 Mr. Ledda further deposed in his affidavit that on May 10, 2010: I told immigration authorities that I would pay my own ticket back to the Philippines and that I would leave Canada as soon as possible. I believed, based on the advice.... that if I agreed to being removed Ledda v. Canada (MCI) Fran¸cois Lemieux J. 25

from Canada as soon as possible that I would not have to go to jail on the 2007 charges. [Emphasis added] 26 The IAD then wrote: Thus the appellant, in consultation with his counsel, effected a strategy designed to lessen the sentence in relation to the 2007 offence (the materials do not appear to disclose what that conviction was for) in exchange for him; abandoning his appeal rights, leaving Canada “as soon as possible” and paying for his own passage. In this context, the alleged incompetence of counsel in failing to pursue the appellant’s appeal rights in the IAD appears more a strategy which may or may not have reduced his sentence, than incompetence. [Emphasis added] 27 The IAD then went on to consider the Federal Court of Appeal’s decision in Grewal v. Canada (Minister of Employment & Immigration), [1985] 2 F.C. 263 (Fed. C.A.) as to the factors to be taken into account on an extension of time to file a judicial review application which it summarized to include: i. whether there is any satisfactory explanation by the applicant for not bringing the application within the prescribed time limit; ii. whether the applicant intended within the time frame to bring the application and had that intention continuously thereafter; iii. whether there was any abandonment of that intention on the part of the applicant or failure by the applicant to pursue his intention as diligently as could reasonably be expected of him which would mitigate against the grant of such extension; iv. whether the respondent would suffer any prejudice were the extension to be granted; and v. whether the applicant has an arguable case for setting aside the decision in question. [9] The above factors are neither exhaustive nor are all factors required for an extension to be granted and the existence or absence of a factor may be ascribed weight according to what is appropriate in all circumstances. 28 The IAD member concluded that he did not find Mr. Ledda’s explanation for the delay in filing the appeal satisfactory. In its view the delay was incurred in order to negotiate a lesser sentence; it was pursued by a strategy of agreeing to return to his country of citizenship to avoid or lessen jail time. In sum, Mr. Ledda’s failure to file his appeal on time 26 IMMIGRATION LAW REPORTER 7 Imm. L.R. (4th)

was by choice rather than as a consequence of counsel incompetence. Moreover, he did not demonstrate he had an intention to appeal within the allotted time frame. It concluded Mr. Ledda had clearly failed to diligently pursue his appeal rights and arguably abandoned them as part of his strategy in relation to his criminal sentencing. 29 The IAD did find however that: (1) since he had a Canadian born child and family in Canada “he does have an arguable case for the exercise of humanitarian and compassionate discretion to stay the removal order on terms and conditions”; (2) the Minister had not advanced any prejudice if the extension of time was granted. [Emphasis added] 30 The IAD member concluded his analysis stating: In this matter, the appellant has not shown that the interests of justice require that he be afforded an opportunity to pursue this appeal and the application to extend time to file the appeal is denied. NOTICE OF DECISION The Appellant’s application dated June 1, 2011 requesting an extension of tie to file his Notice of Appeal is denied. [Emphasis added]

IV. Analysis 31 The tri-partite test to obtain a stay is well-known. In my view, the applicant has met the serious question to be tried test. The serious issue is whether the IAD member properly took into account the relevant factors to extend time for the Applicant to commence an appeal when he found that the Applicant’s former counsel was incompetent, particularly in not filing a notice of appeal from the ID decision to issue a deportation order against him and also finding he did have an arguable case for a discretionary stay on conditions. 32 I agree with counsel for the Applicant the IAD’s jurisdiction has yet to be engaged given that the member refused to extend time for him to engage in the IAD’s discretionary jurisdiction by refusing time to file a notice of appeal from the ID’s decision. His removal prior to leave being granted and if granted until the judicial review application is decided would cause the loss of the IAD jurisdiction under section 71 of the IRPA. Ledda v. Canada (MCI) Fran¸cois Lemieux J. 27

33 In short, there is no present appeal to the IAD by the Applicant. None of the cases cited by Counsel for the Respondent deal with the specific factual circumstances of this case. Justice Blanchard’s decision in Rumpler v. Canada (Minister of Citizenship & Immigration), 2006 FC 1485, [2007] 3 F.C.R. 702 (F.C.) (Rumpler 2006) did not turn on section 71 of the IRPA and the issue of mootness was not decided (see paragraphs 12 and 13) and Justice Pinard expressed the view at paragraph 13 of Rumpler that the IAD had not continuing jurisdiction despite the fact he had left Canada and had executed the removal order before he filed a notice of appeal. 34 In the circumstances, the balance of convenience favours the Minister.

Order THIS COURT ORDERS that a stay of the Applicant’s removal is granted until leave is decided and if granted until the judicial review application is determined. Application granted. 28 IMMIGRATION LAW REPORTER 7 Imm. L.R. (4th)

[Indexed as: Canada (Minister of Citizenship & Immigration) v. El-Koussa] The Minister of Citizenship and Immigration, Applicant and Dina El-Koussa, Respondent Federal Court Docket: T-699-11 2012 FC 13 D.G. Near J. Heard: December 13, 2011 Judgment: January 4, 2012 Immigration and citizenship –––– Citizenship — Application for grant of or retention of citizenship — Powers and duties of citizenship judge –––– Re- spondent was born in Lebanon — Respondent became permanent resident of Canada in 2002, and on August 1, 2007, respondent applied for Canadian citizenship — In August 2008, respondent returned to Lebanon with her husband and their two Canadian-born children — On February 25, 2010, respondent was sent notice to appear and asked to complete questionnaire and provide supporting information — Respondent did not fulfill requests for further information and was referred to citizenship judge for hearing — Respondent submitted completed residency questionnaire and some supporting documentation within 30 days of hearing — Citizenship judge granted citizenship to respondent — Min- ister of Citizenship and Immigration appealed — Appeal allowed — Citizenship judge’s reasons were inadequate — Citizenship judge should have at least specified which test for residency was used and how it was or was not met — Re- quirements of clarity, precision and intelligibility were not met — It was unclear as to why decision was made or what evidence informed citizenship judge’s conclusion that respondent should be granted citizenship — Given difficulties in acquiring supporting documentation from respondent to confirm residency, there should have been some indication as to why there was now sufficient evidence to support this finding. Immigration and citizenship –––– Citizenship — Grant of citizenship — Re- quirements for grant of citizenship — Residence in Canada — General principles –––– Respondent was born in Lebanon — Respondent became permanent resident of Canada in 2002, and on August 1, 2007, respondent applied for Canadian citizenship — In August 2008, respondent returned to Lebanon with her husband and their two Canadian-born children — On February 25, 2010, respondent was sent notice to appear and asked to complete questionnaire and provide supporting information — Respondent did not fulfill requests for further information and was referred to citizenship judge for hearing — Respon- Canada (Minister of Citizenship & Immigration) v. El-Koussa 29

dent submitted completed residency questionnaire and some supporting documentation within 30 days of hearing — Citizenship judge granted citizenship to respondent — Minister of Citizenship and Immigration appealed — Appeal allowed — Citizenship judge’s reasons were inadequate — Citizenship judge should have at least specified which test for residency was used and how it was or was not met — Requirements of clarity, precision and intelligibility were not met — It was unclear as to why decision was made or what evidence informed citizenship judge’s conclusion that respondent should be granted citizenship — Given difficulties in acquiring supporting documentation from respondent to confirm residency, there should have been some indication as to why there was now sufficient evidence to support this finding. Cases considered by D.G. Near J.: Canada (Minister of Citizenship & Immigration) v. Behbahani (2007), 2007 CarswellNat 2157, 2007 FC 795, 2007 CarswellNat 4147, 2007 CF 795, [2007] F.C.J. No. 1039 (F.C.) — referred to Canada (Minister of Citizenship & Immigration) v. Jeizan (2010), 2010 Car- swellNat 2159, 2010 CF 323, 2010 FC 323, 2010 CarswellNat 633, [2010] F.C.J. No. 373 (F.C.) — followed Canada (Minister of Citizenship & Immigration) v. Salim (2010), 2010 Car- swellNat 5171, 92 Imm. L.R. (3d) 196, 2010 CF 975, 2010 CarswellNat 3654, 2010 FC 975, [2010] F.C.J. No. 1219 (F.C.) — referred to Canada (Ministre de la Citoyennet´e & de l’Immigration) c. Abou-Zahra (2010), 2010 CF 1073, 2010 CarswellNat 4088, 2010 CarswellNat 4678, 2010 FC 1073, [2010] F.C.J. No. 1326 (F.C.) — referred to Chowdhury v. Canada (Minister of Citizenship & Immigration) (2009), 2009 CarswellNat 2153, 2009 FC 709, 2009 CF 709, 2009 CarswellNat 5722, 347 F.T.R. 76 (Eng.), 82 Imm. L.R. (3d) 1, [2009] F.C.J. No. 875 (F.C.) — referred to Martinez-Caro v. Canada (Minister of Citizenship & Immigration) (2011), 2011 CF 640, 2011 CarswellNat 3135, 2011 CarswellNat 2281, 2011 FC 640, 98 Imm. L.R. (3d) 288, [2011] F.C.J. No. 881, [2011] A.C.F. No. 881 (F.C.) — referred to New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1, 69 Admin. L.R. (4th) 1, 69 Imm. L.R. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) [2008] 1 S.C.R. 190, 844 A.P.R. 1, (sub nom. Dunsmuir v. New Brunswick) 2008 C.L.L.C. 220-020, D.T.E. 2008T-223, 329 N.B.R. (2d) 1, (sub nom. Dunsmuir v. New Brunswick) 170 L.A.C. (4th) 1, (sub nom. Dunsmuir v. New Brunswick) 291 D.L.R. (4th) 577, 2008 CarswellNB 124, 2008 CarswellNB 125, 2008 SCC 9, 64 C.C.E.L. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) 95 L.C.R. 65, [2008] S.C.J. No. 9, [2008] A.C.S. No. 9 (S.C.C.) — considered Pourzand v. Canada (Minister of Citizenship & Immigration) (2008), 2008 CF 395, 2008 CarswellNat 1860, 2008 CarswellNat 831, 2008 FC 395, 71 Imm. L.R. (3d) 289, [2008] F.C.J. No. 485 (F.C.) — referred to 30 IMMIGRATION LAW REPORTER 7 Imm. L.R. (4th)

Vancouver International Airport Authority v. P.S.A.C. (2010), 320 D.L.R. (4th) 733, 2010 CAF 158, 84 C.C.E.L. (3d) 51, 2010 CarswellNat 3247, (sub nom. Vancouver International Airport Authority v. Public Service Alliance of Canada) 403 N.R. 363, 196 L.A.C. (4th) 1, 9 Admin. L.R. (5th) 79, 2010 FCA 158, 2010 CarswellNat 1700, [2010] F.C.J. No. 809 (F.C.A.) — considered Statutes considered: Citizenship Act, R.S.C. 1985, c. C-29 Generally — referred to s. 5(1) — considered s. 5(1)(c) — considered s. 14(1)(a) — considered s. 14(2) — considered s. 14(3) — considered s. 14(5) — pursuant to s. 15 — considered

APPEAL by Minister of Citizenship and Immigration from citizenship judge’s decision granting citizenship to respondent.

Patricia MacPhee, for Applicant Elizabeth A. Wozniak, for Respondent

D.G. Near J.:

1 This is an appeal of the decision of a Citizenship Judge under subsection 14(5) of the Citizenship Act, RSC, 1985, c C-29 (the Act). The Ap- plicant (the Minister of Citizenship and Immigration) contests the granting of citizenship to the Respondent (Dina El-Koussa) claiming that there was insufficient evidence to establish she met the residency requirements under subsection 5(1)(c) of the Act and the Citizenship Judge failed to provide reasons. 2 Having considered the positions of both parties, I must allow this appeal.

I. Background 3 The Respondent was born in Lebanon. She became a permanent resident of Canada on August 5, 2002. She moved to Montreal and relocated to Halifax in November 2004. She purchased a condominium in Halifax with her husband in early 2007 that was sold before the couple returned to Lebanon with their two Canadian-born children in August 2008. Canada (Minister of Citizenship & Immigration) v. El-Koussa D.G. Near J. 31

4 She had applied for Canadian citizenship on August 1, 2007. The relevant residency period was from August 1, 2003 to August 1, 2007. She declared an absence of 27 days, leaving her physically present in Canada for 1433 days. This would be above the 1095 day minimum requirement. 5 On February 25, 2010, the Respondent was sent a Notice to Appear. She was also asked to complete the questionnaire and provide supporting information. This letter was returned to Citizenship and Immigration Canada (CIC) unclaimed on March 18, 2010. Since the Respondent was back in Lebanon, she claims not to have received the letter until after the deadline had passed. 6 As the Respondent had yet to fulfill requests for further information, she was referred to a Citizenship Judge for a hearing on January 12, 2011. 7 The Citizenship Judge’s notes from the hearing suggest that the Re- spondent answered questions regarding her return to Lebanon in 2008. However, she did not bring a completed residency questionnaire or the requested documentation. The Citizenship Judge asked that this information be submitted within 30 days. 8 She submitted a completed residency questionnaire and some supporting documentation in that timeframe (including her children’s birth certificates, passport history, deed and mortgage, history of medical care, tax returns, utility bills in her husband’s name and a letter from a church referring to her membership). 9 On February 22, 2011, the Respondent’s citizenship application was approved. The decision consisted of a “Notice to the Minister of the De- cision of the Citizenship Judge” form with checkmarks that she had met the residency requirements of subsection 5(1) of the Act. This form was signed by the Citizenship Judge.

II. Issues 10 This appeal raises the following issues: (a) Did the Citizenship Judge provide adequate reasons for approving the Respondent’s application? (b) Did the Citizenship Judge err in finding that the Respondent met the residency requirements under subsection 5(1)(c) of the Act?

III. Standard of Review 11 As an aspect of procedural fairness and natural justice, adequacy of reasons is reviewed on a standard of correctness (see Canada (Ministre 32 IMMIGRATION LAW REPORTER 7 Imm. L.R. (4th)

de la Citoyennet´e & de l’Immigration) c. Abou-Zahra, 2010 FC 1073, [2010] F.C.J. No. 1326 (F.C.) at para 16; Chowdhury v. Canada (Minister of Citizenship & Immigration), 2009 FC 709, [2009] F.C.J. No. 875 (F.C.) at para 29). 12 In Pourzand v. Canada (Minister of Citizenship & Immigration), 2008 FC 395, 2008 CarswellNat 831 (F.C.) at para 19, it was found that reasonableness is the applicable standard of review for a citizenship judge’s determination as to whether an applicant meets the residency requirement since it is a question of mixed fact and law. 13 Reasonableness is “concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process” as well as “whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law” (New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9, [2008] 1 S.C.R. 190 (S.C.C.) at para 47).

IV. Analysis A. Did the Citizenship Judge Provide Adequate Reasons for Approving the Respondent’s Application? 14 Citizenship judges have a statutory obligation to provide reasons under subsection 14(2) that reads: Consideration by citizenship judge 14. (1) An application for (a) a grant of citizenship under subsection 5(1) or (5), [...] shall be considered by a citizenship judge who shall, within sixty days of the day the application was referred to the judge, determine whether or not the person who made the application meets the requirements of this Act and the regulations with respect to the application. [...] Advice to Minister (2) Forthwith after making a determination under subsection (1) in respect of an application referred to therein but subject to section 15, the citizenship judge shall approve or not approve the application in accordance with his determination, notify the Minister accordingly and provide the Minister with the reasons therefor. Notice to applicant Canada (Minister of Citizenship & Immigration) v. El-Koussa D.G. Near J. 33

(3) Where a citizenship judge does not approve an application under subsection (2), the judge shall forthwith notify the applicant of his decision, of the reasons therefor and of the right to appeal. Examen par un juge de la citoyenneté 14. (1) Dans les soixante jours de sa saisine, le juge de la citoyenneté statue sur la conformité — avec les dispositions applicables en l’espèce de la présente loi et de ses règlements — des demandes dé- posées en vue de: a) l’attribution de la citoyenneté, au titre des paragraphes 5(1) ou (5); [...] [...] Information du ministre (2) Aussitôt après avoir statué sur la demande visée au paragraphe (1), le juge de la citoyenneté, sous réserve de l’article 15, approuve ou rejette la demande selon qu’il conclut ou non ... la conformité de celleci et transmet sa décision motivée au ministre. Information du demandeur (3) En cas de rejet de la demande, le juge de la citoyenneté en in- forme sans délai le demandeur en lui faisant connaˆıtre les motifs de sa décision et l’existence d’un droit d’appel. 15 The reasons requirement as it pertains to the granting of citizenship was also elaborated on in Canada (Minister of Citizenship & Immigration) v. Jeizan, 2010 FC 323, [2010] F.C.J. No. 373 (F.C.) at para 17: [17] Reasons for decisions are adequate when they are clear, precise and intelligible and when they state why the decision was reached. Adequate reasons show a grasp of the issues raised by the evidence, allow the individual to understand why the decision was made and allow the reviewing court to assess the validity of the decision: see Lake v. Canada (Minister of Justice), 2008 SCC 23, [2008] S.C.J. No. 23at para. 46; Mehterian v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 545 (F.C.A.); VIA Rail Canada Inc. v. National Transportation Agency, [2001] 2 F.C. 25 (F.C.A.), [2001] 2 F.C. 25 (C.A.), at para. 22; Arastu, above, at paras. 35-36. 16 Given these principles, the Applicant asserts that the failure of the Citizenship Judge to provide reasons amounts to a breach of procedural fairness and clear error justifying the intervention of this Court (see for example Canada (Minister of Citizenship & Immigration) v. Salim, 2010 FC 975, [2010] F.C.J. No. 1219 (F.C.)). The Citizenship Judge should have at least specified which of the approved tests for residency was used and how it was or was not met (see for example Jeizan, above at para 18; 34 IMMIGRATION LAW REPORTER 7 Imm. L.R. (4th)

Canada (Minister of Citizenship & Immigration) v. Behbahani, 2007 FC 795, [2007] F.C.J. No. 1039 (F.C.)at paras 3-4). 17 The Respondent contends that the Act is silent as to the form and extent of the reasons required. She refers to CIC, Manual CP 2, s 1.20 where it is acknowledged that the “decision-maker must justify the decision” but also that “Section 15 of the Citizenship Act says there is an obligation to give reasons for a decision when a citizenship judge non- approves an application.” 18 The Respondent also stresses that the “Notice to the Minister of the Decision of the Citizenship Judge” is a convenient form approved for decision-making purposes. It allows the Citizenship Judge to check off whether or not the applicants have satisfied the requirements of subsection 5(1) of the Act and provides boxes to list the days of residency cal- culation. The box marked “has” complied with requirements was checked in this instance and the number of days was listed as 1,433, a figure above the minimum standard. While there is a box devoted to “reasons”, this is not mandatory. 19 In assessing the adequacy of reasons, the Respondent notes that “courts should make allowances for the “day-to-day” realities of administrative tribunals” as well as the “short-form modes of expression that are rooted in the expertise of the administrative decision maker” as referred to in Vancouver International Airport Authority v. P.S.A.C., 2010 FCA 158, [2010] F.C.J. No. 809 (F.C.A.) at para 17. 20 The Respondent argues that the Citizenship Judge’s notes referring to the family’s subsequent residency in Lebanon should be considered part of the decision. They demonstrate that the Citizenship Judge considered the evidence. She relies on Vancouver International Airport, above, where it was suggested that information regarding the way a decision maker reached their conclusion could be gleaned from “the record of the case and the surrounding context.” 21 While I recognize that the adequacy of reasons must be assessed in context, I am not convinced that the requirements of clarity, precision and intelligibility prescribed by Jeizan, above, were met. I remain unclear as to the why the decision was made or, more specifically, what evidence informed the Citizenship Judge’s conclusion that the Respon- dent should be granted citizenship. 22 Given the persistent difficulties in acquiring supporting documentation from the Respondent to confirm residency, there should have been some indication as to why there was now sufficient evidence to support this finding, regardless of whether the conclusion is based solely on Canada (Minister of Citizenship & Immigration) v. El-Koussa D.G. Near J. 35

meeting the physical presence requirement. In recognition of the need for additional reasons, a box is clearly provided for this purpose on the form. Reasons can be brief, but are still expected. 23 Even if I consider the Citizenship Judge’s notes as forming part of the reasons, this does not ensure their adequacy. The notes still make reference to the need for the Respondent to fill out a residency questionnaire. They note the applicable period for residency, confirm the date the Re- spondent left for Lebanon in August 2008 and make reference to her children and husband, but do not provide any clear indication as to the basis on which the decision was actually made. 24 I am currently restricted in my ability to assess whether the Citizen- ship Judge reached a reasonable conclusion on the Respondent’s residency based on the evidence. This reflects the provision of inadequate reasons.

B. Did the Citizenship Judge Err in Finding that the Respondent Met the Residency Requirements Under Subsection 5(1)(c) of the Act? 25 The Applicant’s position is that it was unreasonable for the Citizen- ship Judge to conclude that the Respondent met the residency requirements of the Act based on any of the three established tests. They insist that the Respondent did not provide all of the required information. More specifically, they suggest there was little provided in the way of banking information and utility bills in the relevant time period. 26 By contrast, the Respondent contends that the Applicant simply disagrees with the decision. She suggests that the Applicant takes issue with a failure to provide all of the required supporting documentation while understating significant pieces of evidence provided, such as her passport history. According to the Respondent, the Applicant is trying to import a qualitative analysis where a quantitative one was appropriately employed. 27 Given my discussion with respect to the adequacy of reasons, it is unnecessary for me to deal extensively with this issue. However, I must remind the Applicant that nothing precludes a Citizenship Judge from basing its conclusion solely on the strict physical presence test (seeMartinez-Caro v. Canada (Minister of Citizenship & Immigration), 2011 FC 640, [2011] F.C.J. No. 881 (F.C.)) or from arriving at the same conclusion on reconsideration with more fulsome reasons. 36 IMMIGRATION LAW REPORTER 7 Imm. L.R. (4th)

V. Conclusion 28 Inadequate reasons were provided in this instance to assess whether the Citizenship Judge’s conclusion that the residency requirements were met was reasonable. With the ongoing discussion concerning citizenship cases, it would be of great assistance to the Court if citizenship judges state clearly in one or two sentences which test they are using and explain their reasons for arriving at a particular conclusion. The detail required in these reasons will vary given the test employed and the surrounding context. However, even where it can be inferred that the physical presence in Canada test (which generally, in my view, is the test most in line with the legislation) is being used, citizenship judges must state that this is the case. Citizenship judges should also proceed to explain in more or less detail, depending on the facts of the case, why they either accepted or rejected the evidence placed before them. 29 Furthermore, where a Notice to the Minister of the Decision of the Citizenship Judge Form is used, the mere “ticking” off the boxes without any further explanation is insufficient as is the case in this matter. In some cases, supplementary notes made by the judges may sufficiently illustrate their reasoning but it would far preferable if the test utilized and an explanation as to why the judge has accepted the evidence of physical presence appears on the face of the decision. A box entitled “Reasons” has already been provided to serve this purpose. 30 For these reasons, the appeal is allowed. The matter is referred back to a different citizenship judge for re-determination.

Judgment THIS COURT’S JUDGMENT is that this appeal is allowed and the matter is referred back to a different Citizenship Judge for redetermination. Appeal allowed. Shinmar v. Canada (MCI) 37

[Indexed as: Shinmar v. Canada (Minister of Citizenship & Immigration)] Nachhattar Pal Shinmar, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-813-11 2012 FC 94 James W. O’Reilly J. Heard: September 28, 2011 Judgment: January 24, 2012 Immigration and citizenship –––– Refugee protection — Credibility — Mis- cellaneous –––– Applicant was citizen of India — Applicant’s family belonged to lower caste called Dalits — Applicant and her family were discriminated against by members of higher castes — When her parents immigrated to Canada in 2006, they left applicant to care for family’s home and land — When neighbours realized applicant was living alone, they encroached on her land and verbally abused and threatened her — Applicant sought help from police, but when they found out she was Dalit, they demeaned her and demanded money — Applicant went into hiding and came to Canada in 2009 — Applicant applied for refugee status — Board refused applicant’s claim based on her lack of credibility — Applicant brought application for judicial review — Application granted — Many of board’s findings were clearly merited — While board did not cite Gender Guidelines specifically, it respected spirit of Guidelines during hearing — Board commented on applicant’s emotional state, but most of its findings were based on other evidence before it, or absence of evidence — Board treated applicant sensitively at hearing, allowing her occasional breaks to compose herself, expressing concern about her well-being, and permitting her counsel to pose questions instead of board member himself. Immigration and citizenship –––– Refugee protection — Elements of protected refugee status — Risk of cruel and unusual treatment or punishment –––– Applicant was citizen of India — Applicant’s family belonged to lower caste called Dalits — Applicant and her family were discriminated against by members of higher castes — When her parents immigrated to Canada in 2006, they left applicant to care for family’s home and land — When neighbours realized applicant was living alone, they encroached on her land and verbally abused and threatened her — Applicant sought help from police, but when they found out she was Dalit, they demeaned her and demanded money — Applicant went into hiding and came to Canada in 2009 — Applicant applied for refugee status — Board refused applicant’s claim based on her lack of credibility — Ap- 38 IMMIGRATION LAW REPORTER 7 Imm. L.R. (4th)

plicant brought application for judicial review — Application granted — Even though board found that applicant was not credible and that events she described did not occur, there remained question of whether objective, documentary evidence could support claim under s. 97 of Immigration and Refugee Protection Act — There was nothing in board’s reasons to suggest that it turned its mind to that evidence — Therefore, board erred in not conducting specific s. 97 analysis. Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 96 — considered s. 96 “r´efugi´e” — considered s. 97 — considered

APPLICATION for judicial review of board’s decision refusing applicant’s claim for refugee protection.

Melody Mirzaagha, for Applicant Alex Kam, for Respondent

James W. O’Reilly J.: I. Overview 1 Ms. Nachhattar Pal Shinmar applied for refugee status in Canada on the basis of her fear of persecution in India as a single, female member of the Dalit caste. A panel of the Immigration and Refugee Board found Ms. Shinmar not to be a Convention refugee or a person in need of protection pursuant to ss 96 and 97 of the Immigration and Refugee Protec- tion Act, SC 2001, c 27, [IRPA] (see Annex for statutory references). Ms. Shinmar argues that the Board made improper negative credibility findings against her and also failed to conduct a proper analysis of s 97. In my view, the Board’s credibility findings were based on the evidence, or the lack of evidence. Therefore, they were reasonable. However, the Board failed to analyze Ms. Shinmar’s s 97 claim; therefore, I must allow this application for judicial review in part. 2 There are two issues: 1. Were the Board’s findings on credibility unreasonable? 2. Did the Board err by failing to conduct a separate analysis under s 97 of IRPA?

II. Factual Background 3 Ms. Shinmar is a citizen of India. She was born and lived in the village of Barsal until she came to Canada in 2009. Shinmar v. Canada (MCI) James W. O’Reilly J. 39

4 Ms. Shinmar’s family belongs to a lower caste called the Dalits. She and her family were discriminated against by members of higher castes. However, with the help of a sister living in Canada, they were able to buy some land and become financially secure. 5 When her parents immigrated to Canada in 2006, they left Ms. Shinmar to care for the family’s home and land. When neighbours realized Ms. Shinmar was living alone, they encroached on her land and, when she objected, they verbally abused and threatened her. Ms. Shinmar sought help from the police but, when they found out she was Dalit, they demeaned her and demanded money. 6 Eventually, Ms. Shinmar went into hiding. Her parents encouraged her to leave and she contacted an agent to arrange her travel to Canada.

III. The Board’s Decision 7 The Board refused Ms. Shinmar’s refugee claim based on her lack of credibility. It found a number of “serious discrepancies” and omissions in Ms. Shinmar’s evidence. 8 Ms. Shinmar stated in her written narrative that her problems with neighbours began when they learned that her parents had left India. How- ever, before the Board, she said that her father had faced similar problems. Ms. Shinmar submitted letters from her father, the village Sarpanch (leader) and a local police officer to corroborate her narrative, but none referred to any persecution based on land ownership. The Board concluded that Ms. Shinmar’s testimony was an embellishment of her claim. 9 In her narrative, Ms. Shinmar identified two separate occasions when she was confronted by her neighbours. The first occurred after she complained to her neighbours about their encroachment on her land. The neighbours fired guns into the air to scare her. The second occurred after she complained to the police. The neighbours gathered in front of her house and fired guns. The Board found that Ms. Shinmar’s oral testimony contradicted her written narrative in two ways: (1) she said the neighbours came every day to her house and (2) she stated that guns were fired at her only once, but then changed her answer to “twice”. 10 Ms. Shinmar also testified that she was stopped from cultivating her fields by local boys. When the Board asked why this incident was not included in her PIF narrative, she gave no answer and began to weep. The Board said that this was not a case of “domestic or sexual abuse” that would make it difficult for Ms. Shinmar to testify. The Board concluded that the incident did not happen. 40 IMMIGRATION LAW REPORTER 7 Imm. L.R. (4th)

11 Ms. Shinmar wrote in her narrative that she went to the police after gunshots were fired at her house, but the police never investigated the incident. However, at the hearing, she testified that she believed the police had arrested the attackers but released them after receiving a bribe. She also stated that she went to the police station with a neighbour but they were dismissed because of their caste. The police also demanded money. When asked why these details were not mentioned in her narrative, Ms. Shinmar first said that police behaviour of this kind was common knowledge in India and then replied that she felt ashamed to tell her father. Finally, Ms. Shinmar said that she did not realize she had to explain everything. The Board concluded that Ms. Shinmar was manufac- turing answers to explain her omissions. 12 The Board found that Ms. Shinmar’s failure to provide any documents concerning ownership of her family’s land in India weighed against her credibility. When asked if she had attempted to acquire documents, Ms. Shinmar replied that she did not know she would need them. The Board found this answer unreasonable because her claim was based on acquisition of the land, and she had ample opportunity to obtain the documents. In fact, her father’s affidavit stated that he had recently travelled to India to “retrieve my daughter’s documents for her refugee hearing”. 13 The Board also questioned why Ms. Shinmar’s father was late sub- mitting his affidavit to support Ms. Shinmar’s claim and noted that it was not from a disinterested party. It gave the affidavit little weight. 14 Overall, the Board found Ms. Shinmar to be a “difficult witness” because she tended to wander off on tangents, offered vague answers, had difficulty recalling specific details, and at times became very animated and began to cry. Given that she had not submitted a medical or psychological report, the Board found her emotional state weighed negatively on her credibility. 15 The Board concluded, “I simply do not believe that...any of the significant events that the claimant alleged happened to her, actually happened and as a result, the claim pursuant to section 96 of the IRPA fails”. The Board also found that Ms. Shinmar’s claim under s 97 failed because there was no other evidence to indicate she would be at risk.

IV. Issue One - Were the Board’s findings on credibility unreasonable? 16 Ms. Shinmar maintains that the Board’s findings were unreasonable. She submits that the Board gave undue attention to minor omissions and Shinmar v. Canada (MCI) James W. O’Reilly J. 41

inconsistencies, unfairly discounted her oral testimony without considering the Chairperson’s Gender Guidelines, and wrongly relied on an absence of documentary evidence to make adverse credibility findings. 17 In particular, she points out that her knowledge of her father’s problems was scant because men rarely shared information with women. In other areas, her oral evidence was simply more detailed than her written narrative, as one would naturally expect to be the case. Some details were omitted out of embarrassment, which also explained her emotional state at the hearing. Some of the threats and abuse she received were of a sexual nature, which was obviously upsetting and difficult to recount. This is why the Board should have considered the Gender Guidelines. 18 Having reviewed the record, I am satisfied that many of the Board’s findings were clearly merited — it was entitled to conclude that the father’s affidavit should be given little weight, that the absence of cor- roborating documentary evidence was not well-explained, that there were discrepancies and inconsistencies in Ms. Shinmar’s evidence, and that her answers to many questions were vague and unresponsive. The remaining question is whether the Board’s findings were faulty for a lack of consideration of the Chairperson’s Gender Guidelines. The Guidelines remind Board members that women sometimes have difficulty testifying about matters relating to sexual violence, and may have little knowledge of matters dealt with mainly by men because men may decide not to share information with women in their families. 19 These considerations certainly applied in Ms. Shinmar’s case. She had difficulty discussing the “dirty language” that was used by her neighbours. She also knew little about the problems her father had before leaving India. However, these areas of testimony did not figure largely in the Board’s credibility findings. It commented adversely on her emotional state, but most of its findings were based on the other evidence before it, or the absence of evidence. In addition, while the Board did not cite the Guidelines expressly, it did treat Ms. Shinmar sensitively at the hearing, allowing her occasional breaks to compose herself, expressing concern about her well-being, and permitting her counsel to pose questions instead of the Board member himself. In the circumstances, I find the Board generally respected the spirit of the Guidelines and would not fault its analysis based simply on a failure to refer to them explicitly. 42 IMMIGRATION LAW REPORTER 7 Imm. L.R. (4th)

V. Issue Two - Did the Board err by failing to conduct a separate analysis under s 97? 20 Ms. Shinmar asserts that her return to India would risk her life or expose her to cruel and unusual treatment or punishment based on her membership in a particular social group. 21 While the protections offered under ss 96 and 97 are separate and distinct, there are some situations where the Board’s conclusions on s 96 will be determinative of the 97 claim. Where, for example, the Board finds there is no evidence supporting the s 96 claim, there would be no need to determine separately whether the s 97 claim has been made out. 22 Here, however, even though the Board found Ms. Shinmar not to be credible and that the events she described did not occur, there remained the question of whether the objective, documentary evidence could support a claim under s 97. There is nothing in the Board’s reasons to suggest that it turned its mind to that evidence. Therefore, in my view, the Board erred in not conducting a specific s 97 analysis.

VI. Conclusion and Disposition 23 I cannot conclude that the Board’s finding that Ms. Shinmar’s claim under s 96 was unsupported by credible evidence was unreasonable. While the Board did not cite the Gender Guidelines specifically, it respected the spirit of the guidelines during the hearing. However, in my view, the Board erred in not considering whether Ms. Shinmar’s claim under s 97 was supported by the documentary evidence. Therefore, I must allow this application in part and order a different panel of the Board to reconsider the s 97 claim. Neither party proposed a question of general importance for me to certify, and none is stated.

Judgment THIS COURT’S JUDGMENT is that: 1. The application for judicial review is allowed in part; 2. A different panel of the Board must reconsider Ms. Shinmar’s claim under s 97 of Immigration and Refugee Protection Act; SC 2001, c 27, and 3. No question of general importance is stated. Application granted. Shinmar v. Canada (MCI) James W. O’Reilly J. 43

Annex

Immigration and Refugee Protection Act, SC 2001, c 27 Convention refugee 96. A Convention refugee is a person who, by reason of a well- founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion, (a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or (b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country. Person in need of protection 97. (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally (a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or (b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if (i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country, (ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country, (iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and (iv) the risk is not caused by the inability of that country to provide adequate health or medical care. (2) A person in Canada who is a member of a class of persons prescribed by the regulations as being in need of protection is also a person in need of protection. 44 IMMIGRATION LAW REPORTER 7 Imm. L.R. (4th)

[Indexed as: Adolfo Rodriguez c. Canada (Ministre de la Citoyenneté & de l’Immigration)] Gustavo Adolfo Rodriguez, Demandeur et le Ministre de la Citoyenneté et de l’Immigration, Défendeur Cour fédérale Docket: IMM-2214-11 2012 CF 4 Yvon Pinard J. Heard: 6 décembre 2011 Judgment: 6 janvier 2012 Immigration and citizenship –––– Refugee protection — Credibility — Basis of negative credibility finding — Inconsistencies, contradictions, or omissions –––– Applicant was citizen of Colombia. — In February 2008, applicant allegedly actively participated in protest against violence by Revolutionary Armed Forces of Colombia (FARC) — Day after protest, vehicle in which applicant was travelling was intercepted by FARC, who then arrested and detained him — Applicant claimed to have escaped; however, he did not file complaint — Following his arrest applicant left Colombia for United States, where he stayed until September 2008, when he came to Canada and filed refugee claim — Refugee Protection Division (RPD) dismissed applicant’s claim — Ap- plicant brought application for judicial review of decision of RPD — Applica- tion granted — Inconsistencies and contradictions briefly noted by RPD were not actually so and inferences drawn by RPD were not reasonable — RPD was wrong to dismiss copy of complaint filed by applicant’s father with police in Colombia — RPD erred in drawing negative finding based on applicant’s delay in completing his refugee claim — RPD erred by remaining silent on much relevant evidence provided by applicant in support of his refugee claim, specifically his student card, explanations offered, and documents demonstrating presence of FARC in universities. Immigration and citizenship –––– Refugee protection — Credibility — Basis of negative credibility finding — Delay in pursuing claim –––– Applicant was citizen of Colombia. — In February 2008, applicant allegedly actively participated in protest against violence by Revolutionary Armed Forces of Colombia (FARC) — Day after protest, vehicle in which applicant was travelling was intercepted by FARC, who then arrested and detained him — Applicant claimed to have escaped; however, he did not file complaint — Following his arrest applicant left Colombia for United States, where he stayed until September 2008, when he came to Canada and filed refugee claim — Refugee Protection Division (RPD) dismissed applicant’s claim — Applicant brought application for judicial Adolfo Rodriguez c. Canada (MCI) Yvon Pinard J. 45

review of decision of RPD — Application granted — RPD erred in imposing on applicant duty of seeking refugee status at first available opportunity in third country and ignoring his explanations for not doing so. Cases considered by Yvon Pinard J.: Gavryushenko v. Canada (Minister of Citizenship & Immigration) (2000), (sub nom. Gavryushenko v. Canada (Ministre de la Citoyennet´e & de l’Immigration)) 194 F.T.R. 161, 2000 CarswellNat 3531, [2000] F.C.J. No. 1209 (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 Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 72(1) — pursuant to

APPLICATION for judicial review of decision of Refugee Protection Division dismissing applicant’s claim.

Me Michel Le Brun, pour le demandeur Me Margarita Tzavelakos, pour le d´efendeur

Yvon Pinard J.:

1 Il s’agit ici d’une demande de contrôle judiciaire d’une décision de M. Carlos Martinez de la Section de la protection des réfugiés de la Commission de l’immigration et du statut de réfugié (le tribunal), présen- tée en vertu du paragraphe 72(1) de la Loi sur l’immigration et la protection des réfugiés, L.C. (2001), ch. 27, par Gustavo Adolfo Rodriguez (le demandeur). Le tribunal a conclu que le demandeur n’avait pas la qualité de réfugié ni celle de personne a` protéger et a donc rejeté sa demande d’asile. 2 Le demandeur est un citoyen de la Colombie. Le 4 février 2008, avec des etudiants´ universitaires, il aurait participé activement a` une manifestation de 2 a` 3 millions de personnes contre la violence a` laquelle les Forces armées révolutionnaires de Colombie (« FARC », « Fuerzas Ar- madas Revolucionarias de Colombia ») soumettent la population. Le de- 46 IMMIGRATION LAW REPORTER 7 Imm. L.R. (4th)

mandeur allègue qu’au lendemain de la manifestation, le véhicule dans lequel il voyageait a et´´ e intercepté par les FARC, qui l’auraient par la suite arrêté et détenu. Le demandeur prétend avoir réussi a` s’évader. Toutefois, il n’a pas porté plainte. 3 Suite a` cet incident, le 24 mai 2008, il quitte la Colombie pour aller aux Etats-Unis,´ ayant réussi a` obtenir un visa expirant en août 2008. Le demandeur serait demeuré aux Etats-Unis´ jusqu’au 8 septembre 2008, alors qu’il aurait quitté pour le Canada où il formule sa demande d’asile dès son arrivée. Le demandeur prétend craindre pour sa vie, disant que les FARC seraient toujours a` sa recherche. 4 Dans sa décision datée du 7 mars 2011, le tribunal a rejeté la demande d’asile du demandeur, concluant que ce dernier n’était pas crédible. 5 Après audition des procureurs des parties et révision de la preuve per- tinente, je suis d’avis que les incohérences et contradictions brièvement notées par le tribunal n’en sont pas véritablement, et que les inférences tirées par ce dernier ne sont pas raisonnables (voir New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190 (S.C.C.)). 6 D’abord, le tribunal a eu tort d’écarter la copie de la plainte déposée par le père du demandeur a` la police de la Colombie. Non seulement le tribunal se trompe-t-il en disant que ce document date de 2010, alors qu’il date de 2011, mais il aurait dû considérer que cette plainte avait pour but d’établir que les FARC etaient´ toujours a` la recherche du demandeur. 7 De plus, le tribunal a erré en tirant une conclusion négative en raison de l’attente du demandeur a` formuler sa demande d’asile. Le tribunal a ignoré les explications du demandeur a` cet egard,´ a` savoir que la demande d’asile de son oncle avait et´´ e acceptée au Canada et qu’il ne vou- lait pas mettre en cause les agents de voyage et la compagnie qui l’ont aidé a` quitter la Colombie. Non seulement le tribunal a erré en ignorant ces explications pourtant raisonnables, mais il a eu tort d’imposer au demandeur une obligation de demander le statut de réfugié a` la première occasion, dans un pays tiers (voir Gavryushenko v. Canada (Minister of Citizenship & Immigration), [2000] F.C.J. No. 1209 (Fed. T.D.)). 8 Enfin, le tribunal a erré en demeurant silencieux sur plusieurs el´´ e- ments de preuve pertinents fournis par le demandeur au soutien de sa demande d’asile, notamment sa carte d’étudiant, les explications offertes lors de son témoignage et les documents démontrant la présence des FARC dans les universités. Adolfo Rodriguez c. Canada (MCI) Yvon Pinard J. 47

9 Pour toutes ces raisons, la décision du tribunal ne m’apparaissant pas justifiée et transparente, elle ne satisfait pas a` la norme de la décision raisonnable telle que définie dans Dunsmuir, ci-dessus. 10 En conséquence, la demande de contrôle judiciaire est accordée. L’affaire est renvoyée a` la Section de la protection des réfugiés de la Commission de l’immigration et du statut de réfugié différemment con- stituée, pour nouvelle considération et détermination. 11 Je suis d’accord avec les procureurs des parties qu’il n’y a pas ici matière a` certification.

Jugement La demande de contrôle judiciaire est accordée et l’affaire est renvoyée a` la Section de la protection des réfugiés de la Commission de l’immigration et du statut de réfugié différemment constituée, pour nouvelle considération et détermination. Application granted. 48 IMMIGRATION LAW REPORTER 7 Imm. L.R. (4th)

[Indexed as: Canada (Minister of Citizenship & Immigration) v. Abboud] The Minister of Citizenship and Immigration, Applicant and Omaima Makdesi Abboud, Mario Abboud, Maya Abboud, Marina Abboud, Respondents Federal Court Docket: IMM-3218-11 2012 FC 72 Richard Boivin J. Heard: December 20, 2011 Judgment: January 19, 2012 Immigration and citizenship –––– Refugee protection — Elements of protected refugee status — Protection of country of nationality — Internal flight alternative –––– Respondent mother and respondent children were citizens of France and Syria — Mother claimed that she and children were abused by her husband shortly after their marriage began in 1991 — In 2001, respondents moved from Syria to Martinique upon husband’s insistence — In 2004, mother was victim of episode of severe abuse, after which she left home and reported incident to police — In 2008, respondents fled to Canada and claimed refugee protection — Board found that it was not obvious that internal flight alternative (IFA) existed and that respondents could not obtain protection from French state and held that respondents were entitled to refugee protection — Minister of Citizenship and Immigration brought application for judicial review — Application granted — Board failed to apply correct legal test as to existence of IFA — Board did not attempt to determine whether IFA existed in Martinique or in Syria — Although board concluded that it would have been difficult for respondents to travel to France, it ignored fact that they travelled to Canada. Immigration and citizenship –––– Refugee protection — Elements of protected refugee status — Protection of country of nationality — Sufficiency of state protection — Miscellaneous –––– Respondent mother and respondent children were citizens of France and Syria — Mother claimed that she and children were abused by her husband shortly after their marriage began in 1991 — In 2001, respondents moved from Syria to Martinique upon husband’s insistence — In 2004, mother was victim of episode of severe abuse, after which she left home and reported incident to police — In 2008, respondents fled to Canada and claimed refugee protection — Board found that it was not obvious that internal flight alternative existed and that respondents could not obtain protection from French state and held that respondents were entitled to refugee protec- Canada (Minister of Citizenship & Immigration) v. Abboud 49

tion — Minister of Citizenship and Immigration brought application for judicial review — Application granted — Board failed to apply appropriate test for state protection — Board only examined attempt of respondents to seek assistance from state authorities in 2004 and failed to include this attempt in broader context of analysis of state protection — Board did not question whether respondents made any “reasonable efforts” at seeking out state protection — Evidence demonstrated that France took domestic violence seriously, that violence against women was illegal, and that French government generally enforced law — Inci- dent in 2004 was not sufficient to rebut general presumption of state protection. Cases considered by Richard Boivin J.: Baku v. Canada (Minister of Citizenship & Immigration) (2010), 2010 Car- swellNat 5100, 2010 CF 1163, 2010 FC 1163, 2010 CarswellNat 4461, [2010] F.C.J. No. 1507, [2010] A.C.F. No. 1507 (F.C.) — referred to Canada (Minister of Employment & Immigration) v. Villafranca (1992), 18 Imm. L.R. (2d) 130, 150 N.R. 232, 99 D.L.R. (4th) 334, 1992 CarswellNat 78, [1992] F.C.J. No. 1189 (Fed. C.A.) — referred to Canada (Ministre de la Citoyenneté & de l’Immigration) c. Kaaib (2006), 2006 CF 870, 2006 CarswellNat 1995, 2006 FC 870, 2006 CarswellNat 5315, (sub nom. Canada (Minister of Citizenship and Immigration) v. Kaaib) 297 F.T.R. 69 (Eng.), [2006] F.C.J. No. 1106 (F.C.) — referred to Cosgun v. Canada (Minister of Citizenship & Immigration) (2010), 2010 FC 400, 2010 CarswellNat 871, 2010 CF 400, 2010 CarswellNat 2630, [2010] F.C.J. No. 458, [2010] A.C.F. No. 458 (F.C.) — referred to Emile v. Canada (Minister of Citizenship & Immigration) (2011), 2011 FC 1321, 2011 CarswellNat 4771, 2011 CF 1321, 2011 CarswellNat 5380, [2011] F.C.J. No. 1614, [2011] A.C.F. No. 1614 (F.C.) — referred to Farias v. Canada (Minister of Citizenship & Immigration) (2008), 2008 FC 1035, 2008 CarswellNat 3385, 75 Imm. L.R. (3d) 31, [2008] F.C.J. No. 1292 (F.C.) — referred to Hinzman, Re (2007), 2007 CarswellNat 950, 2007 FCA 171, (sub nom. Hinzman v. Canada (Minister of Citizenship & Immigration)) 282 D.L.R. (4th) 413, 2007 CarswellNat 3596, 63 Imm. L.R. (3d) 13, 2007 CAF 171, (sub nom. Hinzman v. Canada (Minister of Citizenship & Immigration)) 362 N.R. 1, 61 Admin. L.R. (4th) 313, [2007] F.C.J. No. 584 (F.C.A.) — followed Kadenko v. Canada (Solicitor General) (1996), 1996 CarswellNat 2216, (sub nom. Kadenko v. Canada (Solliciteur général)) 206 N.R. 272, (sub nom. Kadenko v. Canada (Solliciteur général)) 124 F.T.R. 160 (note), 143 D.L.R. (4th) 532, [1996] F.C.J. No. 1376, [1996] A.C.F. No. 1376 (Fed. C.A.) — considered 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 50 IMMIGRATION LAW REPORTER 7 Imm. L.R. (4th)

Navarro c. Canada (Ministre de la Citoyenneté & de l’Immigration) (2008), 2008 CarswellNat 691, 2008 CF 358, 2008 CarswellNat 3136, 2008 FC 358, [2008] F.C.J. No. 463 (F.C.) — followed New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1, 69 Admin. L.R. (4th) 1, 69 Imm. L.R. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) [2008] 1 S.C.R. 190, 844 A.P.R. 1, (sub nom. Dunsmuir v. New Brunswick) 2008 C.L.L.C. 220-020, D.T.E. 2008T-223, 329 N.B.R. (2d) 1, (sub nom. Dunsmuir v. New 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 Ranganathan v. Canada (Minister of Citizenship & Immigration) (2000), 11 Imm. L.R. (3d) 142, 193 F.T.R. 320 (note), 2000 CarswellNat 3134, [2001] 2 F.C. 164, 266 N.R. 380, 2000 CarswellNat 3459, [2000] F.C.J. No. 2118 (Fed. C.A.) — referred to Rasaratnam v. Canada (Minister of Employment & Immigration) (1991), [1992] 1 F.C. 706, 140 N.R. 138, 1991 CarswellNat 162, 1991 CarswellNat 162F, [1991] F.C.J. No. 1256 (Fed. C.A.) — followed Thirunavukkarasu v. Canada (Minister of Employment & Immigration) (1993), 1993 CarswellNat 160, 1993 CarswellNat 1351, 22 Imm. L.R. (2d) 241, 109 D.L.R. (4th) 682, [1994] 1 F.C. 589, 163 N.R. 232, [1993] F.C.J. No. 1172 (Fed. C.A.) — followed 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 Generally — referred to s. 72(1) — pursuant to s. 95 — considered s. 96 — considered s. 96 “réfugié” — considered s. 97 — considered

APPLICATION by Minister of Citizenship and Immigration for judicial review of board’s decision granting respondents refugee protection.

Jessica DiZazzo, for Applicant Rezaur Rahman, for Respondents Canada (Minister of Citizenship & Immigration) v. Abboud Richard Boivin J. 51

Richard Boivin J.:

1 This is an application put forward by the Minister of Citizenship and Immigration pursuant to subsection 72(1) of the Immigration and Refu- gee Protection Act, SC 2001, c 27 (the Act) for judicial review of the decision of the Refugee Protection Division of the Immigration and Ref- ugee Board (the Board) rendered on April 19, 2011, wherein the Board held that the respondents were entitled to refugee protection in Canada. 2 The applicant seeks an order setting aside the decision and remitting the matter for redetermination by a differently constituted panel of the Board.

Factual Background 3 Ms. Omaima Makdesi Abboud (the principal respondent) and her three children, Mario Abboud, Maya Abboud and Marina Abboud, are citizens of France and Syria. 4 The principal respondent, a civil engineer in Syria, married her husband in Syria in 1991. Together they had three children. 5 The principal respondent claims that she was physically, psychologi- cally and verbally abused by her husband shortly after their marriage began. As well, the principal respondent alleges that her husband was also abusive to their children. 6 In 2001, upon her husband’s insistence, the principal respondent and her three children moved from Syria to the French overseas territory of Martinique where her husband had been living since 1997. She maintains that her husband’s abusive behaviour continued after they relocated to Martinique. 7 In 2004, the principal respondent alleges that she was the victim of an episode of severe abuse, after which she decided to leave home and report the incident to the local police. She explains that the police arranged for a mediation session between herself and her husband. She also advances that due to her limited abilities in the French language, her husband acted as interpreter during the mediation session. 8 The principal respondent claims that her husband continued to abuse her and her children between 2004 and 2008. 9 As her husband’s behaviour continued to worsen, the principal respondent made arrangements to fly to Canada with her children on De- cember 27, 2008. The family claimed refugee protection upon their arrival in Montreal. 52 IMMIGRATION LAW REPORTER 7 Imm. L.R. (4th)

10 The applicant’s claim was heard by the Refugee Protection Division of the Immigration and Refugee Board on April 19, 2011 and its decision and oral reasons were issued the same day.

Decision under Review 11 In a brief decision, the Board determined that the central issues of the claim were the respondents’ identity, their credibility, the existence of an internal flight alternative (IFA) and the availability of state protection. On the issues of identity and credibility, the Board determined that these two elements had been satisfactorily established. 12 On the issue of an IFA, the Board concluded that it was “not obvious” that an IFA existed. The Board made the following comments on this issue in paragraph 6 of its decision: ... the claimant, as I understood the testimony, is not a rich person, her parents are not rich. If they were to deploy funds to hop around the world in Tahiti, in France and in the Caribbean using an insur- mountable fund of money, of course they could keep ahead of their fractious husband and father, but that is not the situation. I don’t believe that there is a practical IFA available in part for the same reason that there many not be State protection. 13 Moreover, while the Board acknowledged the fact that France was a democratically developed country, the Board found that the principal respondent and her children could not obtain protection from the French State. Essentially, the Board stated the following in paragraph 7 of the decision: What I do find, in this case, is that in practice for this principal claimant, for this woman, the normal State protection that a French woman could obtain in France disappeared, was simply not there. That is a function of two things that came out during the examination of the Tribunal Officer. There was the fact that, at the first mediation, there was no independent interpreter for the claimant. The other participant, her husband, a very cunning individual it seems to me, acted as the interpreter and the claimant was unable to say what the mediator said to him or, vice-versa, what he said to the mediator. The only thing that she understood was the words spoken to her in Arabic by her husband. 14 Furthermore, aside from the unfair mediation due to the lack of an independent interpreter, the Board also noted that the principal respondent was free to pursue other recourses against her husband but she was unaware of them, or did not understand them based on her lack of understanding of the French language (in paragraph 8 of the decision). Conse- Canada (Minister of Citizenship & Immigration) v. Abboud Richard Boivin J. 53

quently, the Board found that the principal respondent could not benefit from state protection in France: Normally, the availability of State protection, which is presumed, would prevent that recourse. Here I find that there is no prevention to that recourse for the reasons that I have expressed, which I repeat, which is that although this country is a country from which normally we would expect the offering of State protection to its citizens, in this particular case, in view of how the participants were linguistically capable [...] produced a situation where there was no State protection with respect to France, available at that particular moment (paragraph 9 of the decision). 15 Finally, the Board treated the possibility of state protection in Syria in the following manner in paragraph 10 of the decision: With respect to Syria, I have already indicated that this being an Arabic-dominated society, there is little room for women to express themselves and to claim their rights, and the police, as can be found in the articles that are indexed under the Index for the National Docu- mentation Package, it can be seen that notwithstanding recent legisla- tive changes in most of those countries, the police continues to believe that domestic problems are to be settled within the home by the normal standards, and that means that in the end, the husband is going to decide. 16 Thus, the Board ultimately concluded that the respondents were indeed members of a particular social group — that of the abused spouse — under section 96 of the Act and granted them refugee protection in Canada.

Issues 17 The issues put forward by the applicant can be synthesized as to whether the Board failed to apply the appropriate legal test for state protection and an internal flight alternative (IFA).

Statutory Provisions 18 The following provisions of the Immigration and Refugee Protection Act are applicable in these proceedings: REFUGEE PROTECTION, CONVENTION REFUGEES AND PERSONS IN NEED OF PROTECTION Conferral of refugee protection 95. (1) Refugee protection is conferred on a person when (a) the person has been determined to be a Convention refugee or a person in similar circumstances under a visa application and 54 IMMIGRATION LAW REPORTER 7 Imm. L.R. (4th)

becomes a permanent resident under the visa or a temporary resident under a temporary resident permit for protection reasons; (b) the Board determines the person to be a Convention refugee or a person in need of protection; or (c) except in the case of a person described in subsection 112(3), the Minister allows an application for protection. Protected person (2) A protected person is a person on whom refugee protection is conferred under subsection (1), and whose claim or application has not subsequently been deemed to be rejected under subsection 108(3), 109(3) or 114(4). Convention refugee 96. A Convention refugee is a person who, by reason of a well- founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion, (a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or (b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country. Person in need of protection 97. (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally (a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or (b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if (i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country, (ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country, (iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and Canada (Minister of Citizenship & Immigration) v. Abboud Richard Boivin J. 55

(iv) the risk is not caused by the inability of that country to provide adequate health or medical care. Person in need of protection (2) A person in Canada who is a member of a class of persons prescribed by the regulations as being in need of protection is also a person in need of protection. NOTIONS D’ASILE, DE REFUGIE ET DE PERSONNE A PROTEGER Asile 95. (1) L’asile est la protection conférée a` toute personne dès lors que, selon le cas: a) sur constat qu’elle est, a` la suite d’une demande de visa, un réfugié ou une personne en situation semblable, elle devient soit un résident permanent au titre du visa, soit un résident temporaire au titre d’un permis de séjour délivré en vue de sa protection; b) la Commission lui reconnaˆıt la qualité de réfugié ou celle de personne a` protéger; c) le ministre accorde la demande de protection, sauf si la personne est visée au paragraphe 112(3). Personne protégée (2) Est appelée personne protégée la personne a` qui l’asile est con- féré et dont la demande n’est pas ensuite réputée rejetée au titre des paragraphes 108(3), 109(3) ou 114(4). Définition de « réfugié » 96. A qualité de réfugié au sens de la Convention — le réfugié—la personne qui, craignant avec raison d’être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance a` un groupe social ou de ses opinions politiques: a) soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de chacun de ces pays; b) soit, si elle n’a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner. Personne a` protéger 97. (1) A qualité de personne a` protéger la personne qui se trouve au Canada et serait personnellement, par son renvoi vers tout pays dont 56 IMMIGRATION LAW REPORTER 7 Imm. L.R. (4th)

elle a la nationalité ou, si elle n’a pas de nationalité, dans lequel elle avait sa résidence habituelle, exposée: a) soit au risque, s’il y a des motifs sérieux de le croire, d’être soumise a` la torture au sens de l’article premier de la Conven- tion contre la torture; b) soit a` une menace a` sa vie ou au risque de traitements ou peines cruels et inusités dans le cas suivant: (i) elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays, (ii) elle y est exposée en tout lieu de ce pays alors que d’autres personnes originaires de ce pays ou qui s’y trouvent ne le sont généralement pas, (iii) la menace ou le risque ne résulte pas de sanctions légi- times — sauf celles infligées au mépris des normes in- ternationales — et inhérents a` celles-ci ou occasionnés par elles, (iv) la menace ou le risque ne résulte pas de l’incapacité du pays de fournir des soins médicaux ou de santé adéquats. Personne a` protéger (2) A egalement´ qualité de personne a` protéger la personne qui se trouve au Canada et fait partie d’une catégorie de personnes auxquel- les est reconnu par règlement le besoin de protection.

Standard of Review 19 The applicant submits that the issues it has raised concerning the correct legal test to be applied in the determination of the existence of an IFA and the appropriate test for state protection are both questions of law which are reviewable according to the standard of correctness as per the established case law (Farias v. Canada (Minister of Citizenship & Immi- gration), 2008 FC 1035, [2008] F.C.J. No. 1292 (F.C.) at paras 30-31 [Farias]; Cosgun v. Canada (Minister of Citizenship & Immigration), 2010 FC 400, [2010] F.C.J. No. 458 (F.C.) at para 30; Khosa v. Canada (Minister of Citizenship & Immigration), 2009 SCC 12, [2009] 1 S.C.R. 339 (S.C.C.)). The Court agrees. 20 As well, the Board’s application of the legal tests mentioned above to the facts at hand involves determinations of fact or mixed fact and law. Thus, in accordance with New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9, 372 N.R. 1 (S.C.C.), Hinzman, Re, 2007 FCA 171, 362 N.R. 1 (F.C.A.) [Hinzman]; and Navarro c. Canada (Ministre Canada (Minister of Citizenship & Immigration) v. Abboud Richard Boivin J. 57

de la Citoyennet´e & de l’Immigration), 2008 FC 358, 169 A.C.W.S. (3d) 626 (F.C.), these questions must be reviewed according to the reasonableness standard.

Arguments Position of the Applicant 21 The applicant maintains that the Board erred in fact and law by determining that the respondents did not have access to state protection or an internal flight alternative in either of their countries of citizenship.

Position of the Respondents 22 For their part, the respondents contend that the Board’s findings were entirely reasonable in the case at hand. The respondents are of the view that the applicant has only submitted a selective and minute portion of the total evidence that was before the Board in their application. The respondents further argue that the documentary evidence before the Board indicated (i) that women in France are abused, (ii) how the principal respondent and her children were treated and, (iii) that the police in Marti- nique did not charge the principal respondent’s husband after he severely abused her. Rather, the respondents note that the police organized a mediation session between the principal respondent and her husband. 23 The respondents also maintain that the Board correctly applied the IFA legal test and the correct legal test for state protection. 24 The respondents allege that the Board based its findings on the respondents’ testimony and the evidentiary record and avoided technicali- ties and academic discussions. The respondents submit that the applicant is asking the Court to reweigh the evidence in order to arrive at another conclusion and that the Court must show deference to the Board’s findings.

Analysis 25 At the outset, the Court recalls that refugee protection is a form of “surrogate protection” which is intended only in situations where protections from the home state are unavailable (Ward v. Canada (Minister of Employment & Immigration), [1993] 2 S.C.R. 689, 153 N.R. 321 (S.C.C.) and Farias, above, at para 15). Moreover, this Court constantly has held that a general presumption of state protection exists except in situations where it is clear that a complete breakdown of the state appara- tus has occurred. 58 IMMIGRATION LAW REPORTER 7 Imm. L.R. (4th)

26 In the present case, the Court finds that the Board committed reviewable errors for the reasons that follow. 27 Firstly, the Board failed to apply the correct legal test as to the existence of an IFA. The Court cannot agree with the respondents that the failure to correctly address the IFA test is a mere technicality. As argued by the applicant, the law on internal flight alternatives outlines that an individual cannot be granted the status of a Convention refugee if an IFA exists. It is trite law that refugee claimants must first seek safety in another part of their country (or countries) of citizenship before claiming refugee protection in Canada. If they fail to do so, the refugee claimants have the heavy burden of establishing that there is no IFA available and that seeking safety in another part of their country would be objectively unreasonable in the circumstances at hand (see Thirunavukkarasu v. Canada (Minister of Employment & Immigration) (1993), [1994] 1 F.C. 589, [1993] F.C.J. No. 1172 (Fed. C.A.) [Thirunavukkarasu]; Ranganathan v. Canada (Minister of Citizenship & Immigration) (2000), [2001] 2 F.C. 164, [2000] F.C.J. No. 2118 (Fed. C.A.) [Ranganathan]; Canada (Ministre de la Citoyennet´e & de l’Immigration) c. Kaaib, 2006 FC 870, [2006] F.C.J. No. 1106 (F.C.)). 28 More particularly, the Board failed to address either of the two prongs of the legal test as outlined in Thirunavukkarasu, above, and Rasaratnam v. Canada (Minister of Employment & Immigration) (1991), [1992] 1 F.C. 706, [1991] F.C.J. No. 1256 (Fed. C.A.) [Rasaratnam]. The legal test provides that the Board must be satisfied on a balance of probabilities that: i) there was no serious possibility of the refugee claimant being persecuted or subjected to a danger of torture or to a risk to life or of cruel and unusual treatment or punishment in the proposed IFA area; and ii) that the refugee claimant cannot reasonably, without undue hardship, seek refuge in the proposed IFA area. 29 In its decision, the Board did not attempt to determine whether an IFA existed in Martinique, in continental France or in Syria. Rather, the Board solely based its IFA analysis on financial considerations. It found that the existence of an IFA was “not obvious” because the respondents did not have unlimited resources “to hop around the world in Tahiti and in France and in the Caribbean”. Although the Board concludes that it would be difficult for the respondents to travel to France, it ignores the fact that they travelled to Canada. Further, given France’s large territory, its strong democratic and legal systems and its diverse population, the Board’s factual findings were insufficient. Canada (Minister of Citizenship & Immigration) v. Abboud Richard Boivin J. 59

30 Secondly, the Court notes that the Board failed to apply the appropriate test for state protection in the present case. It is also trite law that a general presumption of state protection exists; this presumption can only be rebutted if the refugee claimant provides “clear and convincing” evidence that their country (or countries) of citizenship are unable to provide protection or that the protection provided is “ineffective” (Ward and Hinzman, Re, above). 31 In the present case, the principal respondent explained that her reason for not seeking help from the police in 2008, after experiencing abuse from her husband, was that she had lost trust and confidence in the police due to her negative experience with them in 2004. The Court agrees with the applicant that the Board incorrectly applied the legal test for state protection as it concluded that, while state protection would normally be available in France, no state protection was “available at that particular moment” — that moment being the episode in 2004 when the principal respondent sought help from the police. The Board only examined the single attempt of the respondents to seek assistance from state authorities and failed to include this attempt in the broader context of the analysis of state protection. 32 Again, there is no indication in the Board’s decision that this test was considered in the Board’s analysis of the existence of state protection. Moreover, the Court notes that the Board did not question whether the respondents made any “reasonable efforts” at seeking out state protection before leaving for Canada. Pursuant to the case of Kadenko v. Canada (Solicitor General), [1996] F.C.J. No. 1376, 206 N.R. 272 (Fed. C.A.), the refugee claimant’s burden increases where the state in question is deemed democratic. The Court has found that “the more democratic the state’s institutions, the more the claimant must have done to exhaust all the courses of action open to him or her” (Kadenko, above, at para 5). 33 Also, the Board failed to consider the evidence before it. Despite counsel for the respondents’ able arguments, the Court cannot agree, based on the evidence, that state protection was not available in France for the following reasons. The evidence demonstrates that France takes domestic violence seriously, violence against women is illegal and, the French government generally enforces the law (Applicant’s Record, pp 45-47). Further, French citizens located in its overseas territories benefit from the same rights as its citizens located in continental France (Appli- cant’s Record, p 58). 34 The applicant also contends that the Board erred in determining that state protection was unavailable to the respondents as independent inter- 60 IMMIGRATION LAW REPORTER 7 Imm. L.R. (4th)

pretive services were not accessible to them during the mediation session of 2004. The applicant reminds that the respondents’ abilities in the French language and the limited availability of legal aid are both irrelevant considerations to the objective test of the existence of state protection. On this point the Court also agrees with the applicant, and observes that the principal respondent’s PIF was completed in French, it contained no attestation of an interpreter and it included a declaration that the principal respondent understood sufficient French to understand the content of the form. The Board did not consider the principal respondent’s current abilities in French or her ability to access state protection in France. The Board relied solely on the respondents’ disillusionment with the Martinique police department subsequent to the mediation session of 2004 and her linguistic limitations in order to rule out state protection. The Court concludes that the incident of 2004 is not sufficient in and of itself to rebut the general presumption of state protection. The Court also recalls that state protection need not be perfect but adequate (see Canada (Minister of Employment & Immigration) v. Villafranca, [1992] F.C.J. No. 1189, 99 D.L.R. (4th) 334 (Fed. C.A.), at para 7; Baku v. Canada (Minister of Citizenship & Immigration), 2010 FC 1163, [2010] F.C.J. No. 1507 (F.C.), at para 15; Emile v. Canada (Minister of Citizenship & Immigration), 2011 FC 1321, [2011] F.C.J. No. 1614 (F.C.), at para 36.) 35 Hence, the Court is of the opinion that the Board’s factual findings on state protection in France were unreasonable, were based on irrelevant considerations, and, were made without regard to the evidence before it. 36 Finally, the Court agrees with the applicant that the Board also failed to adequately address the dual citizenship of the respondents in the present case. 37 The Court sympathizes with the respondents’ situation. However, in light of the applicable law, the Court must set aside the Board’s decision. As neither party has proposed a question for certification, none will be certified.

Judgment THIS COURT’S JUDGMENT is that 1. The application for judicial review is granted. 2. The matter is referred back for redetermination by a differently constituted panel in accordance with the reasons given in this Judgment. Canada (Minister of Citizenship & Immigration) v. Abboud Richard Boivin J. 61

3. No question of general importance is certified. Application granted. 62 IMMIGRATION LAW REPORTER 7 Imm. L.R. (4th)

[Indexed as: Nagalingam v. Canada (Minister of Citizenship & Immigration)] Panchalingam Nagalingam, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-1711-11 2012 FC 176 James Russell J. Heard: October 25, 2011 Judgment: February 8, 2012 Immigration and citizenship –––– Exclusion and removal — Inadmissible classes — Criminality –––– Applicant was Tamil citizen of Sri Lanka currently living in Canada under house arrest — He was married and had one-year-old daughter with wife — He also had nine-year-old son who lived in Canada with applicant’s former common-law wife — Applicant first entered Canada on Au- gust 31, 1994 — At that time, he claimed refugee status under former Immigra- tion Act — He was recognized as Convention refugee by Convention Refugee Determination Division without hearing on March 2, 1995 — Applicant went on to become permanent resident of Canada on March 13, 1997 — Between 1999 and 2001, applicant accumulated four criminal convictions in Canada — He was convicted of assault, failure to comply with recognizance, and two counts of mischief under $5,000 — Applicant brought application for judicial review of decision of minister’s delegate in which delegate found that applicant had committed acts of substantial gravity within meaning of s. 115(2)(b) of Immigration and Refugee Protection Act — Decision permitted applicant’s refoulement to Sri Lanka notwithstanding status in Canada as Convention refugee — Application granted — No indication from delegate that she even considered whether cross- examination of detective was required to ensure procedural fairness — She certainly provided no reasons on point or explained to applicant why request was not allowed or why procedural fairness in case did not require cross- examination. Immigration and citizenship –––– Exclusion and removal — Removal from Canada — Appeals and judicial review — Judicial review — Powers and duties of court –––– Applicant was Tamil citizen of Sri Lanka currently living in Canada under house arrest — He was married and had one-year-old daughter with wife — He also had nine-year-old son who lived in Canada with applicant’s former common-law wife — Applicant first entered Canada on August 31, 1994 — At that time, he claimed refugee status under former Immigration Act — He was recognized as Convention refugee by Convention Refugee Deter- Nagalingam v. Canada (MCI) 63 mination Division without hearing on March 2, 1995 — Applicant went on to become permanent resident of Canada on March 13, 1997 — Between 1999 and 2001, applicant accumulated four criminal convictions in Canada — He was convicted of assault, failure to comply with recognizance, and two counts of mischief under $5,000 — Applicant brought application for judicial review of decision of minister’s delegate in which delegate found that applicant had committed acts of substantial gravity within meaning of s. 115(2)(b) of Immigration and Refugee Protection Act — Decision permitted applicant’s refoulement to Sri Lanka notwithstanding status in Canada as Convention refugee — Application granted — No indication from delegate that she even considered whether cross- examination of detective was required to ensure procedural fairness — She certainly provided no reasons on point or explained to applicant why request was not allowed or why procedural fairness in case did not require cross- examination. Cases considered by James Russell J.: Allen v. Allen (1894), [1894] P. 248 (Eng. C.A.) — considered Alliance Pipeline Ltd. v. Smith (2011), 328 D.L.R. (4th) 1, 56 C.E.L.R. (3d) 161, 16 Admin. L.R. (5th) 157, [2011] 1 S.C.R. 160, 2011 SCC 7, 2011 Car- swellNat 202, 2011 CarswellNat 203, 102 L.C.R. 1, 412 N.R. 66, [2011] S.C.J. No. 7, [2011] A.C.S. No. 7 (S.C.C.) — referred to Beno v. Canada (Attorney General) (2002), 216 F.T.R. 45, 2002 CarswellNat 3130, 2002 FCT 142, 2002 CarswellNat 308, [2002] 3 F.C. 499 (Fed. T.D.) — referred to Bertold v. Canada (Minister of Citizenship & Immigration) (1999), 1999 Car- swellNat 1980, 2 Imm. L.R. (3d) 46, 175 F.T.R. 195, [1999] F.C.J. No. 1492 (Fed. T.D.) — considered 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 Canada (Minister of Citizenship & Immigration) v. Nagalingam (2004), 2004 CF 1757, 2004 CarswellNat 5954, 2004 FC 1757, 2004 CarswellNat 4717, 41 Imm. L.R. (3d) 230 (F.C.) — considered 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 Gagliano v. Canada (Ex-Commissioner of Inquiry into the Sponsorship Program & Advertising Activities) (2008), 2008 CarswellNat 3077, 2008 CarswellNat 3078, 2008 FC 981, 2008 CF 981, (sub nom. Gagliano v. 64 IMMIGRATION LAW REPORTER 7 Imm. L.R. (4th)

Gomery) 333 F.T.R. 221 (Eng.), 88 Admin. L.R. (4th) 157, [2008] F.C.J. No. 1220 (F.C.) — referred to Innisfil (Township) v. Vespra (Township) (1981), 15 M.P.L.R. 250, 12 O.M.B.R. 129, 123 D.L.R. (3d) 530, (sub nom. Barrie Annexation, Re) 37 N.R. 43, 1981 CarswellOnt 466, 1981 CarswellOnt 615, [1981] 2 S.C.R. 145, [1981] S.C.J. No. 73 (S.C.C.) — considered Khosa v. Canada (Minister of Citizenship & Immigration) (2009), 82 Admin. L.R. (4th) 1, 2009 SCC 12, 2009 CarswellNat 434, 2009 CarswellNat 435, 304 D.L.R. (4th) 1, 77 Imm. L.R. (3d) 1, 385 N.R. 206, (sub nom. Canada (Citizenship & Immigration) v. Khosa) [2009] 1 S.C.R. 339, [2009] S.C.J. No. 12 (S.C.C.) — considered La v. Canada (Minister of Citizenship & Immigration) (2003), 2003 Car- swellNat 1116, 2003 FCT 476, 232 F.T.R. 220, 2003 CFPI 476, 2003 Car- swellNat 2229, 36 Imm. L.R. (3d) 64, [2003] F.C.J. No. 649 (Fed. T.D.) — considered N.L.N.U. v. Newfoundland & Labrador (Treasury Board) (2011), 2011 Car- swellNfld 414, 2011 CarswellNfld 415, 2011 SCC 62, (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 (S.C.C.) — considered Nagalingam v. Canada (Minister of Citizenship & Immigration) (2004), 2004 FC 1397, 2004 CarswellNat 3656, 2004 CF 1397, 2004 CarswellNat 5554 (F.C.) — referred to Nagalingam v. Canada (Minister of Citizenship & Immigration) (2007), [2008] 1 F.C.R. 87, 2007 CarswellNat 1974, 60 Imm. L.R. (3d) 276, 2007 CF 229, 2007 CarswellNat 457, 2007 FC 229, 310 F.T.R. 34 (Eng.) (F.C.) — referred to Nagalingam v. Canada (Minister of Citizenship & Immigration) (2008), 292 D.L.R. (4th) 463, [2009] 2 F.C.R. 52, 2008 CarswellNat 1221, 2008 FCA 153, 70 Imm. L.R. (3d) 54, 2008 CAF 153, 377 N.R. 151, 2008 CarswellNat 3711, [2008] F.C.J. No. 670 (F.C.A.) — 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 Nagalingam v. Canada (MCI) 65

R. v. Darrach (2000), 2000 SCC 46, 2000 CarswellOnt 3321, 2000 CarswellOnt 3322, 49 O.R. (3d) 735 (headnote only), 36 C.R. (5th) 223, 148 C.C.C. (3d) 97, 259 N.R. 336, 191 D.L.R. (4th) 539, 137 O.A.C. 91, 78 C.R.R. (2d) 53, [2000] 2 S.C.R. 443, [2000] S.C.J. No. 46, REJB 2000-20352 (S.C.C.) — considered R. v. Fanjoy (1985), 62 N.R. 253, 11 O.A.C. 381, (sub nom. Fanjoy v. R.) 48 C.R. (3d) 113, (sub nom. Fanjoy v. R.) 21 D.L.R. (4th) 321, 1985 Carswell- Ont 117, (sub nom. Fanjoy v. R.) [1985] 2 S.C.R. 233, (sub nom. Fanjoy v. R.) 21 C.C.C. (3d) 312, 1985 CarswellOnt 952F, [1985] S.C.J. No. 55 (S.C.C.) — considered Sittampalam v. Canada (Minister of Citizenship & Immigration) (2006), 56 Imm. L.R. (3d) 161, 2006 CarswellNat 5109, 2006 CarswellNat 3236, 2006 FCA 326, 272 D.L.R. (4th) 1, [2007] 3 F.C.R. 198, 2006 CAF 326, 354 N.R. 34, [2006] F.C.J. No. 1512 (F.C.A.) — considered Sittampalam v. Canada (Minister of Citizenship & Immigration) (2007), 2007 FC 687, 2007 CarswellNat 1858, 62 Imm. L.R. (3d) 271, 316 F.T.R. 142 (Eng.), 2007 CarswellNat 4084, 2007 CF 687, [2007] F.C.J. No. 932 (F.C.) — distinguished 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 Tahmourpour v. Canada (Solicitor General) (2005), 27 Admin. L.R. (4th) 315, 2005 C.L.L.C. 230-017, 332 N.R. 60, 39 C.C.E.L. (3d) 229, 2005 Car- swellNat 3078, 2005 CAF 113, 2005 FCA 113, 2005 CarswellNat 841, [2005] F.C.J. No. 543 (F.C.A.) — considered Thuraisingam v. Canada (Minister of Citizenship & Immigration) (2004), 2004 CarswellNat 1179, 2004 FC 607, 40 Imm. L.R. (3d) 145, 251 F.T.R. 282, 2004 CarswellNat 2725, 2004 CF 607, [2004] F.C.J. No. 746 (F.C.) — referred to Veerasingam v. Canada (Minister of Citizenship & Immigration) (2004), 2004 FC 1661, 2004 CarswellNat 4279, 2004 CarswellNat 5733, 2004 CF 1661, [2004] F.C.J. No. 2014 (F.C.) — considered Statutes considered: Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 Generally — referred to s. 7 — referred to Criminal Code, R.S.C. 1985, c. C-46 Generally — referred to s. 467.1(1) [en. 1997, c. 23, s. 11] — referred to Immigration Act, R.S.C. 1985, c. I-2 Generally — referred to 66 IMMIGRATION LAW REPORTER 7 Imm. L.R. (4th)

s. 24 — referred to Immigration and Refugee Protection Act, S.C. 2001, c. 27 Generally — referred to s. 6(1) — considered s. 37(1)(a) — considered s. 97 — considered s. 97(1)(b) — considered s. 115 — considered s. 115(1) — considered s. 115(2) — considered s. 115(2)(a) — considered s. 115(2)(b) — considered Treaties considered: Convention Relating to the Status of Refugees, 1951, C.T.S. 1969/6; 189 U.N.T.S. 150 Article 33 ¶ 2 — referred to

APPLICATION by applicant for judicial review of decision of minister’s delegate in which delegate found that applicant had committed acts of substantial gravity within meaning of s. 115(2)(b) of Immigration and Refugee Protection Act.

Andrew Brouwer, Carole Simone Dahan, for Applicant Michael Butterfield, Nadine Silverman, for Respondent

James Russell J.:

1 This is an application for judicial review of the decision of a Min- ister’s Delegate (Delegate) dated 23 February 2011 (Decision) in which the Delegate found that the Applicant had committed acts of substantial gravity within the meaning of paragraph 115(2)(b) of the Immigration and Refugee Protection Act (Act). The Decision permits the Applicant’s refoulement to Sri Lanka notwithstanding his status in Canada as a convention refugee.

Background 2 The Applicant is a Tamil citizen of Sri Lanka currently living in Can- ada under house arrest. He is married and has a one-year-old daughter with his wife, Niranjala Rajanayagam (Rajanayagam). He also has a nine-year-old son who lives in Canada with Seuranie Persaud (Persaud) the Applicant’s former common-law wife. The Applicant first entered Canada on 31 August 1994. At that time, he claimed refugee status under Nagalingam v. Canada (MCI) James Russell J. 67

the former Immigration Act. He was recognized as a convention refugee by the Convention Refugee Determination Division (CRDD) without a hearing on 2 March 1995. The Applicant went on to become a permanent resident of Canada on 13 March 1997. 3 Between 1999 and 2001, the Applicant accumulated four criminal convictions in Canada. He was convicted of assault, failure to comply with a recognizance, and two counts of mischief under $5000. His conviction for assault was related to an incident at the India Theatre in To- ronto where he struck several other people with a meat cleaver during a brawl. The two mischief convictions were related to an incident at the Tamil Community Center, also in Toronto, where the Applicant and two accomplices overturned tables of food, damaged sound equipment, smashed windows and damaged property with metal pipes. At the time of these incidents the Applicant was a member of the AK Kannan gang in Toronto. 4 In October 2000, two teenaged men were shot to death while they were sitting in a car in Scarborough, Ontario. The deceased were members of the Sellapu gang, which is affiliated with VVT, a rival gang to AK Kannan. At that time, two witnesses identified the Applicant to police as one of the gunmen. However, the Applicant was neither charged or convicted of any offence in relation to this incident. 5 In December 2000, Persaud, the Applicant’s son, and Persaud’s friend were sitting in the Applicant’s car when unknown persons fired several gunshots at the car (Driveway Shooting). In March 2001 the Ap- plicant was shot six times as he was leaving the Mimico Correctional facility where he was serving an intermittent sentence for his assault conviction (Mimico Shooting). 6 On 24 August 2001, the Respondent issued a report which alleged the Applicant was inadmissible for involvement in organized criminality, based on his AK Kannan membership. The Applicant was arrested and detained on 18 October 2001 because of the Minister alleged he was a danger to the public and unlikely to attend his admissibility hearing. The Applicant was referred to an admissibility hearing under section 24 of the former Immigration Act. The Immigration Division of the Immigra- tion and Refugee Board (ID) found on 28 May 2003 that the Applicant was inadmissible to Canada under paragraph 37(1)(a) of the Act because he was involved in organized criminal activity. On that date, the ID also issued a deportation order against the Applicant. 7 The Applicant applied for leave and judicial review of the ID’s admissibility decision on 11 June 2003. On 29 June 2004, Justice Elizabeth 68 IMMIGRATION LAW REPORTER 7 Imm. L.R. (4th)

Heneghan granted leave, and on 12 October 2004, Justice Heneghan dismissed the application for judicial review (see Nagalingam v. Canada (Minister of Citizenship & Immigration), 2004 FC 1397 (F.C.).) 8 After the Applicant returned to Canada in 2009 (see below) the CBSA scheduled him for removal between 23 and 26 March 2011. The removal was to be based on the deportation order issued against the Ap- plicant in 2003. The Applicant challenged the continuing force of the 2003 deportation by an application for leave and judicial review dated 15 March 2011. Justice Robert Barnes granted leave on 28 July 2011 and the application is currently before the Court (IMM-1715-11). 9 Because the Applicant is a Convention refugee, the Minister or his delegate had to issue a danger opinion against him under subsection 115(2) of the Act in order to return him to Sri Lanka. The Minister first issued a danger opinion under paragraph 115(2)(b) on 4 October 2005 (2005 Danger Opinion). The Applicant applied for judicial review of that opinion on 25 October 2005. After removal proceedings were initiated by the Respondent in 2005, the Applicant made a motion for a stay of removal in this Court. This motion was denied by Justice Eleanor Daw- son on 2 December 2005. 10 The Applicant then asked the Ontario Court for an injunction to stop his deportation. During that proceeding, the Respondent undertook to assist the Applicant to return to Canada if his application for judicial review of the danger opinion was successful. Justice Wilson of the Ontario Court of Justice dismissed the motion for a stay on 5 December 2005. The Canada Border Services Agency (CBSA) removed the Applicant to Sri Lanka on 7 December 2005. 11 On the day he was returned to Sri Lanka, Sri Lankan authorities detained the Applicant at the Colombo Airport. After interrogating him for a day, they released him. During a visit to his family in Colombo in 2006, the Applicant says that he, his brother, and their friend were sur- rounded by approximately 25 soldiers while they were out driving. They were released unharmed after being questioned. Also in 2006, Sri Lankan authorities arrested the Applicant at an army checkpoint because his Na- tional ID card showed he was a Tamil from Jaffna. He was detained and interrogated, but was allowed to call a lawyer, and was released after one week. 12 In a judgment dated 28 February 2007, Justice Michael Kelen dismissed the application for judicial review of the 2005 Danger Opinion (Nagalingam v. Canada (Minister of Citizenship & Immigration), 2007 FC 229 (F.C.)). Justice Kelen also certified two questions. The Applicant Nagalingam v. Canada (MCI) James Russell J. 69

pursued an appeal to the Federal Court of Appeal and, on 24 April 2008, the Federal Court of Appeal quashed the 2005 Danger Opinion and remitted the matter to the Minister for reconsideration (see Nagalingam v. Canada (Minister of Citizenship & Immigration), 2008 FCA 153 (F.C.A.) [Nagalingam FCA]). 13 On 16 December 2008, while the Applicant was still in Sri Lanka, the CBSA served him with notice that the Minister intended to seek a new danger opinion under paragraph 115(2)(b) of the Act. The Minister provided disclosure at this time and invited the Applicant to make submissions. The disclosure package included among its 2,195 pages a statutory declaration from Detective Constable Crisanto Fernandes, a member of the Toronto Police Service. In this declaration, Detective Fernandes provided a narrative overview of his involvement in the Tamil Task Force — a joint operation of the Toronto, York, Peel and Durham regional police services and the RCMP — and the Applicant’s suspected involvement in gang activities. 14 The Applicant says that several men came to his house in Sri Lanka early on the morning of 30 January 2009. They banged loudly on his door and, when he answered, the men demanded to see his identification. They blindfolded and handcuffed him and put him in the back of a white van. He says they detained him for approximately three days and, while he was detained, they shackled him to a hook on the floor of his room, beat him with fists, threw cold water on him at night and tortured him with electric shock. He says his captors released him on 1 February 2009 with an apology, after they checked with authorities at the Colombo airport and determined that his story was confirmed. 15 After repeated requests by the Applicant to return him to Canada pursuant to the undertaking the Respondent had given before the Ontario Court of Justice in 2005, the Respondent issued the Applicant a Tempo- rary Resident Visa (TRV) in February 2009. On 24 February 2009, the Applicant returned to Canada. The CBSA detained him on arrival and placed him in immigration detention. He remained in immigration detention until April 2009, when he was released to house arrest. 16 The Applicant made his initial submissions for the new 115(2)(b) danger opinion on 7 August 2009. These submissions included an expert report from Professor Anthony Good, a Professor Emeritus in Social An- thropology at the University of Edinburgh. They also included a report from Dr. Gerald M. Devins, a consulting and clinical psychologist and Professor of Psychology and Psychiatry at the University of Toronto, on risk to the Applicant in Sri Lanka. The Applicant also submitted a statu- 70 IMMIGRATION LAW REPORTER 7 Imm. L.R. (4th)

tory declaration (2009 Declaration) and certified copies of notices of complaints his brother had filed with the Committee to Monitor Investi- gations into Abductions and Disappearances in Sri Lanka (CMIAD) and the Human Rights Commission of Sri Lanka (HRCSL) related to the 30 January 2009 incident. In these submissions, the Applicant asked for the opportunity to cross-examine Detective Fernandes. He also asked for the chance to cross-examine Paranirupan Ariyaratnam (Ariyaratnam), a man who had been interviewed by police in connection with the Mimico Shooting. 17 The Applicant also made submissions to the Delegate in December 2010 (2010 December Submissions). He provided the Delegate with a statutory declaration (2010 Declaration), a declaration from Rajanayagam, a supplementary expert report from Professor Good, and some other documents. He also reiterated his objection to Detective Fer- nandes’ affidavit and noted that the CBSA had not responded to his request to cross-examine Detective Fernandes. 18 The Applicant made further submissions in January 2011. These submissions included several emails related to the Applicant’s return to Sri Lanka in 2005, news articles on Tamil gangs in Toronto and his arrest, and a letter from Amnesty International which said that Amnesty Interna- tional was concerned that the Applicant would be detained and tortured if he were returned to Sri Lanka (Amnesty International Report). Gloria Nafziger, the Refugee Coordinator at the Toronto office of Amnesty In- ternational, wrote the Amnesty International Report. 19 Prior to making her Decision, the Delegate noted that there was a discrepancy between the Applicant’s PIF, filed in 1994 in support of his refugee claim, and his 2009 Declaration. In the PIF from 1994, the Ap- plicant said he was detained and forced to work by the LTTE on several occasions between 1989 and 1994, before he came to Canada. In the 2009 Declaration, he said he left Sri Lanka for Germany, where he remained until coming to Canada in 1994. She invited the Applicant to make submissions on this discrepancy, which he did on 15 February 2011. These submissions consisted of a letter from counsel, and another statutory declaration from the Applicant (2011 Declaration). 20 The Delegate reviewed the materials before her and gave her opinion in the 70-page Decision signed on 23 February 2011. She found that the Applicant could be deported despite subsection 115(1) of the Act and that this would not violate his rights under section 7 of the Charter of Rights and Freedoms. Nagalingam v. Canada (MCI) James Russell J. 71

Decision Under Review 21 The Delegate began by reviewing the Applicant’s immigration history, his criminal record, and his involvement in organized crime. She noted that this Court had reviewed the Applicant’s involvement in gang activity in Canada (Minister of Citizenship & Immigration) v. Nagalin- gam, 2004 FC 1757 (F.C.) [Nagalingam 2004 FC 1757]. She quoted sections of that decision which indicate the police alleged the Applicant was a member of the AK Kannan street gang. She also quoted sections of Canada (Minister of Citizenship & Immigration) v. Nagalingam, 2004 FC 1757 (F.C.) which referred to the Driveway Shooting, the Mimico Shooting, and the incident at the India Theater. 22 The Delegate also referred to Canada (Minister of Citizenship & Immigration) v. Nagalingam, 2004 FC 1757 (F.C.) and portions of the transcript of an interview between Detective Constable Glen Furlong of the Toronto Police Service, Detective Constable Vernon Ward of the York Regional Police Service (Constable Ward) and Ariyaratnam. In that interview, Ariyaratnam identified the Applicant as a member of the AK Kannan gang. The Delegate quoted paragraph 9 of Canada (Minister of Citizenship & Immigration) v. Nagalingam, 2004 FC 1757 (F.C.) where Justice John O’Keefe wrote that Ariyaratnam knew the Applicant would be shot at Mimico because he had been recruited to carry out the shooting. 23 The Delegate then noted that the ID found the Applicant inadmissible under paragraph 37(1)(a) of the Act in 2003. She quoted extensively from that decision in her reasons and reviewed the evidence given at the admissibility hearing by Constable Ward. In his evidence, Constable Ward said that he had been assigned the cases of the Applicant and Per- saud. Constable Ward had informed the Applicant about the pending attempt on his life, but noted that the Applicant seemed unconcerned. The ID noted in 2003 that the transcript of the interview with Ariyaratnam, was the most persuasive piece of evidence in its determination that the Applicant was inadmissible. 24 The Delegate then quoted at length from the transcript of the Ariyaratnam interview including a discussion about the Applicant’s membership in AK Kannan. The Applicant is also mentioned as a person who scares little people and who tried to beat up Ariyaratnam on one occasion. The quoted portion also includes a discussion of the circumstances surrounding the Mimico Shooting. 25 The Delegate noted that the Applicant had applied for judicial review of the ID’s determination that he was inadmissible under paragraph 72 IMMIGRATION LAW REPORTER 7 Imm. L.R. (4th)

37(1)(a) of the Act. She also noted that Justice Heneghan had dismissed the judicial review in Nagalingam v. Canada (Minister of Citizenship & Immigration), 2004 FC 1397 (F.C.). The Delegate found that the Appli- cant was still inadmissible under paragraph 37(1)(a) of the Act.

The Original 115(2)(b) Decision and the Comments of the Federal Court of Appeal 26 The Delegate also quoted from Nagalingam, above, where the Fed- eral Court of Appeal held that acts committed which support a positive opinion under 115(2)(b) could be acts which the subject committed himself or acts of a criminal organization in which the subject was complicit. The Federal Court of Appeal also said that when considering liability arising from complicity, delegates must apply Canadian law, including the Criminal Code RSC 1985 c. C-46 (Code) and other federal statutes. The Federal Court of Appeal also noted that paragraph 37(1)(a) of the Act contained a definition of “organized criminality” that was different from that in subsection 467.1(1) of the Code. Further, the Federal Court of Appeal held that only acts of substantial gravity would meet the threshold required to justify refoulement under section 115 of the Act.

Nature and Severity of the Applicant’s Acts 27 The Delegate then determined whether the Applicant’s acts were of a nature and severity which would justify refoulement. In doing so, she considered the Applicant’s submissions. In his August 2009 submissions, the Applicant said that his relatively few criminal convictions where not of sufficient severity to meet the threshold established by the Federal Court of Appeal for a positive opinion under paragraph 115(2)(b) of the Act. He also pointed out that it had been eight years since his last criminal conviction, that his involvement in the AK Kannan gang had only been for four years, and that the gang had been defunct for nearly eight years. The Delegate characterized the submissions in her Decision as the Applicant presenting himself as reformed and no longer a threat to Canadians. 28 The Delegate also noted the Applicant’s objection to a number of documents that had been disclosed to him by the Minister. In his submissions, the Applicant said that neither the Project 1050 Overview — a report prepared by Detective Constable Rob Takeda of the Toronto Police Street Violence Task Force — nor the Media Package — a collection of news articles gathered by the CBSA — was evidence because neither Nagalingam v. Canada (MCI) James Russell J. 73

was authored or signed. He also said that the Media Package was unrelia- ble and should not be considered. 29 The Delegate also noted that the Applicant objected to the police occurrence reports which had been placed before her. He thought that these should be given no weight at all. He similarly objected to the transcript of the Ariyaratnam interview, saying that Ariyaratnam had lied and made statements that were self-serving. 30 Finally, the Delegate noted the Applicant’s objection to Detective Fernandes’s affidavit. The Applicant said that Detective Fernandes’s assertions were little more than expressions of opinion. 31 After reviewing all the Applicant’s objections, the Delegate said she agreed with him that the evidence before her had varying degrees of reliability and that, where she had given more or less weight to pieces of evidence, she had noted this in her reasons. While the Applicant had indicated that she should given the police occurrence reports no weight, he noted in his submissions that Sittampalam v. Canada (Minister of Citizenship & Immigration), 2006 FCA 326 (F.C.A.) [Sittampalam FCA] showed that they could be used, so long as they were not used as evidence of an individual’s criminality. 32 On the Applicant’s objection to the transcript of the Ariyaratnam interview, the Delegate said that the interview had been relied on by the ID at the Applicant’s admissibility hearing in 2003 and that she had no reason to disregard it. She also noted that the Applicant had made similar objections to the same pieces of evidence at his admissibility hearing and that the ID had carefully reviewed the evidence and found it was reliable. 33 The Delegate also reviewed the Applicant’s December 2010 submissions in which he said that there were no reasonable grounds to believe that he had committed acts of substantial gravity to justify his refoulement. He said that the affidavit of Detective Fernandes, which was the focus of the CBSA’s case against him, had no probative value because it was neither signed nor commissioned. The Delegate considered this argument and rejected it, saying that a signed and dated copy had been disclosed to the Applicant with the Minister’s notice of intent to seek an opinion on 16 December 2008. She also noted that Detective Fernandes had been found credible with respect to similar testimony on the activities of the AK Kannan gang at the admissibility hearing of Jothiravi Sit- tampalam, the leader of the AK Kannan gang. The Delegate found that she had no reason to doubt Detective Fernandes’s testimony. 34 The Delegate also noted the Applicant’s objection to portions of the CBSA’s Memorandum to the Delegate in support of the 115(2)(b) opin- 74 IMMIGRATION LAW REPORTER 7 Imm. L.R. (4th)

ion. The Delegate said that she had taken his objections into account, along with the CBSA’s memorandum, in coming to her own conclusion based on the evidence before her.

Analysis of the Nature and Severity of the Applicant’s Acts 35 The Delegate began her analysis of the nature and severity of the Ap- plicant’s past acts by instructing herself on the task before her. She said that it was incumbent upon her to make a fresh determination on the evidence. She also noted that the standard of proof was low, requiring only that she be satisfied, based on reasonable grounds to believe, that the Applicant’s past acts were substantially grave. 36 The Delegate found that the ID’s reasons at the admissibility hearing provided a solid account of the oral evidence, written statements, opinions of law enforcement officials and texts referred to. She noted that the Applicant had had the opportunity to provide evidence and to call and cross-examine witnesses at the admissibility hearing. She found that the ID’s findings of fact were a useful backdrop to her analysis, noting that the Applicant’s application for judicial review of the ID’s inadmissibility finding had been denied. 37 The Delegate again noted that the evidence before her had varying degrees of reliability and she analyzed it accordingly.

Evidence at the Beyond a Reasonable Doubt Standard 38 The Delegate noted that the Applicant has four criminal convictions, including two for mischief and one for assault. She reviewed the circumstances of the mischief conviction which is arising from the incident at the Tamil Community Center described above.

Other Documentary Evidence 39 The Delegate again took note of the Applicant’s submission that the only elements of proof she should consider were his criminal convictions. Over this argument, however, she found other facts from other sources were evidence she had to consider. 40 First, in 1997, a man named Santhirakumar Fernando identified the Applicant as one of three men who knocked on his door and demanded entry. During the incident, the Applicant was in possession of a handgun. For this incident, the Applicant was charged with, but not convicted of, several offences. The Delegate based this finding on a supplementary arrest report related to the incident. Nagalingam v. Canada (MCI) James Russell J. 75

41 Second, the Applicant was an enforcer for AK Kannan who intimidated witnesses in the past, based on a showcase report contained in a supplementary record of his arrest from 22 November 1998. 42 Third, the AK Kannan gang, of which the Applicant was a member, was known to carry heavy weapons and a store of weapons found behind a gas station was being tested to see if any of the guns were linked to shootings in the Toronto area. This finding was based on the “Pilot Pro- ject Report — Tamil Organized Crime” which was prepared by the Met- ropolitan Toronto Police Tamil Task Force. 43 Fourth, Project 1050 was a joint task-force of CIC and the Toronto Police service based on the Project 1050 Overview prepared by Detective Takeda. Project 1050 had targeted the AK Kannan gang. 44 Fifth, Ariyaratnam had identified the Applicant as someone who scared little people, including Ariyaratnam. He also said that the Appli- cant would be the subject of an assassination attempt which came about on 5 March 2001 at the Mimico Correctional Center. Ariyaratnam had said that this assassination attempt was retaliation against AK Kannan. 45 The Delegate also found that Detective Fernandes had been found reliable by the ID at the admissibility hearing for Jothiravi Sittampalam, the leader of AK Kannan. She then quoted from Detective Fernandes’s declaration which he had provided for the case against the Applicant. Detective Fernandes said that the Applicant was a high-ranking member of AK Kannan and was an enforcer for the gang. He also said that the Applicant was known to intimidate witnesses to prevent them from testifying against gang members. Detective Fernandes also said that the Ap- plicant was identified as one of the shooters in an incident where two teenaged men were killed in Scarborough, Ontario, even though he was not charged. Detective Fernandes further said that gang members often retaliate and do not often report violence out of fear of reprisal. 46 The Delegate noted that the Applicant denied any involvement in the shooting of the two teenagers referred to by Detective Fernandes in his declaration. The Delegate said that in the 2010 Declaration the Applicant had said he was at home with his girlfriend at the time of the shooting. The Delegate found the Applicant’s expression of shock at seeing this allegation in Detective Fernandes’s affidavit was disingenuous because the homicide investigators notes implicated him in the shooting. 47 The Delegate referred to a number of newspaper articles that told the story of how, on 19 October 2010, officers from the Project 1050 task force arrested 51 people suspected of involvement in AK Kannan and its rival gang, VVT. She quoted The Toronto Sun as saying that “Among 76 IMMIGRATION LAW REPORTER 7 Imm. L.R. (4th)

those arrested was AK Kannan boss Panchan Naga... At the time [of the Mimico shooting] detectives said the attack was possibly in retaliation for his alleged link to the murders of Sajeevan Sritharan, 18, and Riski- tresan Selvarajah, 17, a year ago.” [brackets in original]. 48 The Delegate also referred to an exchange from the Applicant’s admissibility hearing where the Applicant had said that he thought the Mimico Shooting occurred because the media misquoted him after he spoke following the Driveway Shooting. He also said that he asked “why do they kill me?” when Constable Ward told him that there was an assassination attempt plotted against him. Based on this evidence, the Dele- gate found, on a balance of probabilities, that the Applicant knew the reason he was targeted and that his explanation that he was targeted because he was misquoted was implausible. 49 The Delegate referred to the ID’s finding that the Applicant was shot in retribution for what he had done to rival gang members. She quoted the ID’s reasons to this effect and noted that the Applicant had said in his submissions to her that his actions showed only that he was an immature youth with a chip on his shoulder who could not control his anger when he was drunk. The Delegate contrasted this assertion with the CBSA’s characterization of the Applicant as a well-known gang enforcer who was one of AK Kannan’s main decision-makers. She noted the Appli- cant’s objection that the CBSA’s memo contained assertions and dramatic hypothesizing, but she found that the conclusions in the memo were a plausible depiction of the Applicant’s actions. 50 The Delegate then summarized her conclusions on the nature and severity of the Applicant’s acts. 51 First, she found that he had taken part in violent assaults as a member of the AK Kannan gang. Her reasonable grounds for this finding were based on the police occurrence reports related to his convictions for assault and mischief. She also based this finding on Ariyaratnam’s statement that the Applicant picked on little people, a statement which the ID had found credible at the Applicant’s admissibility hearing. 52 Second, the Delegate found that AK Kannan was a gang that had committed serious crimes, including murder. She did not find that AK Kannan was either a highly organized criminal enterprise or a loose association of youths, the alternative theories which had been advanced by the CBSA and the Applicant, respectively. This conclusion was based in part on an excerpt from Cold Terror, a book written by Stewart Bell of the Toronto Star. Nagalingam v. Canada (MCI) James Russell J. 77

53 Third, the Delegate found that the Applicant was an enforcer for AK Kannan who had intimidated witnesses. She said that her reasonable grounds for this belief were based on “police information available at the time,” which included Detective Fernandes’s declaration and a supplementary arrest report from 22 November 1998. 54 Fourth, the Applicant was targeted twice for assassination by a rival gang. This spoke to the seriousness with which he was pursued by the rival gang. VVT leadership believed he had committed serious acts against them. The Delegate found that the evidence gave her reasonable grounds to believe that the Applicant knew why he was targeted and that he did not want to share this knowledge with the police. He knew that this evidence revealed that he had been involved in a serious crime. The Delegate based these findings on the evidence given at the Applicant’s admissibility hearing and Ariyaratnam’s statement. 55 Fifth, the Applicant had been a suspect in a double homicide investigation and could have been prosecuted had witnesses been willing to testify. She found that notes made by police officers at the same time as the investigation into the shooting indicated that witnesses identified the Ap- plicant as one of two shooters. Though the credibility of these witnesses was not tested and they did not testify at any trial, the Delegate found that unwillingness to testify is a hallmark of Tamil gang members, as described in Cold Terror, above, and in Detective Fernandes’s declaration. 56 Sixth, the Applicant was a member of AK Kannan from 1997 to 2001. He was an adult and became a father during this period. She referred to an academic article in the CBSA memo which said that rank- and-file members rarely remained in gangs past their teens but that key members remained into their twenties. The Delegate found that the Ap- plicant’s age while he was a gang member was relevant and revealing of his position in the gang.

Conclusions on Nature and Severity 57 The Delegate concluded that there were reasonable grounds to believe that the Applicant committed violent acts against rival gang members. She found that there was evidence he had personally committed violent acts, including participating in a shooting that resulted in two deaths. She concluded that there were reasonable grounds to believe that the Appli- cant’s past acts were serious. He was not a misguided, angry youth, but an enforcer and adult who consciously identified himself with the gang. The Applicant took part in inter-gang warfare as a member of a gang 78 IMMIGRATION LAW REPORTER 7 Imm. L.R. (4th)

which is known to have committed murders and possessed firearms. The Applicant’s past acts were of substantial gravity.

Risk on Return to Sri Lanka 58 Once she had determined that the Applicant had committed acts that were substantially grave, the Delegate turned her attention to the risk he would face if he were returned to Sri Lanka. She noted that paragraph 115(2)(b) of the Act creates an exception to the general principle of nonrefoulement. She also noted that she was required to examine the factors under section 97 of the Act and that, under paragraph 97(1)(b), the risk faced by the Applicant must not be one generally faced by people in every part of Sri Lanka. She said that she also took into account the risk of persecution under section 96 of the Act, though section 97 was the principal guide to her inquiry. 59 The Delegate noted that the Applicant had said in his 2009 Declara- tion that he was born in Jaffna in 1973 and had traveled to Germany to seek asylum in 1989. His German asylum claim was denied in 1992. She then noted that in his 1994 PIF he had said that he was arrested by the Indian Peace Keeping Force (IPKF) in Jaffna in 1988, taken from his family’s farm in 1991 by the LTTE, and then released after his father paid a bribe. He also said that he had been forced to return to the LTTE camp to work once a month until 1994. In 1994, he said he had received military training and was threatened with death unless he joined the LTTE. He said that, at that time, he was afraid for his life and so fled to Canada. 60 The Delegate said that the Applicant had not explained the discrepancy between these two accounts in his initial submissions. She also noted that she had invited him to make submissions on this issue and that he had replied that he was surprised she was raising the issue, given that CIC had his German Driver’s License since 2001. 61 The Delegate noted that the Applicant had said in his February 2011 submissions in response to the discrepancy that, when he came to Can- ada, he had employed a translator who had advised him that his failed asylum claim in Germany would hurt his Canadian claim. He said the translator had invented the story about his troubles with the LTTE between 1988 and 1994. The Applicant had said that, though the specific events cited in his PIF were untrue, he genuinely feared the IPKF, the LTTE, and the Sri Lankan Army, and it was this fear that had grounded his refugee claim. Nagalingam v. Canada (MCI) James Russell J. 79

Submissions on Risk 62 The Delegate next reviewed the Applicant’s submissions on risk. She noted that his August 2009 submissions referred to his arrests in Sri Lanka in 2006 and the allegation that he was tortured between 30 Janu- ary and 1 February 2009. She also noted his reference to Professor Good’s report. 63 The Delegate quoted at length from the Applicants 2009 statutory declaration in which he described the arrest and torture he experienced in January and February of that year. The Applicant’s account did not strike Professor Good as “unusual, implausible, or at odds with what is generally known about Sri Lanka.” 64 The Delegate also noted that, in his December 2010 submissions, the Applicant drew attention to a letter written from the Criminal Investiga- tion Division of the Sri Lankan Police to the CBSA in 2008 (CID Letter). He said that letter was irrefutable evidence that the Sri Lankan Police took the position that he was a member of the LTTE and that AK Kannan was an LTTE Cadre. In those submissions the Applicant also requested an opportunity to cross-examine diplomatic officials who had produced reports included in the package provided to the Delegate by the CBSA, and who said they were unaware of mistreatment of people returning to Sri Lanka from Canada. The Applicant said that objective evidence left no doubt that people like him who were suspected of LTTE involvement were at risk of torture. The Delegate noted that the Applicant also submitted an updated affidavit, an updated report from Professor Good, the Amnesty International Report, and country condition reports to support his position on risk.

Analysis of Risk 65 The Delegate acknowledged that the Applicant’s refugee claim had been accepted by the CRDD without a hearing in 1995. She found that, although at that time the LTTE was at war with the Sri Lankan government, the north of Sri Lanka is now under government control. She noted the Applicant’s submission that he would likely be persecuted because he would be identified as a former LTTE member by the authorities in Sri Lanka. The Applicant supported this assertion with country condition evidence and his own past experiences. 80 IMMIGRATION LAW REPORTER 7 Imm. L.R. (4th)

Country Condition Information 66 The Delegate examined the Amnesty International Report, which said that In our opinion the CID letter allows [sic] that Mr. Nagalingam will almost certainly be detained on or shortly after arrival in Sri Lanka, and as such faces a grave risk of arbitrary and incommunicado detention and torture in that country and should not be removed to Sri Lanka. 67 The Delegate noted that Ms. Nafsziger had not provided any credentials to prove her expertise other than that she was employed by Amnesty International. It was unclear to the Delegate how much of the record Ms. Nafsziger had seen, and she had not identified any sources for her information and opinion. 68 The Delegate reviewed the two reports provided by Professor Good. She noted that his 2009 report indicated: that the quality of official record keeping in Sri Lanka is high; that the background of returning asylum seekers was likely known to authorities there; and that Sri Lankan authorities would likely know the Applicant’s background. Professor Good also said in his report that: the law in Sri Lanka allowed arrest and lengthy detention without charge; that torture is routinely used by security forces and goes unpunished; and that abductions and disappearances had been carried out by paramilitary proxies. The Delegate noted that Professor Good’s 2009 report was inconclusive as to how the defeat of the LTTE by government forces in 2009 would affect the level of risk to returnees. 69 In his 2010 report, Professor Good said that the Sri Lankan government was actively pursuing those who were suspected of involvement with the LTTE. The Delegate contrasted this report with a quotation from the 5 July 2001 — UNHCR Guidelines on Sri Lanka (UNHCR Guide- lines) which said that the Sri Lankan government had relaxed the Emer- gency Regulations that had permitted some of the more questionable practices. The UNHCR Guidelines also said that some adults who had been detained for LTTE involvement had been released following com- pletion of rehabilitation programs. The UNHCR Guidelines noted allegations of torture and death of LTTE suspected detainees in prison and that persons suspected of having links to the LTTE may be at risk of persecution in Sri Lanka. The UNHCR Guidelines also said that links to the LTTE could exclude some people from refugee status, though those same people could be at risk of persecution because of their LTTE membership. Nagalingam v. Canada (MCI) James Russell J. 81

70 The Delegate found that LTTE involvement was a factor to consider, but that country documentation did not indicate large scale mistreatment of former LTTE affiliates. 71 The Delegate reviewed the UK Home Office Operation Guidance Note Sri Lanka: August 2009 which indicated that low level supporters of the LTTE would not generally be of interest to the Sri Lankan authorities. While high-profile LTTE members would be wanted by the authorities, the Delegate found that there was no evidence that the Applicant was such a person. She also referred to the UK Home Office — Country of Origin Information Report for Sri Lanka, dated 11 November 2010 which said that, while many LTTE supporters had been detained in Pro- tective Accommodation and Rehabilitation Centers (PARCS), those with low-level involvement were generally released after completing community reintegration programs. 72 The Delegate also noted that the Sri Lankan government had insti- tuted a reconciliation commission. She found, based on an article from the Integrated Regional Information Networks — a news service of the UN Office for the Coordination of Humanitarian Affairs — that a trend of Sri Lankan refugees returning home had developed. She found that the Tamil diaspora believed there was increasing normalcy and stability in Sri Lanka and that the likelihood of persecution had decreased.

The Applicant’s Past Experiences 73 The Delegate found that the Applicant had spent the period from 2005 to 2009 in Sri Lanka practically without incident. She referred to his interview at the Canadian High Commission in Colombo in 2008, where he said he had been arrested and released after two weeks in 2006. At that interview, he also said that, apart from this arrest and detention, he had not been jailed or severely mistreated. He said that he was tortured at a camp in Jaffna before he came to Canada. The Delegate noted that the High Commission did not issue a Temporary Resident Permit immediately after the interview as it determined that further checks were needed. She also noted that the Applicant had been served with a notice of the Minister’s intent to seek a new 115(2)(b) decision on 23 January 2009 and that, on 9 February 2009, he told officers at the High Commis- sion about his alleged abduction and beating. For the Delegate, the timing of his latest allegation of mistreatment gave rise to credibility concerns. She examined a medical report from Dr. Ellawalla, a Consultant Trauma and Orthopedic Surgeon at the Asiri Central Hospital in Co- 82 IMMIGRATION LAW REPORTER 7 Imm. L.R. (4th)

lombo, which said that the Applicant had soft tissue contusions on his shoulder and wrist and that X-rays did not show any bone injuries. 74 The Delegate also quoted from the CID Letter which said that On Interrogation [the Applicant] admitted committing the following crimes in Canada: 1) Assaulting a security officer on duty at a cinema hall in Canada 2) creating a commotion and causing damages to a restaurant in 1999 3) being a member of LTTE cadre, AK Kannan’s group The letter also said that there were no records showing that the Applicant was a member of “Vambottas Gang.” 75 The Delegate considered the fact that the Applicant’s alleged abduction between 30 January and 1 February 2009 took place after he was served with notice of the Minister’s intent to seek a new 115(2)(b) decision. She reiterated the fact that he had been living in Sri Lanka for several years without incident prior to this event. The Delegate noted that the Applicant misrepresented himself in 1994 and also misrepresented himself at the 2008 interview at the High Commission in Colombo when he said he had been tortured before coming to Canada. She based this finding on the Applicant’s 2011 Declaration, where he said that he had been repeatedly approached by the LTTE to join them before he came to Canada. 76 The Delegate found that the Applicant was not credible and had lied about being tortured on two previous occasions when it served his purposes. She found it highly plausible that whatever happened to him between 30 January 2009 and 1 February 2009 did not involve torture. Not only was the Applicant not credible, but he had a strong interest in build- ing a case for the new 115(2)(b) determination. The Delegate also found that the medical officer who examined the Applicant ten days after his alleged abduction and beating — Dr. Ellawalla — did not conclude that his injuries were consistent with his story of torture. She did, however, accept that this could have happened and that, according to Professor Good, this was not impossible in Sri Lanka. In a footnote to the Decision, the Officer made an alternative finding: if the Applicant had not been detained and tortured, there was no risk to him of further detention and torture. 77 The Delegate reasoned that, because record keeping by the Sri Lankan authorities was meticulous, according to Professor Good, the fact Nagalingam v. Canada (MCI) James Russell J. 83

that the Applicant had been arrested and released indicated that he was not of interest to those authorities. The Delegate concluded that, on a balance of probabilities, the Applicant was not likely to be tortured, or to face cruel or unusual treatment or punishment, or be killed on return to Sri Lanka.

Conclusion on Section 96 Risks 78 The Delegate noted that Tamils from northern Sri Lanka continue to be treated with suspicion by the authorities. Though there were reports of harsh treatment of those suspected of LTTE involvement, the possibility of such treatment did not amount to prima facie recognition of Tamils from the North as convention refugees. She concluded that there was no more than a mere possibility that the Applicant would face persecution if refouled.

Humanitarian & Compassionate Factors 79 After her conclusions on the risks faced by the Applicant on return to Sri Lanka, the Delegate analyzed the Humanitarian and Compassionate (H&C) factors that were part of the balancing process she had to conduct.

Applicant’s Submissions 80 The Delegate noted that in his August 2009 submissions the Appli- cant had drawn attention to his efforts to re-establish his relationship with his son, which had been severed by his deportation in 2005. He also said that Canada was the only place he would have a future because he would either face torture and death or have to live in hiding in Sri Lanka. In his December 2010 submissions the Applicant said he was married and had a 3-month-old daughter. Though he was not living with his wife and daughter, the Children’s Aid Society (CAS) having intervened because of concerns about his fitness as a parent, the Applicant and his wife were before the family courts to try to change that.

Analysis of H&C Factors Establishment 81 The Delegate found that the Applicant had little financial or community establishment because he had been under house arrest since 2009 and had been in detention from 2001 to 2005, when he was deported. 84 IMMIGRATION LAW REPORTER 7 Imm. L.R. (4th)

Family in Canada and Abroad 82 The Delegate noted that the Applicant lives with his two brothers and his parents. The psychological report from Dr. Devins indicates that, though he is in regular contact with his two sisters in Sri Lanka, phone calls to them made him feel bad and he felt guilty about the separation. The same report also indicated that he had a loving relationship with his fianc´ee (now his wife). The Applicant and his wife had never lived together and they had married only one month before the birth of their daughter. 83 Though the Applicant had strong affection for his Canadian family, the Delegate found that his most recent stay in Canada — beginning with his return in 2009 — had been brief. Consequently, though there would be hardship for all concerned if he were removed, this separation could not have been unanticipated. Further, the family could keep in contact through visits and phone calls.

Best Interests of the Children 84 In the 2010 Declaration, the Applicant said he wanted to live with his wife and daughter. He also said that he wanted to rebuild his relationship with his son, Nicholas. The Delegate noted, however, that the Applicant had indicated he had had practically no contact with Nicholas and that it was unclear what contact he had had with his daughter. 85 The Delegate found that there was little on which to base a finding that Nicholas would be adversely affected by the Applicant’s removal. She found that his daughter would be detrimentally affected by his separation from his wife, but that this was tempered by the fact that the Ap- plicant was apart from his daughter because of CAS intervention. She found that his wife and daughter could relocate to Sri Lanka to be with him or take holidays there.

Psychological Condition 86 The Delegate quoted several paragraphs of a letter from Dr. Devins’s report which concluded that the Applicant would suffer extreme and irreparable psychological harm if returned to Sri Lanka. The Delegate found that this conclusion was beyond the expertise of the psychologist and that this report was based on a single interview. She noted that there was no evidence the Applicant had sought counseling on his own. Though the psychologist prescribed freedom from deportation to recover his mental health, this was not a consideration that weighed heavily in his favour Nagalingam v. Canada (MCI) James Russell J. 85

General Situation in Sri Lanka 87 The Applicant’s village in Sri Lanka was in some disorder following the end of the conflict between the LTTE and Sri Lankan government forces. The Delegate found, however, that Sri Lanka was headed in the right direction and, though he would experience a time of transition, this would not amount to significant hardship to the Applicant.

Balancing and Decision 88 The Federal Court of Appeal held in Nagalingam, above, at paragraph 45 that the Delegate must balance the nature and severity of the acts committed or of the danger to the security of Canada against the degree of risk, as well as against any other humanitarian and compassionate considerations 89 The Delegate reiterated her conclusions that the Applicant had committed past actions that were substantially grave and that he would be unlikely to face torture in Sri Lanka. These pointed toward refoulement. She was not satisfied that the hardship the Applicant and his family would face sufficiently counter-balanced the nature and severity of his past acts. 90 The Delegate found that the Applicant could be deported despite subsection 115(1) of the Act, since this would not violate his rights under section 7 of the Charter.

Issues 91 The Applicant raises the following issues: 1) Whether the Delegate breached his right to procedural fairness by: a) denying him the opportunity to cross examine Detective Fernandes; b) failing to provide him with adequate reasons; c) following a procedure that breached the duty of fairness; 2) Whether the Delegate’s conclusion on the nature and severity of his past acts was unreasonable because she: a) found him responsible for acts which he was not convicted of; b) relied on non-conviction evidence; c) failed to identify which Criminal Code offences he had committed; and 86 IMMIGRATION LAW REPORTER 7 Imm. L.R. (4th)

d) did not base her finding on all of the evidence before her; 3) Whether the Delegate’s assessment of the risk he would face on return to Sri Lanka was unreasonable because she: a) ignored or misunderstood evidence going to his abduction in 2009; b) made a finding of fact that was speculative; c) ignored or unreasonably dismissed the expert evidence he submitted.

Standard of Review 92 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. 93 In C.U.P.E. v. Ontario (Minister of Labour), 2003 SCC 29 (S.C.C.) the Supreme Court of Canada held that the standard of review with respect to questions of procedural fairness is correctness. Further, the Fed- eral Court of Appeal in Sketchley v. Canada (Attorney General), 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.” 94 The opportunity to cross-examine witnesses is a procedural choice that engages the right to procedural fairness (see Gagliano v. Canada (Ex-Commissioner of Inquiry into the Sponsorship Program & Advertising Activities), 2008 FC 981 (F.C.) and Beno v. Canada (Attorney General), 2002 FCT 142 (Fed. T.D.)) Further, in Tahmourpour v. Canada (Solicitor General), 2005 FCA 113 (F.C.A.), the Federal Court of Appeal held at paragraph 7 that A reviewing court owes no deference in determining the fairness of an administrative agency’s process: Canadian Union of Public Em- ployees v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539, 2003 SCC 29, at para. 100. Nonetheless, the court will not second guess procedural choices made in the exercise of the agency’s discretion which comply with the duty of fairness. Nagalingam v. Canada (MCI) James Russell J. 87

The standard of review in this case on issues 1(a) and 1(c) is correctness. 95 In Dunsmuir, above, at paragraph 59, the Supreme Court of Canada held that Administrative bodies must also be correct in their determinations of true questions of jurisdiction or vires.[...] true jurisdiction questions arise where the tribunal must explicitly determine whether its statutory grant of power gives it the authority to decide a particular matter. Whether the Delegate had the authority to make a finding of criminal culpability is a true question of vires, so the standard of review with respect to issue 2(a) is correctness. 96 As the Supreme Court held in Dunsmuir (above, at paragraph 50). When applying the correctness standard, a reviewing court will not show deference to the decision maker’s reasoning process; it will rather undertake its own analysis of the question. The analysis will bring the court to decide whether it agrees with the determination of the decision maker; if not, the court will substitute its own view and provide the correct answer. From the outset, the court must ask whether the tribunal’s decision was correct. 97 Issue 2(b) engages issues of admissibility of evidence. As the Su- preme Court of Canada held in R. v. Fanjoy, [1985] S.C.J. No. 55 (S.C.C.) at paragraph 9, the admissibility of evidence is a question of law. In Dunsmuir at paragraph 60, the Supreme Court of Canada also held that questions of law within the expertise of the decision maker will generally be reviewable on a standard of reasonableness. The Immigra- tion and Refugee Board has expertise in questions of credibility and entering evidence, so the standard of review with respect to issue 2(b) is reasonableness. 98 Whether making a determination under paragraph 115(2)(b) requires a Minister’s delegate to find that the subject of that decision committed specific offences calls for the delegate to interpret the words “on the basis of the nature and severity of acts committed” in that paragraph. As the Supreme Court of Canada held in Dunsmuir, above, at paragraph 60, a decision-maker’s interpretation of its enabling statute will generally be given deference. The Delegate in this case is empowered to act by subsection 6(1) of the Act, so, in interpreting 115(2)(b), she is interpreting her enabling statute. The standard of review on issue 2(c) is reasonableness (see also Alliance Pipeline Ltd. v. Smith, 2011 SCC 7 (S.C.C.) at paragraph 28 and Celgene Corp. v. Canada (Attorney General), 2011 SCC 1 (S.C.C.) at paragraph 33.) 88 IMMIGRATION LAW REPORTER 7 Imm. L.R. (4th)

99 Issues 2(d) and 3(a) through (c) all involve factual findings by the Delegate. In Nagalingam, above, at paragraph 32, the Federal Court of Appeal held that the findings of fact of a Minister’s delegate under subsection 115(2) were to be afforded deference. The standard of review on these issues is reasonableness. 100 In N.L.N.U. v. Newfoundland & Labrador (Treasury Board), 2011 SCC 62 (S.C.C.), the Supreme Court of Canada held that the adequacy of reasons is not a freestanding ground for quashing a decision (see paragraph 14). The reviewing Court is to examine the reasons along with the outcome to determine if the Decision is within a range of possible, acceptable outcome. 101 When reviewing a decision on the standard of reasonableness, the analysis will be concerned with “the existence of justification, transparency 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 v. Canada (Minister of Citizenship & Immigration), 2009 SCC 12 (S.C.C.) 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.”

Statutory Provisions 102 The following provisions of the Act are applicable in this proceeding: 37. (1) A permanent resident or a foreign national is inadmissible on grounds of organized criminality for (a) being a member of an organization that is believed on reasonable grounds to be or to have been engaged in activity that is part of a pattern of criminal activity planned and organized by a number of persons acting in concert in furtherance of the commission of an offence punishable under an Act of Parliament by way of indictment, or in furtherance of the commission of an offence outside Canada that, if committed in Canada, would constitute such an offence, or engaging in activity that is part of such a pattern; ... 115. (1) A protected person or a person who is recognized as a Con- vention refugee by another country to which the person may be returned shall not be removed from Canada to a country where they would be at risk of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion or at risk of torture or cruel and unusual treatment or punishment. Nagalingam v. Canada (MCI) James Russell J. 89

(2) Subsection (1) does not apply in the case of a person ... (b) who is inadmissible on grounds of security, violating human or international rights or organized criminality if, in the opinion of the Minister, the person should not be allowed to remain in Canada on the basis of the nature and severity of acts committed or of danger to the security of Canada. 37. (1) Emportent interdiction de territoire pour criminalité organisée les faits suivants: a) etreˆ membre d’une organisation dont il y a des motifs raisonnables de croire qu’elle se livre ou s’est livrée a` des activités faisant partie d’un plan d’activités criminelles organisées par plusieurs personnes agissant de concert en vue de la perpétration d’une infraction a` une loi fédérale punissable par mise en accusation ou de la perpétration, hors du Canada, d’une infraction qui, commise au Canada, constitu- erait une telle infraction, ou se livrer a` des activités faisant partie d’un tel plan; ... 115. (1) Ne peut etreˆ renvoyée dans un pays où elle risque la persécu- tion du fait de sa race, de sa religion, de sa nationalité, de son appartenance a` un groupe social ou de ses opinions politiques, la torture ou des traitements ou peines cruels et inusités, la personne protégée ou la personne dont il est statué que la qualité de réfugié lui a et´´ e reconnue par un autre pays vers lequel elle peut etreˆ renvoyée. (2) Le paragraphe (1) ne s’applique pas a` l’interdit de territoire: ... b) pour raison de sécurité ou pour atteinte aux droits humains ou internationaux ou criminalité organisée si, selon le ministre, il ne devrait pas etreˆ présent au Canada en raison soit de la nature et de la gravité de ses actes passés, soit du danger qu’il constitue pour la sécurité du Canada.

Arguments The Applicant The Delegate Erred in her Assessment of Nature and Severity 103 The Applicant first notes that the Delegate found she could rely solely on the acts he personally committed to find that he could be refouled under paragraph 115(2)(b) of the Act. He challenges this finding on several grounds. 90 IMMIGRATION LAW REPORTER 7 Imm. L.R. (4th)

The Delegate Erred by Finding the Applicant Responsible for Acts of which he had not Been Convicted 104 The Applicant says that immigration officers do not have the jurisdiction to make findings of criminal culpability. When the Delegate found that he had participated in a shooting that resulted in two deaths and had committed violent assaults, she made a finding of criminal culpability and so exceeded her jurisdiction.

The Delegate Erred by Relying on Detective Fernandes’s Affidavit 105 The Applicant argues that the Delegate breached his right to procedural fairness when she denied him the opportunity to cross-examine Detective Fernandes on his declaration. It is a general principal of the common law that any party to a proceeding has the right to cross-examine the other parties’ witnesses. He says that this principal applies to administrative tribunals. He relies on Innisfil (Township) v. Vespra (Township), [1981] 2 S.C.R. 145 (S.C.C.) for the proposition that the adversarial system requires cross-examination where rights of citizens are involved and that citizens have the right to a full hearing. 106 In R. v. Darrach, 2000 SCC 46 (S.C.C.), the Supreme Court of Can- ada held that the lack of cross-examination substantially reduces the probative value of an affidavit. He says that his rights to life, liberty, and security of the person were at stake in this case so he should have been given the opportunity to cross-examine Detective Fernandes.

The Delegate Improperly Relied on Police Occurrence Reports and Non- Conviction Evidence 107 The Applicant quotes from Bertold v. Canada (Minister of Citizenship & Immigration), [1999] F.C.J. No. 1492 (Fed. T.D.) where Justice Francis Muldoon said at paragraph 49 that Since the charges are, at most, some prosecutor’s allegations, one wonders what precisely is the weight they import, if any? Un- resolved, they cannot impugn the applicant’s character or credibility. Reference to such charges was inadmissible. 108 Veerasingam v. Canada (Minister of Citizenship & Immigration), 2004 FC 1661 (F.C.) stands for the proposition that a withdrawn charge, without more, may not be relied on by the ID. The Applicant also says that La v. Canada (Minister of Citizenship & Immigration), 2003 FCT 476 (Fed. T.D.) is authority for the proposition that outstanding criminal charges are irrelevant and should not be considered. Nagalingam v. Canada (MCI) James Russell J. 91

109 The Applicant also quotes from Sittampalam where the Federal Court of Appeal held at paragraph 50 that The jurisprudence of this Court indicates that evidence surrounding withdrawn or dismissed charges can be taken into consideration at an immigration hearing. However, such charges cannot be used, in and of themselves, as evidence of an individual’s criminality. 110 The prohibition on relying on criminal charges extends to police occurrence reports and other non-conviction evidence. When she relied on the notes of the homicide investigator and Ariyaratnam’s statement, the Delegate made a reviewable error.

The Delegate Failed to Identify the Acts the Applicant Committed 111 In the alternative to the above arguments, the Applicant argues that delegates are obligated to identify which specific criminal offences they find the subject of a 115(2)(b) opinion has committed. Delegates must make findings that both the mens rea and actus reus elements of those offences are satisfied in order to find a person can be refouled under paragraph 115(2)(b). 112 In Nagalingam, the Federal Court of Appeal said that, when examining complicity in acts of substantial gravity under paragraph 115(2)(b), delegates must refer to Canadian law, including the definition of party liability in the Criminal Code. The Applicant says this means that, though it is within the delegates’ jurisdiction of a delegate to find personal commission of acts of substantial gravity, that determination must be based on Canadian criminal law. The acts of substantial gravity must be clearly identified Criminal Code offences and delegates must find that subjects of 115(2)(b) opinions committed the actus reus and had the requisite mens rea. 113 In this case, the Delegate failed to identify the specific offences she found the Applicant had committed. It was not enough for her to find that he had participated in violent assaults or the shooting of two teenagers. These acts could support a number of different criminal code offences and it was incumbent on the Delegate to identify which offence she found the Applicant had committed. This was a breach of the Applicant’s right to procedural fairness because it amounts to a failure to provide adequate reasons; the reasons are inadequate in this case because they prevent a court from reviewing the reasonableness of the Decision on this point. 92 IMMIGRATION LAW REPORTER 7 Imm. L.R. (4th)

The Delegate Erred in Interpreting Paragraph 115(2)(b) 114 The Delegate found that the assaults and participation in a shooting were acts of substantial gravity that justified refouling the Applicant to Sri Lanka. The Applicant says that, in so finding, the Delegate erred in her interpretation of paragraph 115(2)(b) because these acts do not meet the threshold of substantial gravity required under that paragraph. The Applicant again refers to Nagalingam in which the Federal Court of Ap- peal quoted from an academic text which said that The text of Article 33(2) makes it clear that it is only convictions for crimes of a particularly serious nature that will come within the purview of the exception. This double qualification-particularly and serious- is consistent with the restrictive scope of the exception and emphasizes that refoulement may be contemplated pursuant to this provision only in the most exceptional of circumstances. Commenta- tors have suggested that the kinds of crimes that will come within the purview of the exception will include crimes such as murder, rape, armed robbery, arson, etc. [italics in original] 115 The Applicant admits that he was convicted of assault, but says he was not convicted of murder, so his acts do not meet the threshold of substantial gravity.

The Delegate’s Finding on Risk was Unreasonable The Delegate Erred in her Treatment of the Evidence of Torture 116 The Applicant says that the Delegate ignored evidence related to his abduction in January/February 2009, the complaints his brother filed with the HRCSL and the CMIAD, and a newspaper article about his abduction. He says that the Delegate examined three factors in assessing his account of torture: the timing of the incident; his misrepresentation in 1994 and Dr. Ellawalla’s lack of conclusion that his injuries were consistent with his story. The Delegate’s finding that what he said happened to him could have happened is unclear so she breached his right to procedural fairness by failing to make a clear finding of fact with respect to his story of abduction and torture.

The Delegate Made Findings of Fact that were Speculative 117 The Applicant says that he emphasized the CID Letter in his Decem- ber 2010 submissions. He also says that he provided Professor Good’s report and the Amnesty International Report in January 2011. Both of these expert reports show that their authors were aware of the events surrounding his story of torture. The Delegate does not cite any evidence for Nagalingam v. Canada (MCI) James Russell J. 93

her conclusion that the events of 2009 and the CID Letter show he is not at risk of torture. The Delegate also does not say why she disagrees with the conclusions of Professor Good so the finding he is not at risk of torture is based on pure conjecture.

The Delegate Failed to Consider the Expert Evidence 118 The Applicant notes that both the Amnesty International Report and Professor Good’s reports conclude that he is at risk of arbitrary detention and torture. However, the Delegate did not weigh this evidence. She simply dismissed the Amnesty International Report based on its author’s lack of credentials and ignored Professor Good’s reports. 119 The Delegate was under a duty to explain how she reached a conclusion contrary to the evidence of the expert reports. If she believed she should not consider the expert evidence, she was under a duty to explain that conclusion. Since she did not, the Delegate’s reasons were inadequate and breached the Applicant’s right to procedural fairness.

The Delegate Provided Inadequate Reasons 120 Although the Delegate’s reasons are long, they are not adequate. The Applicant notes that reasons must set out findings of fact and address the major points in issue. The Delegate did not do this, so her reasons are inadequate and in breach of the Applicant’s right to procedural fairness.

The Procedure Employed was Unfair 121 The Applicant says that he has concerns about the objectivity and in- dependence of the Delegate. He says that the procedure employed in coming to an opinion under paragraph 115(2)(b) is flawed and breaches his rights under the Charter.

The Respondent The Delegate Properly Assessed the Applicant’s Acts 122 In Sittampalam v. Canada (Minister of Citizenship & Immigration), 2007 FC 687 (F.C.) [Sittampalam FC], this Court rejected the proposition that only criminal convictions can be considered when determining whether a person is inadmissible under paragraph 37(1)(a) of the Act. At paragraphs 35 through 37 of Sittampalam, Justice Judith Snider wrote that However, even more responsive to this argument, are the opinions of the Federal Court and the Federal Court of Appeal in Sittampalam I 94 IMMIGRATION LAW REPORTER 7 Imm. L.R. (4th)

and Sittampalam II. I turn to the comments of Justice Hughes in Sit- tampalam I, at para. 35 where he stated: I do not read the Member’s Report at pages 53 and following under the heading “Criminality” as giving improper weight to charges laid or contemplated to be laid but which never went forward. These circumstances are mentioned in the Report but only in the context of a detailed consideration as to the circumstances themselves that were behind the charges or contemplated charges. It was these circumstances and not the charges or contemplated charges that supported the Member’s findings that there were reasonable grounds for finding that section 37(1)(a) of IRPA applied. The Court of Appeal confirmed this point in Sittampalam II, at paragraphs 50-51 where that Court stated as follows: The jurisprudence of this Court indicates that evidence surrounding withdrawn or dismissed charges can be taken into consideration at an immigration hearing. However, such charges cannot be used, in and of themselves, as evidence of an individual’s criminality: see, for example, Veerasingam v. Canada (M.C.I.) (2004), [2004] F.C.J. No. 2014, 135 A.C.W.S. (3d) 456 (F.C.T.D.) at para.11; Thuraisingam v. Canada (M.C.I.) (2004), 251 F.T.R. 282 (T.D.) at para. 35. In this regard, I agree with the Judge that the Board did not rely on the police source evidence as evidence of the appellant’s wrongdoing. Rather, he considered the circumstances underlying the charges and contemplated charges — including the frequency of the appellant’s in- teractions with the police and the fact that others involved were often gang members — to establish that there are “reasonable grounds to believe”, a standard that is lower than the civil standard, that the A.K. Kannan gang engages in the type of activity set out in paragraph 37(1)(a).” In my view, in the present application, we have exactly the same evidence of the police incidents being put to substantially the same use as was done by the Board in reaching the conclusion on inadmissibility. If reliance in that manner by the Board, in the context of the inadmissibility determination, was acceptable to the Courts in Sit- tampalam I and Sittampalam II, it is certainly acceptable in the context before me. Nagalingam v. Canada (MCI) James Russell J. 95

123 The same principle applies to a determination under paragraph 115(2)(b) of the Act, so it was proper for the Delegate to consider non- conviction evidence. 124 The Delegate also addressed the lack of cross-examination of Detec- tive Fernandes when she said Counsel notes that Detective Fernandes’ [sic] affidavit contained in “RD9 was unsigned and undated. However, the same affidavit with a signature and date was disclosed to counsel earlier with the Notice dated December 16, 2008. I also note that Detective Fernandes [sic] testifed at the Admissibility Hearing of Jothiravi Sit- tampalam/Sittambalam and was found to be a credible witness by the Immigration Division member — and that he testifed on similar subjects (his familiarity with AK Kannan and their activities). I have no reason to question Detective Fernandes [sic] credibility. 125 The Delegate based her Decision on several pieces of evidence, only one of which was Detective Fernandes’s affidavit. She noted that he was found to be a credible witness at the Applicant’s admissibility hearing and she had no reason to doubt his credibility. There is no evidence the Delegate put too much or too little weight on this affidavit 126 The issue for this Court to decide is whether there was any evidence rationally capable of supporting the Delegate’s finding that there were reasonable grounds to believe the Applicant participated in a violent attack that resulted in two deaths. Since there was evidence in the form of witness statements to police, Ariyaratnam’s statement, and the retaliatory shootings, the Delegate’s finding was reasonable.

The Delegate Properly Assessed Risk 127 The Delegate gave several reasons why she did not accept that he was tortured by the Sri Lankan authorities in 2009. She considered the timing of the alleged incident, the Applicant’s history of misrepresentation, and Dr. Ellawalla’s report. Against these, the Delegate balanced Professor Good’s reports, which said that the Applicant’s alleged experience was not unusual or implausible for Sri Lanka. 128 The two complaints that the Applicant submitted, one filed with the HRCSL and one filed with the CMIAD, are of low probative value. All that they show is that someone purporting to be the Applicant’s brother filed two complaints. They do not show that the Applicant was actually tortured. 129 The Delegate considered the CID Letter and Professor Good’s reports when she found the Applicant was at a low risk of torture on return. 96 IMMIGRATION LAW REPORTER 7 Imm. L.R. (4th)

Though the Applicant was interrogated in 2005, which was referred to in the CID Letter, the Applicant was not mistreated and was released. He claims he was picked up and tortured on a tip in 2009, but he also says that he was released with an apology. The Respondent says that it its unlikely the police would apologize to a former member of an LTTE cadre; it was not unreasonable for the Delegate to find the Applicant was not at risk from the Sri Lankan authorities. 130 The Delegate did not ignore the Amnesty International Report. It was proper for the Delegate to examine the credentials provided by Gloria Nafziger, the author of the letter, as well as the sources she consulted. It was therefore reasonable for the Delegate to place little weight on this report, given the results of her inquires. 131 The Delegate properly considered Professor Good’s reports and balanced them against the UNHCR and UK Home Office reports which were available to her.

The Delegate’s Reasons are Adequate 132 The Delegate used straightforward logic to put the expert reports and the CID letter into perspective. The parties do not dispute that the Sri Lankan authorities know who the Applicant is, which is all that the CID letter shows. Further, Professor Good said that the Sri Lankan authorities keep meticulous records of detentions and interrogations. There was sufficient evidence for the Delegate’s conclusions, and she clearly articulated her rationale in her reasons. What the Applicant disagrees with is the final Decision, not the reasons themselves.

The Applicant’s Reply Non-conviction Evidence 133 The Applicant says that the Respondent’s reliance on Sittampalam (above) is misplaced. In Sittampalam, the Minister’s delegate considered whether a convention refugee who had been found inadmissible for serious criminality and organized criminality under paragraph 37(1)(a) of the Act was also a danger to the public under paragraph 115(2)(a). Jus- tice Snider held that the delegate was only permitted to rely on non-conviction evidence to establish broader patterns of behaviour. In Sit- tampalam, Justice Snider quoted from the decision of the Federal Court of Appeal in Sittampalam v. Canada (Minister of Citizenship & Immi- Nagalingam v. Canada (MCI) James Russell J. 97

gration), 2006 FCA 326 (F.C.A.), where Justice Linden wrote at paragraph 50 that The jurisprudence of this Court indicates that evidence surrounding withdrawn or dismissed charges can be taken into consideration at an immigration hearing. However, such charges cannot be used, in and of themselves, as evidence of an individual’s criminality... 134 Had the delegate in Sittampalam found that the convention refugee had committed specific acts based on the non-conviction evidence, Jus- tice Snider would have found that this was an error 135 The present case is not like Sittampalam because the Delegate was not looking at organized criminality. In her Decision, the Delegate said that she found the Applicant could be refouled based on acts that he had committed personally. When she found that the Applicant had committed these acts, she relied on dismissed and withdrawn charges and other non- conviction evidence. This was the error cautioned against in Veerasin- gam, above, and Thuraisingam v. Canada (Minister of Citizenship & Im- migration), 2004 FC 607 (F.C.).

Cross-examination of Detective Fernandes 136 The Applicant says that the Respondent has not addressed his argument that he was denied procedural fairness when the Delegate refused to allow him to cross-examine Detective Fernandes on his affidavit. Though the Delegate found Detective Fernandes was credible, this is no answer to a breach of procedural fairness.

There was No Evidence the Applicant Participated in the Scarborough Shooting 137 The only evidence that could possibly link the Applicant to the shooting of two men in Scarborough in October 2000 were the statements of rival gang members given to the investigating police officers. These statements were before the Delegate as double-hearsay, as they were in- troduced into evidence through the affidavit of Detective Fernandes. Fur- ther, any link between the Mimico shooting and the Driveway Shooting was pure conjecture. There was insufficient evidence to raise even reasonable grounds to believe that the Applicant had participated in this shooting. 138 The Respondent has not answered the Applicant’s argument that the Delegate was required to find that he committed the actus reus and had the requisite mens rea of specific Criminal Code offences in order to find that he had committed acts of substantial gravity. 98 IMMIGRATION LAW REPORTER 7 Imm. L.R. (4th)

Analysis of Risk was Unreasonable 139 In her analysis of risk, it was appropriate for the Delegate to approach the Applicant’s allegation that he was arrested and tortured in early 2009 with caution. However, the Delegate was obligated to make a finding on the evidence before her, which she did not do. What the Delegate actually did was set out to diminish the value of the evidence before her, piece by piece. 140 Though the Applicant admitted in his 2011 Declaration that he lied on his PIF in 1994, this was an insufficient basis for the Delegate to find that his account of torture was not credible, especially since his allegation was corroborated by other evidence. The Delegate also ignored Dr. Devins’s psychological report which discussed the post-traumatic symp- toms the Applicant suffered after he was tortured in 2009. Further, the Delegate improperly dismissed the human rights complaints the Appli- cant’s brother filed, saying that they did not prove that the torture took place. 141 Though the Delegate was entitled to weigh each piece of evidence before her, she had a duty to assess the impact of all the evidence glob- ally, which she did not do. This renders her approach to the analysis of risk perverse and capricious.

The Delegate Ignored the Expert Reports 142 When the Delegate drew her conclusion that the Applicant was no longer of interest to the CID, she did so contrary to the explicit findings of Professor Good and Amnesty International. Since she was not making the same finding as the experts, the Delegate was under a duty to explain why she thought they were wrong about the continuing risk to the Appli- cant. Rather than engaging with the expert reports as she was required to do, the Delegate dismissed both of these reports out of hand.

Analysis General 143 This is the second time that an opinion by a delegate of the Minister that the Applicant can be refouled under paragraph 115(2)(b) of the Act has come before this Court for judicial review. 144 Justice Kelen dismissed the Applicant’s application for judicial review of the 4 October 2005 opinion of the Delegate, but the Federal Court of Appeal quashed Justice Kelen’s decision and the delegate’s opinion. Nagalingam v. Canada (MCI) James Russell J. 99

145 In the course of rendering its decision in Nagalingam, above, the Fed- eral Court of Appeal provided extensive guidance to delegates who are called upon to render an opinion under paragraph 115(2)(b) of the Act. Although Nagalingam dealt with complicity under paragraph 115(2)(b), the following points made by the Court are, in my view, important for the application presently before me: 12 The relevant provisions of the Convention Relating to the Status of Refugees, July 28, 1951, [1969] Can. T.S. No. 6 (the Convention) are as follows: Article 1. - Definition of the term “refugee” ... F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that. (a) He has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes; (b) He has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee; (c) He has been guilty of acts contrary to the purposes and principles of the United Nations. Article 33. - Prohibition of expulsion or return (“refoulement”) 1. No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. 2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgement of a particularly serious crime, constitutes a danger to the community of that country. 100 IMMIGRATION LAW REPORTER 7 Imm. L.R. (4th)

..... Article 1. - Définition du terme “réfugié” [...] F. Les dispositions de cette Convention ne seront pas applicables aux personnes dont on aura des raisons sérieuses de penser: (a) Qu’elles ont commis un crime contre la paix, un crime de guerre ou un rime contre l’humanité, au sens des instruments internationaux elabor´´ es pour prévoir des dispositions relatives a` ces crimes; (b) Qu’elles ont commis un crime grave de droit com- mun en dehors du pays d’accueil avant d’y etreˆ admises comme réfugiés; (c) Qu’elles se sont rendues coupables d’agissements contraires aux buts et aux principes des Nations Unies. Article 33. - Défense d’expulsion et de refoulement 1. Aucun des Etats´ contractants n’expulsera ou ne refoulera, de quelque manière que ce soit, un réfugié sur les frontières des territoires où sa vie ou sa liberté serait menacée en raison de sa race, de sa religion, de sa nationalité, de son appartenance a` un certain groupe social ou de ses opinions politiques. 2. Le bénéfice de la présente disposition ne pourra toutefois etreˆ invoqué par un réfugié qu’il y aura des raisons sérieuses de considérer comme un danger pour la sécurité du pays où il se trouve ou qui, ayant et´´ e l’objet d’une condamnation définitive pour un crime ou délit particulièrement grave, constitue une menace pour la communauté dudit pays. ... 36 Both certified questions call for a proper understanding of the international legal principle of non-refoulement, found at Article 33(1) of the Convention and incorporated into Canadian law by subsection 115(1) of the Act. Subsection 115(1) prohibits the return of Conven- tion refugees and protected persons to any country where they would be at risk of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion, or at risk of torture or cruel and unusual treatment or punishment. Nagalingam v. Canada (MCI) James Russell J. 101

37 While it is acknowledged that this rule forms the cornerstone of asylum in international refugee law, its protection is not absolute. In- deed, subsection 115(2), which in turn incorporates Article 33(2) of the Convention into Canadian law, expressly allows to derogate from this principle where the subject is (a) found inadmissible on grounds of serious criminality and constitutes, in the opinion of the Minister, a danger to the public in Canada or (b) found inadmissible on grounds of security, violating human or international rights or organized criminality if, in the opinion of the Minister, the person should not be allowed to remain in Canada on the basis of the nature and severity of acts committed or of danger to the security of Canada. ... 44 By way of summary then, the principles applicable to a delegate’s decision under paragraph 115(2)(b) of the Act and the steps leading to that decision are as follows: (1) A protected person or a Convention refugee benefits from the principle of non-refoulement recognized by subsection 115(1) of the Act, unless the exception provided by paragraph 115(2)(b) applies; (2) For paragraph 115(2)(b) to apply, the individual must be inadmissible on grounds of security (section 34 of the Act), violating human or international rights (section 35 of the Act) or organized criminality (section 37 of the Act); (3) If the individual is inadmissible on such grounds, the delegate must determine whether the person should not be allowed to remain in Canada on the basis of the nature and severity of acts committed or of danger to the security of Canada; (4) Once such a determination is made, the delegate must proceed to a section 7 of the Charter analysis. To this end, the Delegate must assess whether the individual, if removed to his country of origin, will personally face a risk to life, security or liberty, on a balance of probabilities. This assessment must be made contemporaneously; the Convention refugee or protected person cannot rely on his or her status to trigger the application of section 7 of the Charter (Suresh, supra at paragraph 127). (5) Continuing his analysis, the Delegate must balance the nature and severity of the acts committed or of the danger to the security of Canada against the degree of risk, as well as against any other humanitarian and compassionate considerations (Suresh, supra at paragraphs 76-79; Ragupathy, supra at paragraph 19). 102 IMMIGRATION LAW REPORTER 7 Imm. L.R. (4th)

... Standard of proof under paragraph 115(2)(b) of the Act: reasonable grounds 47 The determination of the proper standard of proof required to bring the appellant under the exceptions of paragraph 115(2)(b) is important, as an error on the standard would undeniably permeate the interpretation of the law and the review of the evidence. 48 As noted above, subsections 115(1) and (2) of the Act incorporate the principle of non-refoulement along with its exceptions into Cana- dian law. 49 Although subsection 115(2) does not explicitly re-state the evidentiary threshold of “reasonable grounds” found at Article 33(2) of the Convention, it does confer to the Minister a discretionary power to decide “if, in (his) opinion, the person should not be allowed to remain in Canada.” In my view, this discretionary power, examined within the structure of section 115 of the Act, is consistent with a standard of reasonable grounds. Discretionary decisions will generally be afforded considerable deference. However, I hasten to add “that discretion must be exercised in accordance with the boundaries imposed in the statute, the principles of the rule of law, the principles of administrative law, the fundamental values of Canadian society, and the principles of the Charter” (Baker, supra at paragraph 56). 50 I therefore conclude that the proper standard for a determination under subsection 115(2) of the Act is reasonable grounds. In doing so, I note that this standard has previously been articulated as being: ...a standard of proof that, while falling short of a balance of probabilities, nonetheless connotes “a bona fide belief in a serious possibility based on credible evidence.” See Attorney General of Canada v. Jolly, [1975] F.C. 216 (F.C.A.). ... 69 In addressing my final point of analysis on the second certified question, I accept the appellant’s argument that the “fundamental character of the prohibition of refoulement and the humanitarian essence of the ... Convention more generally, must be taken as establishing a high threshold for the operation of exceptions” (Lauter- pacht, sir E. and D. Bethlehem, “The scope and content of the principle of non-refoulement” in Refugee Protection in International Law (Cambridge: E. Feller, V. Turk and F. Nicholson, 2003) at paragraph 169). 70 This idea of a “high threshold for the operation of exceptions” is supported by the wording of the Act itself and the choices made by Nagalingam v. Canada (MCI) James Russell J. 103

Parliament. Specifically, I note that paragraph 115(2)(a) applies where the person has been found inadmissible for serious criminality, as defined by subsection 36(1) of the Act, that is, for convictions relating to “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.” Conversely, inadmissibility for criminality pursuant to subsection 36(2) does not fall within the exceptions of paragraph 115(2)(a) or (b), thereby indicating that minor offences were not contemplated as meeting this particular threshold. This is even more so when we consider that, for paragraph 115(2)(a) to apply, the individual has to be found, in the opinion of the Minister, to be “a danger to the public in Canada”. 71 Indeed, as Lauterpacht and Bethlehem note: 186. The text of Article 33(2) makes it clear that it is only convictions for crimes of a particularly serious nature that will come within the purview of the exception. This double qualificationparticularly and serious- is consistent with the restrictive scope of the exception and emphasizes that refoulement may be contemplated pursuant to this provision only in the most exceptional of circumstances. Commentators have suggested that the kinds of crimes that will come within the purview of the exception will include crimes such as murder, rape, armed robbery, arson, etc. [References omitted] 72 This same restrictive approach applies to paragraph 115(2)(b). I note that, under this paragraph, inadmissibility on grounds of or- ganised criminality is treated with the same importance as inadmissibility on security grounds (section 34) or inadmissibility for violating human or international rights (section 35). Under those two sections, a person is inadmissible for, among other things: • Engaging in an act of espionage or an act of subversion against a democratic government, institution or process as they are understood in Canada (34(1)(a)); • Engaging in terrorism (34(1)(c)); • Committing an act outside Canada that constitutes an offence referred to in sections 4 to 7 of the Crimes against Humanity and War Crimes Act (35(1)(a)). 73 Despite the critical nature of these infractions, Parliament has nonetheless given the Minister the discretion to assess the nature and severity of the acts before determining if the subject should be 104 IMMIGRATION LAW REPORTER 7 Imm. L.R. (4th)

refouled under paragraph 115(2)(b). This, to me, suggests that paragraph 115(2)(b) will only be triggered where the acts committed are of substantial gravity. ... 78 In this case, the Delegate found that the A.K. Kannan was a criminal organization generally involved in severe criminal acts, and that the appellant was an active member in that group. This is not sufficient to meet the threshold of paragraph 115(2)(b) of the Act. On this point, I note that the specific rank of the appellant within the A.K. Kannan criminal organization is unclear. In the Request for Min- ister’s Opinion, supra, the appellant is said to be a “leader” by a source “confirmed [to be] reliable” (at paragraph 24), whereas in the Delegate’s Opinion, he is referred to as an “enforcer” on the basis of a witness’ statement who later disowned his prior declaration to that effect. 146 In the present case, the Delegate specifically rejected complicity as the basis for her opinion and chose to base her determination under paragraph 115(2)(b) upon acts personally committed by the Applicant. 147 In so doing, she first of all had to determine whether there were reasonable grounds (i.e. a serious possibility based on credible evidence) for believing that the Applicant had personally engaged in criminal acts the nature and severity of which warranted the application of the exception embodied in paragraph 115(2)(b). 148 In undertaking this exercise the Delegate had to bear in mind that: a. The discretion under subsection 115(2) must be exercised in accordance with the boundaries imposed in the statute, the principles of the rule of law, the principles of administrative law, the fundamental values of Canadian society, and the principles of the Charter; b. The fundamental character of refoulement and the humanitarian essence of the Convention must be taken as establishing a high threshold for the operation of the exception; c. Paragraph 115(2)(b) will only be triggered if the acts committed personally by the Applicant are “of substantial gravity.” Minor of- fenses will not meet this threshold. 149 Once the Delegate determined that the Applicant should not be allowed to remain in Canada on the basis of the nature and severity of the acts he had committed, she then had to assess whether, on a balance of probabilities, his removal to Sri Lanka would expose him to face a risk to his life, security or liberty. Nagalingam v. Canada (MCI) James Russell J. 105

150 The Delegate then had to balance the nature and severity of the acts by the Applicant committed against the degree of a risk he faced, if any, as well as against any other humanitarian and compassionate considerations.

Nature and Severity of Acts Committed 151 As the Decision makes clear, the Delegate was fully aware of the principles laid down by the Federal Court of Appeal in Nagalingam, above, and did her best to follow them. This application for judicial review is about whether she succeeded in doing so. 152 When she found that the acts the Applicant committed were of a nature and severity sufficient to engage the exception contained in paragraph 115(2)(b) of the Act, the Delegate relied upon a variety of evidence and came to the following conclusions: The evidence before me provides me with reasonable grounds to believe that Mr. Nagalingam committed violent acts against rival gang members resulting in that gang targeting him for assassination on two occasions. In the present case, there is evidence of Mr. Nagalingam having personally committed violent acts including participation in a shooting which resulted in two deaths. In my opinion, to prove that he was also likely complicit by “aiding and abetting” his comrades in additional criminal endeavours is not required. I am satisfied, to the necessary standard of reasonable grounds to believe, that Mr. Nagalingam’s past acts were serious. For a period of some 4 years he was an “enforcer” for the AK Kannan gang. It is my belief that he was not merely a misguided, drunken, angry youth (Counsel’s view), but in fact an adult who consciously identified himself with a violent criminal organization which had no respect for the laws of Canada. Specifically, he took part in the violent intergang warfare activities of the AK Kannan — a gang known to have committed murders against their rival gang members and known for possessing a variety of firearms. I therefore conclude that Mr. Nagalingam’s past acts as a member of the A.K. Kannan gang were of substantial gravity. 153 The Decision suggests that the above conclusions are based upon the following factual findings made by the Delegate: 1. The Applicant took part in violent assaults as a member of the AK Kannan gang (based on the police occurrence reports for his convictions of assault and mischief and because, according to Ariyaratnam, he “always scared little people”); 106 IMMIGRATION LAW REPORTER 7 Imm. L.R. (4th)

2. AK Kannan was a gang that perpetrated serious crimes — most notably assassinations of rival gang members (based on an excerpt from a book by Toronto Star journalist Stuart Bell); 3. As early as November 1998, the Applicant was as an “enforcer” in the AK Kannan gang and he had a history of intimidating witnesses (based on the declaration of Detective Fernandes and a supplementary record of arrest, dated 22 November 2008); 4. The Applicant was targeted by the rival VVT gang in retribution for acts he committed against one of its affiliates. That there were two attempts on his life speaks to the seriousness with which he was pursued — these were not random acts or acts committed in the heat of the moment. The VVT leadership believed he had committed acts that were extremely serious (based on the evidence reviewed at the Applicant’s admissibility hearing in 2003); 5. The Applicant was identified as a participant in a double shooting, so he is a suspect in the related investigation. Based on the investigating officer’s notes, he could have been prosecuted and possibly convicted if the witnesses had been willing to testify (based on the declaration of Detective Fernandes and exhibited notes of an investigating officer); 6. The Applicant belonged to the AK Kannan gang for a number of years — at least from 1997-2001. At that time he was not a youth, but rather between the ages of 24 and 28. The research compiled by the CBSA suggested that “rank and file” members rarely remain affiliated with gangs past adolescence, while those who oc- cupy more senior positions in gangs remain members into their mid-twenties. 154 In essence, the Delegate found there were reasonable grounds to believe that the Applicant had personally engaged in violent inter-gang warfare activities as a member of the AK Kannan gang (a gang known to have murdered rival gang members and known for possessing firearms) and, in particular, that the Applicant had participated in a shooting which had resulted in two deaths. 155 The Applicant suggests there are several reviewable errors contained in these findings. My review of the Decision, and the evidence referred to, leads me to the conclusion that there was sufficient evidence to support reasonable grounds to believe that the Applicant had committed violent acts, including homicide, on behalf of the AK Kannan gang. Hence, I cannot accept that the Delegate erred by finding the Applicant responsible for acts for which he had not been convicted (I see nothing in the Nagalingam v. Canada (MCI) James Russell J. 107

Federal Court of Appeal decision in Nagalingam or in paragraph 115(2)(b) or the scheme of the Act that requires a conviction), or that the Delegate placed improper reliance on police occurrence reports, charges, and other non-conviction evidence, or that the Delegate failed to identify the particular offense for which the Applicant was responsible and failed to make a clear finding that the evidence satisfied the elements of that particular offense. 156 In my view, the Applicant is attempting to introduce restrictions and conditions into the paragraph 115(2)(b) process for which there is no statutory or other authority. His piecemeal evisceration of the Delegate’s reasons does not take into account the Decision as a whole and the entire history of decisions concerning the Applicant that it follows and draws upon. The Applicant is a proven liar and obviously wishes to downplay the violent role he played in a context where threats and reprisals ensured that witnesses would not come forward and actual convictions were difficult to obtain. It would be ridiculous if the Applicant’s success at violence and intimidation could now shield him from a negative 115(2)(b) opinion. There are reasonable grounds to believe that this man killed two men; this is a crime of sufficient gravity to warrant the application of this paragraph, to say nothing of the crimes of which he was actually convicted. 157 It is certainly possible to argue about the cogency and value of some of the evidence used to ground the Delegate’s conclusions. However, in my view, the reasons are clear and show why the Delegate found there are reasonable grounds to believe that the Applicant has killed on behalf of the AK Kannan gang for which he would have been convicted of homicide if anyone had dared to testify. I think that this homicide quali- fies as an act of “substantial gravity” and satisfies both the Article 33(2) of the Convention and the Federal Court of Appeal’s reading of paragraph 115(2)(b) at paragraph 73 Nagalingam: “paragraph 115(2)(b) will only be triggered where the acts committed are of substantial gravity.” 158 It seems to me, then, that if the Applicant has any grounds for his attack upon this aspect of the Decision, those grounds must lie in the sufficiency of the evidence used to support the conclusion he killed on behalf of the AK Kannan gang or the Delegate’s failure to allow him to test at least some of that evidence through cross-examination of Detec- tive Fernandes. 159 As the Federal Court of Appeal, relying upon Baker, made clear in Nagalingam at paragraph 49, the discretionary power embodied in section 115 of the Act “must be exercised in accordance with the boundaries 108 IMMIGRATION LAW REPORTER 7 Imm. L.R. (4th)

imposed in the statute, the principles of the rule of law, the principles of administrative law, the fundamental values of Canadian society, and the principles of the Charter.” 160 One of the fundamental principles of administrative law is procedural fairness. On the present facts, the Applicant repeatedly requested that, given the rights and risks at stake in this case, he be given the opportunity to cross-examine Detective Fernandes. The evidence in Detective Fernandes’s sworn declaration was key to the CBSA’s case against the Applicant, but his multiple requests to cross-examine Detective Fernan- des were ignored. The record shows that someone has written on the letter from Applicant’s counsel, dated 7 August 2009 and requesting the opportunity to cross-examine Detective Fernandes the words “not hap- pening”. I think it is also important to note that in the 7 August 2009 submissions, the Applicant also requested the opportunity to cross-examine Ariyaratnam, who had given statements to the police that the Delegate had relied on to conclude that the Applicant was an enforcer in AK Kannan. On the 7 August 2009 submissions, someone has written next to the request to cross-examine Ariyaratnam the words “in what setting?” and “no jurisdiction” [underlining in original]. It appears that the Delegate, or someone else at CIC, was under the impression that the 115(2)(b) process gave the Delegate neither the authority nor the facility to allow cross-examination. Right or wrong though this conclusion may be, the record does not disclose how the Delegate arrived at this conclusion, and I see nothing in the record to support it. The procedural choice to deny the opportunity to cross-examine does not meet the threshold established in Tahmourpour, above. 161 It is clear then, that the Respondent was well aware that the Applicant wanted to cross-examine Detective Fernandes and that the Respondent decided for some unexplained reason not to grant the Applicant’s request. In my view, this raises two procedural fairness issues: the failure to allow the Applicant to cross-examine Detective Fernandes in a situation where the consequences of the Decision are extremely serious for the Applicant; and the failure to provide reasons for refusing the request to cross-examine. 162 It is well-established law that, in general, “Any party is entitled to cross-examine any other party who gives evidence and his witnesses, and no evidence affecting a party is admissible against that party unless the latter has had an opportunity of testing its truthfulness by cross-examination.” See Halsbury’s Laws of England, 4th Edition, Volume 17 (London: Butterworths, 1980) at page 193. Nagalingam v. Canada (MCI) James Russell J. 109

163 This principle has been attributed to Allen v. Allen, [1894] P. 248 (Eng. C.A.) where Lopes LJ found: ... It appears to us contrary to all rules of evidence, and opposed to natural justice, that the evidence of one party should be received as evidence against another party, without the latter having an opportunity of testing its truthfulness by cross-examination.... 164 In the present case, of course, we are not dealing with criminal procedure and the full panoply of safeguards devised to ensure that guilt is established beyond reasonable doubt. However, the Supreme Court of Canada considered the obligations of administrative tribunals with respect to this duty of natural justice in Innisfil (Township), above: It is within the context of a statutory process that it must be noted that cross-examination is a vital element of the adversarial system applied and followed in our legal system, including, in many instances, before administrative tribunals since the earliest times. Indeed the adversarial system, founded on cross-examination and the right to meet the case being made against the litigant, civil or criminal, is the procedural substructure upon which the common law itself has been built. That is not to say that because our court system is founded upon these institutions and procedures that administrative tribunals must apply the same techniques. Indeed, there are many tribunals in the modern community which do not follow the traditional adversarial road. On the other hand, where the rights of the citizen are involved and the statute affords him the right to a full hearing, including a hearing of his demonstration of his rights, one would expect to find the clearest statutory curtailment of the citizen’s right to meet the case made against him by cross-examination. 165 Given the important interests at stake in the Applicant’s case, including freedom from persecution and torture and the rights to life, liberty and security of the person, it is my view that both section 7 of the Char- ter of Rights and Freedoms and the common-law principles of natural justice required that he be given an opportunity to test the evidence given by Detective Fernandes. The Delegate placed a very strong reliance on Detective Fernandes’s evidence for her finding that the Applicant was involved in violent crime, including acts of homicide. At the very least, the Delegate was required to provide the Applicant with clear reasons why procedural fairness in this case did not permit him to cross-examine Detective Fernandes on his declaration. 166 The Federal Court of Appeal in Sittampalam, above, held that: The jurisprudence of this Court indicates that evidence surrounding withdrawn or dismissed charges can be taken into consideration at an 110 IMMIGRATION LAW REPORTER 7 Imm. L.R. (4th)

immigration hearing. However, such charges cannot be used, in and of themselves, as evidence of an individual’s criminality: see, for example, Veerasingam v. Canada (M.C.I.) (2004), [2004] F.C.J. No. 2014, 135 A.C.W.S. (3d) 456 (F.C.T.D.) at para.11; Thuraisingam v. Canada (M.C.I.) (2004), 251 F.T.R. 282 (T.D.) at para. 35. 167 In the case at bar, it is my view that the Delegate used evidence “surrounding” serious charges that were never brought against the Applicant to ground her paragraph 115(2)(b) finding concerning reasonable grounds to believe that the Applicant has committed crimes of sufficient gravity. 168 This evidence included the homicide investigator’s notes (which did not lead to a criminal charge against the Applicant), Detective Fernan- des’s sworn declaration and Ariyaratnam’s statement. In my view, it was not inappropriate for the Delegate to rely upon this evidence, but she appears to have forgotten the procedural fairness issues that arise when someone wishes to challenge sworn testimony. As the Federal Court of Appeal made abundantly clear in Nagalingam at paragraph 49, paragraph 115(2)(b) discretion must be exercised within the boundaries “imposed in the statute, the principles of the rule of law, the principles of administrative law, the fundamental values of Canadian society, and the principles of the Charter.” These boundaries include the rules of procedural fairness applicable in this context. Simply put, procedural fairness required the Delegate to at least consider whether cross-examination of Detective Fernandes was required and to provide clear reasons for any refusal, which she did not. 169 The Respondent has not, in my view, provided a satisfactory answer on this point. 170 In the Decision itself the Delegate says that she has “no reason to question Detective Fernandes’ credibility”, page 24 of the Decision: Counsel notes that Officer Fernandes’ [sic] affidavit contained in “RD 9” was unsigned and undated. However, the same affidavit with a signature and date was disclosed to counsel earlier with the Notice dated December 16, 2008. I also note that Officer Fernandes testified at the Admissibility Hearing of Jothiravi Sittampalam/Sittambalam and was found to be a credible witness by the Immigration Division member-and that he testified on similar subjects (his familiarity with AK Kannan and their activities). I have no reason to question Officer Fernandes’ [sic] credibility. [Emphasis added] This is as close as the Delegate comes to explaining why the information and evidence provided by Detective Fernandes does not need to be Nagalingam v. Canada (MCI) James Russell J. 111

tested: his evidence has been used in other contexts and there is no need to doubt his credibility. In my view, this does not answer the procedural fairness issues that arise in this case. Just because there is no apparent reason on the face of the record to doubt Detective Fernandes’s credibility does not mean that his credibility, and the value of the evidence he provides, will look the same if he is cross-examined. The purpose of cross-examination is to test and contextualize apparently credible and acceptable evidence. 171 The Delegate’s refusal to allow the Applicant to cross-examine Detective Fernandes is tantamount to denying the Applicant a right to test the evidence against him because the Delegate has decided it is credible and acceptable without the benefit of cross-examination. The Re- spondent has argued before me that the system is not set up to allow for cross-examination in this context. He says the 115(2)(b) discretion does not require or involve any oral hearing, and Parliament decided that the kind of evidence testing that goes on in a courtroom should not be part of the process that a delegate undertakes in rendering an opinion based upon all of the evidence before her. 172 I can find nothing in the Act or Regulations to suggest that Parliament intended to exclude cross-examination in all instances, or that Parliament intended to exclude procedural fairness considerations that would require a delegate to consider the issue of cross-examination. At the same time, we have specific direction from the Federal Court of Appeal in Nagalin- gam that the discretion under section 115 “must be exercised in accordance with the boundaries imposed in the statute, the principles of the rule of law, the principles of administrative law, the fundamental values of Canadian Society and the principles of the Charter.” In other words, in my view, the rules of procedural fairness articulated in Baker remain very much a part of the process under section 115 of the Act. 173 At page 38 of the Decision, the Delegate says that As early as November 1998, Mr. Nagalingam’s position in AK Kan- nan was as an enforcer and he had a history of intimidating witnesses. My reasonable grounds for this belief is based on police information at that time. 174 The Delegate has footnoted this statement to a supplementary record of arrest and to Detective Fernandes’s affidavit. At paragraph 15 of his affidavit, Detective Fernandes said that [Nagalingam’s] position in this gang was as an enforcer. He has been known to intimidate witnesses in criminal proceedings. 112 IMMIGRATION LAW REPORTER 7 Imm. L.R. (4th)

175 Detective Fernandes does not refer to any evidence in his affidavit to support this assertion, to which the Delegate has used similar language in the Decision. The Delegate has also referred to a supplementary arrest report related to the 22 November 1998 India Theatre incident, which reads in part The accused is a known gang member of the Tamil gang known as the AK Kannan gang and his position in this group is as an enforcer. 176 Both the affidavit and the supplementary arrest report contain similar language to what ultimately ended up in the Decision. What I think is important is that we cannot say for certain how the Delegate relied on the arrest report and the affidavit in coming to the conclusion that the Appli- cant was an enforcer. She clearly felt it was important enough to cite both documents as evidence, but we cannot tell if she felt that the affidavit bolstered the arrest report, or vice versa. 177 Second, at page 39 of the Decision, the Delegate says that Detective Fernandes’s affidavit and Cold Terror — the book by Stewart Bell of the Toronto Star — show that an unwillingness to testify is a hallmark of gang victims. Intimidating witnesses was one of the acts that the Dele- gate found the Applicant had committed while he was a member of AK Kannan. As Detective Fernandes said at paragraph 28 of his affidavit: Gang members have few convictions; the reason being that victims and witnesses are reluctant to testify for fear of reprisal. As a result, most gang members escape convictions due to the lack of evidence at the time the matter is scheduled for trial. 178 As in the first example, it is not clear to me what role the affidavit played in the Delegate’s conclusion. Detective Fernandes’s comments on cross-examination could have changed her opinion, if she felt that his affidavit bolstered the credibility of the Stewart Bell book. It may be that the fact that Detective Fernandes agreed with both the supplementary arrest record and Cold Terror made the Delegate more comfortable with relying on these documents; we just do not know. 179 Though it is not clear how extensively the Delegate relied on Detec- tive Fernandes’s affidavit, at the very least I cannot say that she placed no reliance on it, or his credibility, to bolster her conclusions. Given the interests at stake in this application — separating the Applicant from his family, for one — it is simply not safe to say that he did not need to cross-examine Detective Fernandes on his affidavit. Nagalingam v. Canada (MCI) James Russell J. 113

Opportunity to Cross-examine 180 I have reviewed the record in this proceeding and nothing indicates that the Applicant was ever given the opportunity to cross-examine Detective Fernandes or that he had the opportunity to raise the issue but did not. The Applicant asked to cross examine Detective Fernandes in his submissions of 7 August 2009, but did not get an answer from the Re- spondent. He also raised the issue in his 19 December 2010 submissions and went so far as to say that It should be noted that there may be more information that would come out on cross-examination than Officer Fernandes has so far set out in his affidavit, and that may be adverse to the CBSA’s case. 181 There is nothing to show that the Applicant has been anything but diligent in asking for the opportunity to cross examine Detective Fernandes. 182 I have also reviewed the relevant portions of the record from the Ap- plicant’s immigration proceedings before the Court. Although Detective Fernandes’s affidavit was sworn in 2008, after both the 2003 admissibility hearing and the 2005 danger opinion, the information in it concerns events which all occurred prior to 2001. Had Detective Fernandes been examined or cross-examined in these (or other) earlier proceedings, this could have addressed the Applicant’s concerns. However, he was not. 183 The ID Member at the 2003 admissibility hearing based her decision on the testimony of three witnesses: the Applicant, Persaud — his then common-law wife — and Constable Ward — the Police Officer who had interviewed Ariyaratnam. There is no indication on the record that Detective Fernandes was examined during this proceeding or that the Applicant should have asked to cross-examine him but did not. 184 In the Decision, the Delegate notes that the ID found Detective Fer- nandes reliable at Jothiravi Sittampalam’s admissibility hearing (Sit- tampalam being the former leader of AK Kannan). However, at the 2003 admissibility hearing, Constable Ward testified that Detective Fernandes and two other detectives had identified some people as AK Kannan members. The Member said in that decision that For the purpose of this decision, the reasons for [Detective Fernan- des’s and the other’s] conclusions and the sources from which such information was obtained could not be challenged for credibility concerns. I am of the view that in the absence of their testimony, a minimum probative value can be accorded to the results of their investigations. 114 IMMIGRATION LAW REPORTER 7 Imm. L.R. (4th)

185 Although the Member at the Applicant’s admissibility hearing did not say that Detective Fernandes was not credible, she was at least concerned that he might have more to add. This, I think, undermines the Delegate’s statement that, “I have no reason to question Officer Fernandes’ [sic] testimony.” The contradictory findings of the two ID members on the reliability of Detective Fernandes’s evidence indicate to me that the Delegate should have been alive to the possibility that he should be cross-examined. Detective Fernandes did not testify at the Applicant’s admissibility hearing, so the Applicant did not have an opportunity to either object to his evidence or cross-examine him at that time. 186 With respect to the 2005 danger opinion, there was no oral hearing at all. Detective Fernandes also did not provide any evidence to support that danger opinion, so the issue of cross-examining him did not arise. Since Detective Fernandes’s evidence was not before the delegate in 2005, the Applicant could not have been expected to ask to cross-examine him at that time. 187 Finally, I think it is worth noting again that what the Delegate relied on was an affidavit from 2008. Though earlier proceedings may have given the Applicant the opportunity to test some of Detective Fernan- des’s evidence, he would have been unable to challenge the assertions which were most relevant to the danger opinion under review in this case, as they had not yet been made. 188 To allow cross-examination on evidence submitted to the Minister’s delegate does not involve turning that process into an oral hearing and importing criminal rules of evidence. It simply involves applying well- recognized principles of procedural fairness taken from administrative law. In my view, this would not necessarily require that cross-examination on affidavits be allowed in all cases (although it is difficult to con- ceive of a set of circumstances where it would be safe to disallow it when requested), but a delegate must consider the matter and provide reasons why it is not appropriate or reasonable on the facts. The Court must be able, on judicial review, to see that the delegate’s refusal to allow cross- examination is within the range of possible, acceptable outcomes. There is no evidence before me that the Delegate did either of these things. Cross-examination might well have strengthened the evidence against the Applicant or it might have provided grounds to question Detective Fer- nandes’ assessment and the evidence upon which it was based. We will never know. All we know is that someone made a decision not to allow cross-examination, and not to tell the Applicant, or the Court, why. This Nagalingam v. Canada (MCI) James Russell J. 115

is not acceptable given the interests at stake, and Canada’s obligations under the Convention.

Risk in Sri Lanka 189 As the Federal Court of Appeal in Nagalingam said, and as the Dele- gate well understood, an opinion under paragraph 115(2)(b) requires that the Delegate assess whether the Applicant, if removed to his country of origin, will personally face a risk to life, security or liberty, on a balance of probabilities. The Delegate must then balance the nature and severity of the acts committed against the degree of risk, as well as against any other humanitarian and compassionate consideration. 190 In assessing risk, the Delegate had to take into account the Appli- cant’s own account of what had happened to him in his past encounters with the Sri Lankan authorities as well as documentation that addressed prospective risk. In assessing the documentation that supported the Ap- plicant’s position, the Delegate does say a number of things that can be questioned. However, when reviewed in the context of the whole risk assessment, I do not think they render that assessment unreasonable or procedurally unfair. 191 For example, in her treatment of the Amnesty International Report supporting the Applicant’s position on prospective risk, the Delegate has the following to say: I note that the person at the Toronto office who prepared the letter, a Ms. Gloria Nafziger, did not provide any credentials to support her analysis, other than being an employee of Amnesty International in Toronto and that she “consulted human rights information regarding Sri Lanka.” None of the author’s sources were provided. I also note that it is unclear how much of the record before me was reviewed by Ms. Nafziger before coming to this conclusion. 192 The Applicant says that Ms. Nafziger’s credentials are irrelevant because she is not giving her personal opinion and is relaying the opinion that Amnesty International itself has taken on the risks that he faces if returned to Sri Lanka. I think, however, that this misses the principal point that the Delegate is making. 193 The Delegate does not dismiss the Amnesty International Report; she merely assesses what she regards as its shortcomings in order to decide what weight it should be given. In my view, the point is that the Amnesty International Report cannot be accepted as conclusive because full sources are not cited, it is not clear how much Amnesty International knows about the full record on the Applicant that is available to the Dele- 116 IMMIGRATION LAW REPORTER 7 Imm. L.R. (4th)

gate, and it is not clear how the opinion was compiled. Further, Ms. Nafziger’s role in the process is not clear, hence the concern about her credentials. I see nothing unreasonable in this assessment and, in any event, it has to be viewed in the context of the whole assessment on risk, not in isolation. 194 Also, as regards the medical evidence, the Applicant complains that it supported his account of what had happened to him in 2009, or was at least neutral. The Delegate’s comments on that evidence are as follows: Thirdly, the medical officer examining Mr. Nagalingam some 10 days after his alleged mistreatment did not make any conclusions in her letter to the High Commissioner as to whether his injuries, apparently slight, were consistent with his narrative of what had transpired. 195 The Applicant says that his injuries were consistent, but all the Dele- gate is saying, in my view, is that she does not have the medical officer’s opinion to confirm this position. I see nothing unreasonable or inaccurate occurring here. In any event, when the whole rationale for the risk assessment is reviewed, I do not think this is a material point. 196 The principal basis for rejecting future risk was the Applicant’s story of what happened to him in 2009, before he returned to Canada. The Delegate was reasonably suspicious of the Applicant’s credibility concerning this event and gave sufficient reasons for doubting him. 197 The Delegate makes this clear when she says that “at a minimum, therefore, I accept that what Mr. Nagalingam states happened to him in January/February 2009, could have happened.” The rest of the analysis assesses risk on the basis of what the Applicant said about what happened to him: Accepting the entirety of Mr. Nagalingam’s statements, the chronol- ogy of events which occurred, therefore, is as follows: 1. December 2005: Mr. Nagalingam is returned to Sri Lanka as a criminal deportee and is greeted at the airport with an interrogation involving questioning on his involvement in the LTTE. His interrogators had copies of news articles about Mr. Nagalingam. He was not mistreated at that time, but as a letter from the CID in 2008 indicates the CID was satisfied at that time that Mr. Nagalingam admitted being a member of the LTTE via his affiliation with the AK Kannan. He was released. 2. August 2008: Apparently in reply to an enquiry from the Ca- nadian High Commission (CHC), the CID sent a letter to the CHC indicating that Mr. Nagalingam is not a member of the Vambottas gang - apparently a Sri Lankan gang. Nagalingam v. Canada (MCI) James Russell J. 117

3. January/February 2009: Mr. Nagalingam was picked up by security forces and mistreated at a detention center based on a “tip”. According to Mr. Nagalingam’s affidavit when the officials keeping him in detention checked with officials at the airport and found that Mr. Nagalingam’s story was consistent they decided to let him go and apologized. According to the CAIPS notes, at that point, they no longer believed he had an affiliation to the LTTE. According to Professor Good’s reports, record keeping by security officials in Sri Lanka is remarkably solid when it comes to information on detentions/interrogations. Therefore, given the grilling that Mr. Nagalingam has had in the past upon arrival in 2005, and after he was picked-up “on a tip” in 2009, and the fact that he was released after questioning it appears Mr. Nagalingam is not presently of interest to authorities. I therefore find that while authorities would be likely to have an extensive dossier on Mr. Nagalingam that at this point in time there is little to indicate that they would have any continued interest in him, particularly as there is no evidence before me that he ever held a high-level position in the LTTE or that he ever worked as an expatriate fundraiser for the LTTE during his time in Canada, through his involvement in the AK Kannan. Conclusion on section 97 risks: For all of the afore stated reasons, I am satisfied on a balance of probabilities that Mr. Nagalingam is not likely to face personalized risks as identified in section 97 of IRPA - namely that he is unlikely to be tortured, face cruel or unusual treatment or be killed if returned to Sri Lanka. 198 In his reports, Professor Good expresses the opinion that the Appli- cant will be picked up by the Sri Lankan authorities and tortured. But, as the Decision makes clear, this opinion is belied by the Applicant’s own account. The Applicant says that the Sri Lankan authorities picked him up in 2009 and tortured him, but let him go on the basis of what he told them about himself and what they were told by officials at the airport. The authorities even went so far as to apologize to him. Given that the CID believed in 2008 that he was an LTTE member, it hardly makes sense that Sri Lankan authorities would release him and apologize in 2009, if they continued to think he was an LTTE member or had any further interest in detaining and torturing him. I think this is the essence of the Delegate’s risk assessment and, based upon the evidence before her, I cannot say it was unreasonable or procedurally unfair in any way. 199 As well as assessing risk, the Delegate also had to balance the degree of risk against the nature and severity of the acts committed by the Ap- 118 IMMIGRATION LAW REPORTER 7 Imm. L.R. (4th)

plicant. Because of the procedural fairness issues noted earlier, this balancing aspect is necessarily flawed because the Applicant was not given the opportunity to test the evidence supporting the Delegate’s conclusions on the nature and severity of his criminal acts in so far as those conclusions were based upon the sworn evidence and opinions of Detec- tive Fernandes.

Conclusions 200 As far as I can determine, the only reviewable error I can find with the Decision is the procedural fairness issue identified above. In my view, however, this is a significant error that requires the matter to be returned for reconsideration by a different delegate. The Federal Court of Appeal in Nagalingam made it clear that, in the context of a delegate’s opinion, the discretion under subsection 115(2) of the Act must be exercised in accordance with, inter alia, the principles of administrative law. In this case, there is no indication from the Delegate that she even considered whether cross-examination of Detective Fernandes was required to ensure procedural fairness. She certainly provided no reasons on point, or explained to the Applicant why his request was not allowed or why procedural fairness in this case did not require cross-examination.

Judgment THIS COURT’S JUDGMENT is that 1. The application is allowed. The Decision is quashed and the matter is returned for reconsideration by a different Minister’s delegate. 2. There is no question for certification. Application granted. Singh v. Canada (Minister of Citizenship & Immigration) 119

[Indexed as: Singh v. Canada (Minister of Citizenship & Immigration)] Hardeep Singh, Applicant and Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-1595-11 2012 FC 23 Yvon Pinard J. Heard: December 20, 2011 Judgment: January 10, 2012 Immigration and citizenship –––– Admission — Immigrants — Family class — Members of family class — Validity of marriage –––– Applicant was Indian citizen who claimed Convention refugee status — Applicant divorced his first wife and began relationship with another woman, K, who was 17 years his junior — K obtained permanent residence — Applicant married K — Appli- cant’s Pre-Removal Risk Assessment application was refused and he was ordered deported — Applicant failed to appear — Applicant brought application for permanent residence in spousal class — Application was dismissed — Of- ficer found that relationship was not genuine — Applicant brought application for judicial review — Application granted — Officer erred in his assessment of genuineness of applicant’s marriage, not by failing to consider documentary evidence, but by calling it complementary — Officer considered applicant’s explanations for inconsistencies but failed to explain why he did not accept them — Officer’s decision on marriage being not genuine was based on eight responses from applicant and his wife and none of discrepancies were significant — Of- ficer’s reasons did not explain his reasoning — Answers that officer relied on to find that marriage was not genuine did not support that finding — Officer’s decision was not intelligible or justifiable and lacked transparency — As such, decision was outside range of reasonable possibilities. Immigration and citizenship –––– Admission — Appeals and judicial review — Judicial review — Miscellaneous –––– Applicant was Indian citizen who claimed Convention refugee status — Applicant divorced his first wife and began relationship with another woman, K, who was 17 years his junior — K obtained permanent residence — Applicant married K — Applicant’s Pre-Re- moval Risk Assessment application was refused and he was ordered deported — Applicant failed to appear — Applicant brought application for permanent residence in spousal class — Application was dismissed — Officer found that relationship was not genuine — Applicant brought application for judicial review — Application granted — Officer erred in his assessment of genuineness of appli- 120 IMMIGRATION LAW REPORTER 7 Imm. L.R. (4th)

cant’s marriage, not by failing to consider documentary evidence, but by calling it complementary — Officer’s decision was not intelligible or justifiable and lacked transparency — There was no need for court to exercise its discretion to not hear applicant’s application and to dismiss it outright — Applicant failed to show for his removal order and made inaccurate representations but that did not justify use of court’s discretion — There was no outstanding warrant for applicant and he had remedied his misconduct by turning himself in after warrant had been issued — Applicant’s immigration history was referenced in decision even though it was genuineness of marriage that was before officer. Cases considered by Yvon Pinard J.: Canada (Minister of Citizenship & Immigration) v. Tirer (2010), 2010 Car- swellNat 2899, 2010 CF 414, 2010 FC 414, 2010 CarswellNat 1110 (F.C.) — referred to Carrillo v. Canada (Minister of Citizenship & Immigration) (2004), 2004 Car- swellNat 1025, 2004 FC 548, 2004 CarswellNat 2527, 2004 CF 548, [2004] F.C.J. No. 673 (F.C.) — referred to Chen v. Canada (Minister of Citizenship & Immigration) (2011), 2011 Car- swellNat 4568, 2011 FC 1268, 2011 CF 1268, 2011 CarswellNat 5344 (F.C.) — referred to Escobar Valencia v. Canada (Minister of Citizenship & Immigration) (2011), 2011 CF 787, 2011 FC 787, 2011 CarswellNat 2435, 2011 CarswellNat 3464 (F.C.) — referred to Essaidi c. Canada (Ministre de la Citoyennet´e & de l’Immigration) (2011), 2011 CarswellNat 1080, 2011 CF 411, 2011 FC 411, 2011 CarswellNat 1876 (F.C.) — referred to Froment c. Canada (Ministre de la Citoyennet´e & de l’Immigration) (2006), 2006 CarswellNat 5316, 2006 FC 1002, 2006 CarswellNat 2657, 2006 CF 1002, (sub nom. Froment v. Canada (Minister of Citizenship & Immigra- tion)) 299 F.T.R. 70 (Eng.), [2006] F.C.J. No. 1273 (F.C.) — referred to Garcia v. Canada (Minister of Citizenship & Immigration) (2009), 2009 FC 1241, 2009 CarswellNat 4167, 86 Imm. L.R. (3d) 8, 2009 CF 1241, 2009 CarswellNat 5349 (F.C.) — considered Kaur v. Canada (Minister of Citizenship & Immigration) (2010), 2010 Car- swellNat 1049, 2010 FC 417, 2010 CarswellNat 2072, 2010 CF 417, [2010] F.C.J. No. 487 (F.C.) — referred to Khosa v. Canada (Minister of Citizenship & Immigration) (2009), 82 Admin. L.R. (4th) 1, 2009 SCC 12, 2009 CarswellNat 434, 2009 CarswellNat 435, 304 D.L.R. (4th) 1, 77 Imm. L.R. (3d) 1, 385 N.R. 206, (sub nom. Canada (Citizenship & Immigration) v. Khosa) [2009] 1 S.C.R. 339, [2009] S.C.J. No. 12 (S.C.C.) — referred to Miranda v. Canada (Minister of Employment & Immigration) (1993), 1993 Car- swellNat 1298, 63 F.T.R. 81, [1993] F.C.J. No. 437 (Fed. T.D.) — referred to Singh v. Canada (Minister of Citizenship & Immigration) 121

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 Paul v. Canada (Minister of Citizenship & Immigration) (2011), 96 Imm. L.R. (3d) 325, 2011 CarswellNat 264, 2011 FC 135, 2011 CarswellNat 1247, 2011 CF 135, 384 F.T.R. 15 (Eng.) (F.C.) — considered Sharma v. Canada (Minister of Citizenship & Immigration) (2009), 2009 Car- swellNat 4202, 2009 FC 1131, 2009 CF 1131, 2009 CarswellNat 5133, [2009] F.C.J. No. 1595 (F.C.) — referred to Terigho v. Canada (Minister of Citizenship & Immigration) (2006), 2006 FC 835, 2006 CarswellNat 1901, 2006 CarswellNat 3402, 2006 CF 835, [2006] F.C.J. No. 1061 (F.C.) — distinguished Wiesehahan v. Canada (Minister of Citizenship & Immigration) (2011), 2011 FC 656, 2011 CarswellNat 2102 (F.C.) — referred to Wong c. Canada (Ministre de la Citoyennet´e & de l’immigration) (2010), 2010 CF 569, 2010 CarswellNat 1554, 2010 FC 569, 2010 CarswellNat 2386, [2010] A.C.F. No. 668, [2010] F.C.J. No. 668 (F.C.) — distinguished Yadav v. Canada (Minister of Citizenship & Immigration) (2010), 2010 CF 140, 2010 CarswellNat 3619, 8 Admin. L.R. (5th) 86, 2010 CarswellNat 644, 2010 FC 140, 370 F.T.R. 174 (Eng.), [2010] F.C.J. No. 353 (F.C.) — referred to Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Generally — referred to s. 72(1) — pursuant to Regulations considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Immigration and Refugee Protection Regulations, SOR/2002-227 s. 4(1) — considered s. 124 — considered

APPLICATION for judicial review.

Me Mark J. Gruszczynski, for Applicant Me S´ebastien Dasylva, for Respondent 122 IMMIGRATION LAW REPORTER 7 Imm. L.R. (4th)

Yvon Pinard J.:

1 On March 10, 2011, Hardeep Singh (the “applicant”) filed the present application for judicial review of the decision of Manoula Soumahoro, immigration officer for Citizenship and Immigration Canada (the “officer”), pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the “Act”). The officer refused the applicant’s application for permanent residence under the spousal class, doubting the genuineness of his marriage. 2 The applicant is a citizen of India who arrived in Canada on February 2, 2006. On March 14, 2006, he claimed refugee status. On September 8, 2006, the applicant divorced his wife who at the time was living in the United States. 3 In February 2007, the applicant claims to have met his second and current spouse, Amarjit Kaur, there being a seventeen year age difference between the two. In April 2007, Mrs. Kaur obtained Canadian citizenship. In April of the following year, the applicant’s claim for refugee status was denied. 4 On August 9, 2008, the couple got married, this being Mrs. Kaur’s third marriage. As of this day, the couple claims they began to live together. 5 On November 7, 2008, the applicant was informed of his eligibility for a Pre-Removal Risk Assessment (“PRRA”), which was ultimately denied on March 15, 2010. On April 1, 2009, the applicant applied for permanent residence under the spousal class. 6 The applicant’s PRRA claim being denied, his removal was set for May 21, 2010. However, the applicant did not report for his removal, now claiming in his Reply that he could not leave his wife alone and was awaiting the processing of his permanent residence application. Conse- quently, on May 31, 2010, a warrant was put out for his arrest. On Febru- ary 17, 2011, the applicant turned himself in at Citizenship and Immigra- tion Canada headquarters. 7 On February 21, 2011, the applicant and his spouse were separately interviewed by the officer with respect to the applicant’s permanent residence application, in order to determine whether the requirements of section 124 of the Immigration and Refugee Protection Regulations, SOR 2002-227 (the “Regulations”) were met. The couple was asked the same questions and was subsequently confronted with their differing answers, being allowed to clarify these inconsistencies. The applicant’s legal counsel was present at this interview, as was an interpreter. Singh v. Canada (Minister of Citizenship & Immigration) Yvon Pinard J. 123

8 On March 3, 2011, the officer informed the applicant by letter that his application for permanent residence in the spousal class was refused. In his letter, the officer states “[a]fter a careful and sympathetic review of your application, it has been concluded that you do not meet the requirements of the class”; he considered the applicant to be of bad faith pursuant to subsection 4(1) of the Regulations...... 9 Considering the parties’ representations, the issues can be summarized as follows: i. Should this Court exercise its discretion and refuse to consider the applicant’s application for judicial review because the latter does not have clean hands? ii. Did the officer err in his assessment of the genuineness of the applicant’s marriage? .....

i. Should this Court exercise its discretion and refuse to consider the applicant’s application for judicial review because the latter does not have clean hands? 10 The respondent alleges that the applicant does not have clean hands for he made false representations and failed to appear for his removal order. Such misconduct, in his opinion, requires this Court to refuse to consider the present application for judicial review and dismiss the applicant’s application altogether. 11 The respondent also identifies a misrepresentation made initially by the applicant’s wife. In the latter’s solemn declaration, she stated that she had no family, that they had all passed away. The applicant also claimed that his wife’s family passed away, when declaring in a form that they were deceased, in response to whether her family attended the wedding ceremony. However, this alleged misrepresentation was not discussed by the officer. 12 In his Reply, the applicant argues that this Court should proceed and decide on the merits of his application for judicial review. To do otherwise would be an unreasonable exercise of judicial discretion, contrary to the existing jurisprudence on clean hands. 13 I do not believe this to be a case where this Court should exercise its discretion and refuse to hear the applicant’s application for judicial review. Balancing the need to maintain the integrity of administrative and 124 IMMIGRATION LAW REPORTER 7 Imm. L.R. (4th)

judicial processes and prevent the abuses of these processes, and the need to preserve the public interest in the lawful conduct of the government and the protection of human rights, the applicant’s misconduct does not warrant the application of the clean hands doctrine. 14 While the respondent relies on Wong c. Canada (Ministre de la Citoyennet´e & de l’immigration), 2010 FC 569 (F.C.), [Wong] to encourage this Court to consider evidence and information that was not before the officer, nor formed part of the latter’s decision, the precise statement of this Court at paragraph 12 was that: having decided to undertake judicial review, the Court must confine itself to the facts on which the administrative decision was made - except in cases where either the decision-maker’s jurisdiction or the fairness of the administrative procedure is called into question. 15 The applicant is not without blame, failing to report for his removal. He is definitely guilty of misconduct, and contrary to the applicant’s allegations, this Court can take into account the applicant’s immigration history. The officer did not mention the applicant’s immigration history in his decision because he was assessing the genuineness of the applicant’s marriage. His history was irrelevant in making this determination. None- theless, the applicant’s immigration history was summarized in the officer’s notes. Therefore, while the applicant acted in contravention of the immigration laws of Canada, he remedied his misconduct in voluntarily turning himself in after a warrant against him had been issued, as in Paul v. Canada (Minister of Citizenship & Immigration), 2011 FC 135 (F.C.). Unlike in Wong, relied on by the respondent, there is no outstanding warrant against the applicant and he is not in hiding. Thereby, he has not shown a complete disregard for the immigration laws of Canada. For these reasons, his application will be considered on its merits.

ii. Did the officer err in his assessment of the genuineness of the applicant’s marriage? 16 The applicable standard of review to this issue is reasonableness. The genuineness of a marriage is a question of fact (Chen v. Canada (Minister of Citizenship & Immigration), 2011 FC 1268 (F.C.) at para 4; Essaidi c. Canada (Ministre de la Citoyennet´e & de l’Immigration), 2011 FC 411 (F.C.) at para 10 [Essaidi]; Kaur v. Canada (Minister of Citizenship & Immigration), 2010 FC 417 (F.C.) at para 14 [Kaur]; Wiesehahan v. Canada (Minister of Citizenship & Immigration), 2011 FC 656 (F.C.) at para 37; Escobar Valencia v. Canada (Minister of Citizenship & Immigration), 2011 FC 787 (F.C.) at para 15 [Valencia]). Singh v. Canada (Minister of Citizenship & Immigration) Yvon Pinard J. 125

Hence, such determinations are left to the officer, as is the assessment of the evidence (Canada (Minister of Citizenship & Immigration) v. Tirer, 2010 FC 414 (F.C.) at para 11 [Tirer]). 17 Thereby, these factual determinations are to be reviewed on a standard of reasonableness (Khosa v. Canada (Minister of Citizenship & Im- migration), [2009] 1 S.C.R. 339 (S.C.C.); New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190 (S.C.C.) [Dunsmuir]; Yadav v. Canada (Minister of Citizenship & Immigration), 2010 FC 140 (F.C.) at para 50 [Yadav]). As a result, this Court can only intervene if the officer’s determinations, and thereby his decision, are based on erro- neous findings of fact made in a perverse, capricious manner or if made without regard to the material before him (Tirer at para 11). 18 The applicant argues that the officer committed a reviewable error by not considering the documentary evidence, qualifying it as purely “complementary”. Such a qualification, he believes, constitutes a reviewable error, relying on Garcia v. Canada (Minister of Citizenship & Immigra- tion), 2009 FC 1241 (F.C.), in support of his allegations. The applicant further contends that the officer’s justification for his preference for the evidence ascertained during the interview reflects a flawed understanding of the documentary evidence. 19 The respondent argues that the officer’s decision as to a lack of genuineness leading to the rejection of the applicant’s application for permanent residence was justified, being based on a reasonable assessment of the evidence before him. The applicant had the onus of proving the genuineness of his marriage and that it was not entered into for the purpose of acquiring status or privilege under the Act. 20 In determining whether to grant an application for permanent residence as a member of the spousal class, an officer has to determine whether the marriage is genuine and was not entered into primarily for the purpose of acquiring status or privilege under the Act (subsection 4(1) of the Regulations; Kaur at para 15; Yadav at para 54). If the evidence leads the officer to conclude that the marriage is not genuine, it is presumed that such a union was entered into for the purpose of acquiring status in Canada (Kaur at para 16; Sharma v. Canada (Minister of Citizenship & Immigration), 2009 FC 1131 (F.C.) at para 18). 21 The officer’s decision must be assessed as a whole (Valencia at para 25). The officer cannot microscopically analyze the evidence, nor can this Court dissect the officer’s decision (Carrillo v. Canada (Minister of Citizenship & Immigration), 2004 FC 548 (F.C.)). There may always be conflicting evidence and consequently a range of differing conclusions: 126 IMMIGRATION LAW REPORTER 7 Imm. L.R. (4th)

anyone might reach a different conclusion (Miranda v. Canada (Minister of Employment & Immigration) (1993), 63 F.T.R. 81 (Fed. T.D.)). After reading the decision as a whole, it appears that the officer considered the totality of the evidence before him. 22 Unlike in Terigho v. Canada (Minister of Citizenship & Immigra- tion), 2006 FC 835 (F.C.), the officer in the present case did consider and mention the documentary evidence provided by the applicant. However, the officer gave it lesser weight, relying on the inconsistencies at the interview. Moreover, in his decision, the officer also asserted not having been convinced by the applicant’s explanations of these inconsistencies. 23 It was wrong of the officer to refer to the documentary evidence as complementary, for the evidence must be assessed as a whole. But the officer’s use of this qualifier does not in itself render his whole decision unreasonable. While he may have inadequately expressed himself, reading his decision, he does appear to have considered the evidence as a whole. 24 This Court should be hesitant to transpose the holdings from other cases, for the issue of genuineness is very fact driven. In this case, the officer took issue with eight questions out of thirty-nine. Were these inconsistencies significant enough for him to conclude a lack of genuineness based solely on these inconsistencies, considering the documentary evidence was accepted as “solid”? I do not think they were. They do not reveal little knowledge of each other or a sham. The wife forgot to mention they ate lentils: it seems reasonable that this oversight was because they eat lentils every day, as explained by the applicant. Neither can identify by name the roads surrounding the apartment, but can they recol- lect street names period? The applicant’s wife seems to have trouble with locations in general, not being able to identify where her temple is located. However, the discrepancies as to the description of their apartment are somewhat more concerning. But can this alone justify a finding of lack of genuineness based on a balance of probabilities (Essaidi at para 21; Froment c. Canada (Ministre de la Citoyennet´e & de l’Immigration), 2006 FC 1002 (F.C.) at para 19)? Perhaps if the officer had specifically addressed the applicant’s justifications. However, he only states that he does not consider them convincing, without further explanation. His reasoning is not clear. 25 Thus, while the assessment of the evidence is left to the officer and deference is owed to his factual determinations, I do not think his decision is intelligible, nor justifiable, lacking transparency, and thereby falling outside the “range of possible, acceptable outcomes which are defen- Singh v. Canada (Minister of Citizenship & Immigration) Yvon Pinard J. 127

sible in respect of the facts and law” (Dunsmuir at para 47). I do not think the officer’s decision as to a lack of genuineness was reasonable: the officer does not explain why he rejected the applicant’s explanations, certain of the targeted inconsistencies are minor and the documentary evidence was accepted but considered “complementary”...... 26 For the above-mentioned reasons, the application for judicial review is allowed and the matter is sent back to a different officer for new consideration and determination.

Judgment The application for judicial review of the decision of Manoula Soumahoro, immigration officer for Citizenship and Immigration Can- ada, pursuant to subsection 72(1) of the Immigration and Refugee Pro- tection Act, S.C. 2001, c. 27, is allowed. The matter is sent back to a different officer for reconsideration and redetermination. Application granted. 128 IMMIGRATION LAW REPORTER 7 Imm. L.R. (4th)

[Indexed as: Teganya v. Canada (Minister of Citizenship & Immigration)] Jean Leonard Teganya, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-3798-11 2012 FC 42 Roger T. Hughes J. Heard: January 10, 2012 Judgment: January 12, 2012 Immigration and citizenship –––– Refugee protection — Removal — Pre- Removal Risk Assessment (PRRA) — Factors to be considered — Miscella- neous –––– Applicant JT was adult male citizen of Rwanda — In November 1999, he entered Canada and claimed refugee status — He was excluded from refugee protection in 2002; matter was sent back by consent order of court — He was again excluded in 2005 — In 2010, applicant received negative pre-removal risk assessment (“PRRA”) decision; that decision was upheld by court in March 2011 — Applicant submitted second PRRA application, which was denied in decision dated June 11, 2011 — Applicant brought application for judicial review of that decision — Application granted — Decision was to be set aside and reconsidered by different officer — Officer’s dismissal of evidence was unreasonable — Affidavit must be considered for what it did say — Not every piece of evidence must be directed to every specific point in issue — Party must be allowed to build its case; certain parts were background, other parts filled in gaps — Evidence as whole was to be considered. Immigration and citizenship –––– Refugee protection — Practice and procedure in refugee claims — Judicial review — Natural justice — General principles –––– Applicant JT was adult male citizen of Rwanda — In November 1999, he entered Canada and claimed refugee status — He was excluded from refugee protection in 2002; matter was sent back by consent order of court — He was again excluded in 2005 — In 2010, applicant received negative pre-removal risk assessment (“PRRA”) decision; that decision was upheld by court in March 2011 — Applicant submitted second PRRA application, which was denied in decision dated June 11, 2011 — Applicant brought application for judicial review of that decision — Application granted — Decision was to be set aside and reconsidered by different officer — Officer’s dismissal of evidence was unreasonable — Affidavit must be considered for what it did say — Not every piece of evidence must be directed to every specific point in issue — Party Teganya v. Canada (MCI) Roger T. Hughes J. 129

must be allowed to build its case; certain parts were background, other parts filled in gaps — Evidence as whole was to be considered. Cases considered by Roger T. Hughes J.: Li v. Canada (Minister of Citizenship & Immigration) (2005), 2005 CarswellNat 1128, 249 D.L.R. (4th) 306, 2005 CAF 1, 329 N.R. 346, 41 Imm. L.R. (3d) 157, 2005 CarswellNat 30, 2005 FCA 1, [2005] 3 F.C.R. 239, [2005] F.C.J. No. 1 (F.C.A.) — followed

APPLICATION by applicant for judicial review of decision which dismissed second pre-removal risk assessment application.

Jackie Swaisland, for Applicant Leila Jawando, Julie Waldman, for Respondent

Roger T. Hughes J.:

1 The Applicant Jean Leonard Teganya is an adult male citizen of Rwanda. In November 1999 he entered Canada and claimed refugee status. He was excluded from refugee protection in 2002, the matter was sent back by a consent Order of this Court. He was again excluded in 2005. This Court upheld that decision. In 2010 the Applicant received a negative PRRA decision, that decision was upheld by this Court in March 2011. The Applicant submitted a second PRRA application which was denied in a decision dated June 11, 2011. This is a judicial review of the June 11, 2011 decision. 2 For the reasons that follow I find that the application is allowed. 3 The Applicant is the eldest of a family of four children. The Appli- cant was a medical student in a Rwandan hospital. He and other members of his family fled Rwanda in 1994 during the period when a civil war going on there. They fled first to the Congo, he then fled to Kenya and then to India. While in India the Applicant continued his studies. The Applicant’s father meanwhile, returned to Rwanda where he was arrested and detained for considerable period in prison then was tried and convicted of crimes relating to genocide. His father remains in prison in Rwanda serving a 22 year sentence. 4 The Applicant believed that he could not, as a student, seek asylum in India. He feared returning to Rwanda, believing that he, as the son of his father who was convicted, would be arrested and, even if ultimately tried and found not to be guilty, the period of imprisonment before trial, which he believed may be a long period, would, in his belief subject him to torture and punishment in any event. It is to be noted that of all his sib- 130 IMMIGRATION LAW REPORTER 7 Imm. L.R. (4th)

lings only the applicant bears his father’s surname a matter that the Ap- plicant believes makes him particularly vulnerable to arrest in Rwanda. 5 In support of his second PRRA application resulting in the decision under review, the Applicant, through Counsel, submitted a number of documents including: a. Newspaper reports, including those from Canada and Rwanda specifically naming the Applicant; b. Numerous documents respecting current country conditions in Rwanda; c. Two expert reports from individuals knowledgeable as to country conditions in Rwanda; d. An affidavit from a formerly friend who had lived in Rwanda; e. An affidavit from a Rwandan lawyer respecting the conviction of the Applicant’s father and the unavailability to communicate with him while he is in prison. 6 The PRRA Officer gave little weight to much of this evidence and concluded: Suite a` l’analyse du dossier, ainsi que de la preuve objective sur les conditions du pays, j’estime que le demandeur n’a pas démontré qu’il pourrait etreˆ a` risque au Rwanda. La demande est refusée. 7 The Officer did not request a hearing. 8 Counsel for both parties at the hearing before me agreed that the standard of review of the Officer’s decision is reasonableness. They also agreed that the question that the Officer had to address can be stated as: based on an assessment of the evidence, on a balance of probabilities, would the Applicant be subjected personally to a risk to his life or to a risk of cruel and unusual treatment or punishment if he was required to return to Rwanda. It is to be noted that the test is a “risk” and not a “certainty” and that the risk is to be assessed on a balance of probabilities. The decision of Rothstein J.A. (as he then was) in Li v. Canada (Minister of Citizenship & Immigration), 2005 FCA 1 (F.C.A.), supports this view. He wrote at paragraphs 12 to 14: 12. McGuigan J.A. adopted the “reasonable chance [of] persecution” test as the legal test to meet to obtain Convention refugee status, i.e. not necessarily more than a 50 percent chance but more than a mini- mal possibility of persecution. Teganya v. Canada (MCI) Roger T. Hughes J. 131

13. The certified question deals with subsection 97(1). The relevant portions of subsection 97(1) provide: 97. (1) A person in need of protection is a person in Can- ada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally (a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or (b) to a risk to their life or to a risk of cruel and unusual treatment or punishment .... 14. As was found by McGuigan J.A. to be the case with respect to section 96, nothing in subsection 97(1) suggests that the standard of proof to be applied in assessing the danger or risk described in paragraphs 97(1)(a) and (b) is anything other than the usual balance of probabilities standard of proof. The answer to the first certified question is therefore: The standard of proof for purposes of section 97 is proof on a balance of probabilities. 9 The risk alleged by the Applicant is set out as follows at page 3 of the Officer’s reasons: RISQUES ALLEGU´ ES´ Dans la présente demande ERAR subséquente, le demandeur réitère en partie les risques invoqués dans sa demande ERAR initiale. Ceux-ci etaient´ a` l’effet que son père etait´ soup¸conné d’une implica- tion dans le génocide rwandais et qu’à ce titre il ne pourrait bénéficier d’un procès equitable.´ Le demandeur soulignait que sa situation serait la même etant´ donné qu’il est le fis de son père. Il soulignait ses origines ethniques hutues ainsi que la possibilité qu’il soit considéré comme opposant au régime actuel. Dans la présente demande, il souligne un risque etant´ donné l’association de son père avec le MRND. Il précise que son père aurait et´´ e arrêté et emprisonné au moment du retour de la famille au Rwanda en 1997. Il ajoute qu’après une détention préventive de 7 ans, son père aurait et´´ e condamné a` 22 ans d’emprisonnement. Monsieur rapporte qu’étant donné la situation de son père, mais egalement´ parce qu’il est le premier né et porte le même nom de famille que celui-ci, il serait a` risque de traitements cruels et inusités. Il allègue egalement´ qu’étant donné la parution d’articles dans les médias concernant la décision de la Cour fédérale de maintenir la 132 IMMIGRATION LAW REPORTER 7 Imm. L.R. (4th)

décision de la CISR et du premier ERAR, les autorités rwandaises auraient et´´ e informées de la demande d’asile de monsieur ainsi que le fait qu’il soit reconnu complice du génocide. Il souligne qu’étant donné cette situation, il est maintenant un réfugié sur place et qu’il serait aussitôt arrêté advenant un retour au Rwanda. Il rapporte qu’il pourrait etreˆ détenu pour une longue période et de fa¸con arbitraire, puis, jugé devant un tribunal Gacaca, lesquels auraient et´´ e largement critiqués sur une base internationale puisqu’ils ne rencontraient pas les critères internationaux de procédure en plus d’une certaine forme de corruption. Il mentionne qu’il ne pourrait obtenir un procès juste et equitable´ au Rwanda etant´ donné qu’on le considérerait comme complice du génocide. 10 The first document considered by the Officer in evaluating risk was a newspaper article published in Rwanda. It is important to repeat that article in full: RWANDA: GENOCIDE Suspect Faces Deportation From Canada James Karuhanga 31 March 2011 Reports from Canada indicate that following a ruling this month, a court found that Jean Leonard Teganya, a Genocide suspect, could be deported to Rwanda. Teganya was an intern at Butare University Hospital in April, 1994, where militia killed nearly 200 Tutsi patients and staff at the hospital. When contacted yesterday, Prosecutor General Martin Ngoga said it was a positive step. “Much as it is a matter still within Canadian jurisdiction, and subject to further appeal, it is a positive step in our collective endeavor as community of nations to deal with every detail that would help bring perpetrators of Genocide to justice and deny them safe haven any- where in the world,” Ngoga said. Agnes Murekatete, a Genocide survivor, said that it is unfair that sus- pects like Teganya remain at large. “I just feel that life is so unfair. Many of those who made me and others orphans, many of those who killed our relatives in cold blood are sheltered all over the world.” “I have no option but to forgive, yet the continued genocide denial fills me with sorrow. And they are all out there, everywhere, she said.” At the University Hospital, in 1994, it was reported that nurses compiled lists of patients and staff to be killed, while doctors refused to Teganya v. Canada (MCI) Roger T. Hughes J. 133

treat Tutsi patients or kicked them out of the hospital where the Inter- ahamwe militiamen were waiting. Teganya’s father was a regional lader of the extremist Mouvement Révolutionaire National pour le Développement (MRND) party. In 2002, Canada’s Immigration and Refugee Board asked Teganya why he wasn’t killed at the hospital, and whether that meant militiamen identified him as someone sympathetic to their cause. 11 The Officer dismissed this article in saying that it does not say that charges would be laid against the Applicant or that the Applicant is charged in Rwanda: Je constate que le demandeur ne présente pas de document démon- trant que le procureur général aurait porté des accusations spécifiques a` son endroit. D’ailleurs, le demandeur ne démontre pas avoir et´´ e accusé au Rwanda. Cela dit, si des accusations etaient´ déposées, le demandeur pourrait devoir subir un procès. 12 This determination as to a critical piece of evidence is unreasonable. First, it is not necessary to show that charges will be laid but only that there is a risk. Clearly that is evident. Secondly, the Applicant’s fear is prolonged detention prior to a trial, during which there is a risk of cruel and unusual punishment. Rarely does one see in cases of this kind such clear evidence of risk personally directed against an Applicant. 13 Applicant’s Counsel argued that, in the next portion of the Reasons the Officer made only a selected reference to the documents in the record and that many documents addressing conditions of prolonged detention before charges are laid and torture during such detention are ignored. I agree that a more thorough analysis of all aspects of the issues presented in these documents will be warranted at a subsequent determination. However, if the only issue were the treatment of these documents I would not have found the determination to be unreasonable. 14 I find unreasonable, in addition to the treatment of the newspaper article the treatment by the Officer of the evidence of many individuals presented on behalf of the Applicant. The Officer appears to have been dog- gedly determined to find reasons, however slight, to dismiss or give little weight to these documents instead of considering what evidence and expert opinions they do present and giving proper weight to them. It must be remembered that the evidence is unrebutted. The Officer had on the other hand only country condition documents that were more or less weighted both scales of thee issues. It was incumbent upon the Officer to give full attention to what is set out in these documents. 134 IMMIGRATION LAW REPORTER 7 Imm. L.R. (4th)

15 The first document considered in the reasons is a declaration of Noel Twagiranungu who holds a BA from the National University of Rwanda, an LLB from Utrecht University and is a PhD candidate at the Fletcher School of Law at Tufts University. He gave a detailed history of the civil strife in Rwanda and is knowledgeable in criminal procedures and mo- dalities of prosecution and punishment in Rwanda. He concludes that the Applicant’s fear of seeing his basic rights to a free and fair trial denied and his life endangered were he to be returned to Rwanda to be credible and reasonable. 16 The Officer unreasonably and without giving any basis for the conclusion reached stated that this evidence is a personal interpretation and partisan: Bien que certains des ev`´ enements mentionnés soient rapportés par d’autres sources fiables, je considère que l’information rapportée n’est pas neutre et objective. Pour ces raisons, je considère que ce document reflète une idéologie spécifique et partisane. Je constate que les conclusions de ce document sont une interpréta- tion personnelle de certaines lois du Rwanda. 17 There is simply no basis in the reasons for these conclusions. 18 Next the Officer considered the Statement of Dr. Susan M. Thomson. She is an assistant professional of Contemporary African Politics at Hamphire College, Amherst, MA. Among other notable things she is Anmesty International’s country advisor for Rwanda and Burundi. She provides an extensive review of country conditions in Rwanda and provides a number of conclusions including that among Rwandans are cir- cumscribed in their actions. 19 The Officer unreasonably dismisses this report as not being supported by objective and independent sources and lacking corroboration and that it fails to mention the Applicant specifically: Bien que je reconnaisse la formation de l’auteure, je constate que le document en question est une opinion qui n’est pas soutenue, dans le document, par des sources objectives et indépendantes. D’ailleurs, certains propos mentionnés par l’auteure ne sont pas cor- roborés par des documents de sources neutres et indépendantes. Je considère que ce document ne mentionne pas la situation particu- lière du demandeur et ne démontre pas que le demandeur pourrait etreˆ a` risque etant´ donné un retour au Rwanda. 20 The Officer’s findings are unreasonable. It is not necessary that opinions expressed by an expert such as this be footnoted or filled with refer- Teganya v. Canada (MCI) Roger T. Hughes J. 135

ences to this source or that. It is a statement, not a scholarly research article. Further, it is not necessary that the Applicant’s situation be addressed specifically in every piece of evidence. This statement serves as a background for other, more specific, evidence. 21 The next piece of evidence from an individual that was addressed by the Officer is the affidavit of Venant Munyantwari. He is a friend of the family of the Applicant, now resident in the United States. He appeared as a witness in the trial of the Applicant’s father. He attested that since the Applicant has the same last name as his father he possibly could have the same problems suffered by his father. 22 The Officer irrationally and unreasonably dismissed this evidence because the Officer did not know how Mr. Munyantwari was found and that it was simply a letter of convenience: J’ignore egalement´ comme le demandeur a retrouvé le signataire aux Etats-Unis.´ Etant´ donné ce qui précède, mais egalement´ parce que je considère qu’il s’agit d’une lettre de complaisance, je n’accorde que peu de poids a` ce document. 23 It is immaterial how this person was located. Evidence from friends is frequently tendered in proceedings such as this. This affidavit cannot be dismissed as it was. 24 The last significant piece of evidence from an individual is an affidavit from a Rwandan lawyer, Eric Cyaga. That affidavit speaks to the trial of the Applicant’s father, his prolonged detention before trial (10 years) and that contact now with the father is impossible. The Officer dismisses the affidavit on the basis that it does not address certain issues specific to the Applicant: De plus, bien que ce document en question mentionne que le père de monsieur a et´´ e condamné a` 22 ans de prison, il ne permet pas de conclure a` la présence de risques pour le demandeur. Ce dernier rapporte des frères et sœurs au Rwanda pour lesquels il ne précise ni incarcération, ni arrestation. Il n’explique pas non plus en quoi le fait d’être le fils de son père pourrait lui causer des risques au Rwanda etant´ donné le défaut de monsieur de démontrer que sa fra- trie aurait, depuis cette condamnation, rencontré des difficultés de la part des autorités qui pourraient conduire a` une incarcération. Je considère, donc, que ce document ne permet pas de conclure que le demandeur pourrait etreˆ incarcéré ou accusé advenant un retour au Rwanda, ni qu’il pourrait etreˆ a` risque dans son pays d’origine. 25 This dismissal is unreasonable. The affidavit must be considered for what it does say. Not every piece of evidence must be directed to every 136 IMMIGRATION LAW REPORTER 7 Imm. L.R. (4th)

specific point in issue. A party must be allowed to build its case, certain parts are background, other parts fill in gaps. The evidence as a whole is to be considered. No piece should be dismissed simply because it is a piece. 26 The Officer reviewed certain other pieces of documentary evidence submitted on behalf of the Applicant. I will not review this in detail. Suf- fice it to say that all the documentary evidence should be considered by a different person with a fresh mind. It is most desirable that a hearing should be held. 27 In conclusion, I find that the manner in which the Officer treated critical pieces of evidence is unreasonable, hence the conclusion must be considered unreasonable. The decision is to be set aside and reconsidered by a different Officer, preferably with a hearing. 28 The matter is fact specific, no party requested a certified question. None will be certified.

Judgment FOR THE REASONS PROVIDED THIS COURT’S JUDGMENT is that: 1. The Application is allowed; 2. The matter is returned for redetermination by a different Officer; 3. There is no question for certification; 4. No Order as to costs. Application granted. Morales v. Canada (MCI) 137

[Indexed as: Morales v. Canada (Minister of Citizenship & Immigration)] Hugo Henry Pabon Morales, Nancy Alvarez Parra, Amalia Pabon Alvarez, Sofia Pabon Alvarez, Selene Pabon Alvarez, Applicants and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-7216-10 2012 FC 49 Sandra J. Simpson J. Heard: June 28, 2011 Judgment: January 13, 2012 Immigration and citizenship –––– Refugee protection — Removal — Pre- Removal Risk Assessment (PRRA) — Factors to be considered — New evidence –––– Applicants were Colombian family who feared revolutionary armed forces of Colombia (FARC) — Father was former detective with Colombia’s administrative department of security — In 2003, father investigated bombing and determined that FARC was responsible — Father was unexpectedly trans- ferred to another office and began to fear that FARC had been behind transfer — In July 2003, applicants received two phone calls, second of which was threatening — Applicants fled Colombia, and on April 7, 2008, they came to Canada — Applicants brought unsuccessful claim for refugee protection — Applicants filed pre-removal risk assessment (PRRA) application and submitted two new documents — First document said that internal flight or relocation alternative was generally not available in Colombia and listed policemen under main groups at risk — Second document endorsed first document — Officer refused applicants’ PRRA application — Applicants brought application for judicial review — Application granted — New evidence included information about risks faced by similarly situated individuals such as former police officers who investigated criminal conduct of illegal groups — PRRA officer was obliged to consider evidence in that light — Officer failed to do so. Cases considered by Sandra J. Simpson J.: Raza v. Canada (Minister of Citizenship & Immigration) (2007), 2007 Car- swellNat 4905, 2007 FCA 385, 68 Admin. L.R. (4th) 225, 2007 CarswellNat 6368, 2007 CAF 385, 370 N.R. 344, 289 D.L.R. (4th) 675, [2007] F.C.J. No. 1632 (F.C.A.) — considered 138 IMMIGRATION LAW REPORTER 7 Imm. L.R. (4th)

Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 72(1) — pursuant to s. 74 — referred to s. 96 — considered s. 97 — considered

APPLICATION for judicial review of officer’s decision refusing applicants’ pre-removal risk assessment application.

D. Clifford Luyt, for Applicants Suranjaran Bhattacharyya, for Respondent

Sandra J. Simpson J.: Proceeding 1 Hugo Henry Pabon Morales, Nancy Alvarez Parra, Amalia Pabon Arvarez, Sofia Pabon Alvarez and Selene Pabon Alvarez [the Appli- cants], seek judicial review pursuant to subsection 72(1) of the Immigra- tion and Refugee Protection Act, SC 2001, c 27 [the Act] of a decision of a Pre-Removal Risk Assessment [PRRA] Officer dated October 26, 2010 wherein the Applicants’ PRRA was refused [the PRRA Decision]. 2 For the following reasons, the application for judicial review will be allowed.

Background 3 The Applicants are a Colombian family who fear the Revolutionary Armed Forces of Colombia [FARC]. The Applicants are two parents, Hugo [the Principal Applicant] and Nancy, and their three minor children. The three minor Applicants were born in the United States and are therefore American citizens as well as Colombians. 4 The Principal Applicant is 35 years old and is a former detective with Colombia’s Administrative Department of Security [the DAS]. In 2003, he investigated a bombing at the Nogal Club and determined that FARC was responsible. 5 During his investigation of the bombing, he was unexpectedly trans- ferred to another office in the Department. Some time thereafter, he learned that the prosecutor on the case had left Colombia suddenly and under suspicious circumstances. The Principal Applicant began to fear that FARC had been behind his transfer and the prosecutor’s flight, so he began to keep a low profile. Morales v. Canada (MCI) Sandra J. Simpson J. 139

6 In July 2003, his family received two phone calls. In the first call, the caller hung up after asking for the Principal Applicant. In the second, the caller claimed to be a member of FARC and warned the Principal Appli- cant that FARC had declared him to be a military target and that he must stop “poking his nose into their business”. The Principal Applicant sus- pects that FARC obtained his unlisted phone number from the DAS. 7 On August 5, 2003, the adult Applicants fled Colombia for the United States and five years later, on April 7, 2008, they came to Canada and claimed refugee protection. 8 On October 22, 2009, the Immigration and Refugee Board [the Board] refused the Applicants’ claim [the Refugee Decision] and leave to apply for judicial review of that Decision was subsequently denied. 9 On June 22, 2010, the Applicants filed their PRRA application under sections 96 and 97 of the Act [the PRRA Application] and on January 24, 2011, a judge of the Federal Court granted the Applicants’ motion for a stay of removal.

The Refugee Decision 10 The Principal Applicant and his family were found not be to convention refugees or persons in need of protection because, in part, the Board found it implausible that the Principal Applicant would be at risk given that his family members, who had remained in Colombia, had not been contacted by the FARC in the eight years since he left Colombia. 11 The Board also concluded that the Applicants had an Internal Flight Alternative [IFA] in Bogota.

The PRRA Decision 12 The Applicants submitted two new documents with their PRRA Ap- plication. Both were prepared after the decision was released of the Refu- gee Decision and included information that would not have been available to the Board. The two documents will be referred to collectively as the New Evidence. 13 The first document in the New Evidence is a report dated May 27, 2010 titled UNHCR Eligibility Guidelines for Assessing International Protection Needs of Asylum Seekers from Colombia [the UNHCR Report]. 14 The UNHCR Report speaks about the possibility of an IFA for individuals fleeing persecution by illegal armed groups and says that it “con- siders an internal flight or relocation alternative is generally not available 140 IMMIGRATION LAW REPORTER 7 Imm. L.R. (4th)

in Colombia...” and recommends that further consideration be given to, among other things, “the reach and ability of the network of the illegal armed groups to trace and target individuals including [in] large cities such as Bogota, Medellin and Cali;” 15 A footnote to this quotation reads as follows: Reportedly, the guerrillas and paramilitary groups often employ highly sophisticated databases and computer networks and are able to trace people even years after their initial search, see Immigration and Refugee Board of Canada, Colombia: Availability of state protection to those who fear harassment threats or violence by armed groups since the election of President Alvaro Uribe V´elez 16 The UNHCR Report lists “Present and Former Members and Sup- porters of one of the Parties to the Conflict” as the first category under the heading “Main Groups at Risk”. Under this heading, it specifically mentions that Colombian policemen and security forces that interfere with the illegal activities of various illegal armed groups or investigate their criminal acts are, along with their families, at risk of deadly attacks and kidnappings. The supporting footnotes for this conclusion include material dated in February 2008, and March and September 2009. 17 The second document in the New Evidence is a letter dated June 29, 2010, from a Refugee Coordinator with the Toronto Office of Amnesty International [the AI Letter]. 18 The AI Letter addresses the possibility of an IFA in Colombia in the following terms and endorses the UNHCR Report. It says: Capacity to pursue victims and Flight Alternatives A recent information note from the immigration and Refugee Board [of Canada] discusses the likelihood and ability of the FARC, ELN or AUC to pursue victims in Colombia.14 The majority of sources consulted in this note are of the opinion that these groups have a capacity to pursue victims throughout Colombia. Amnesty International shares the view that the FARC, ELN and suc- cessor groups to the AUC have the capacity to pursue victims throughout many regions of the country and may do so where the individual is of particular interest to warrant such effort. This is also true for those who have fled the country and return after a period of time. Amnesty International is also of the view that while there have been some military advances against paramilitary and guerrilla groups in Colombia, these advances do not translate into state protection for those who have been targeted by the FARC, ELN or former AUC. Morales v. Canada (MCI) Sandra J. Simpson J. 141

Similarly, UNHCR’s 2010 eligibility guidelines notes the following when assessing internal flight alternatives for individuals fleeing persecution at the hands of non-state agents such as illegal armed groups: ...the reach and ability of the network of the illegal armed groups to trace and target individuals, both in rural areas and in urban centres, including large cities such as Bo- gota, Medellin and Cali 19 Footnote 14 in the above quotation refers to a Canadian Immigration and Refugee Board document dated February 23, 2010.

The PRRA Decision 20 Against this background, the impugned portion of the PRRA Deci- sion reads as follows: The applicants’ remaining submissions include country documentation regarding the human rights situation in Colombia. These documents include current, objective reports such as the 2010 Human Rights Watch report, the 2010 UNHCR Eligibility Guidelines for As- sessing the International Protection Needs of Asylum Seekers from Colombia and the 2010 Amnesty International report. Subsection 161(2) of the IRPA Regulations requires that, “a person who makes written submissions must identify the evidence presented that meets the requirements of paragraph 113(a) of the Act and indicate how that evidence relates to them”. The applicants’ submissions describe the general country conditions in Colombia, and they have not linked this evidence to their personalized, forward-looking risks. It is a well- recognized principle that it is not enough simply to refer to country conditions in general without linking such conditions to the personalized situation of an applicant (Dreta, 2005; Nazaire, 2006). The assessment of the applicants’ potential risk of being persecuted or at risk of harm if they were sent back to their country must be individu- alized. The fact that the documentary evidence shows that the human rights situation in a country is problematic does not necessarily mean there is a risk to a given individual (Ahmad, 2004; Gonulcan, 2004; Rahim, 2005). I am aware that the applicants may fear for their safety in Colombia; however the evidence before me does not support that they face a personalized risk or harm if they were to return. While not determinative, the evidence submitted by the applicants does not lead me to a different conclusion than that of the RPD. Therefore, the determinative issue in this assessment is whether there has been a material change in country conditions in Colombia since the decision of the RPD in October 2009 to the extent that the appli- 142 IMMIGRATION LAW REPORTER 7 Imm. L.R. (4th)

cants would now be Convention refugees or persons in need of protection.

The Issue 21 The Applicants say that, although the PRRA Officer mentioned the New Evidence, he failed to appreciate that it was linked to the Principal Applicant’s circumstances as a former police officer who had been targeted by FARC following an investigation of its illegal activities.

Discussion 22 In Raza v. Canada (Minister of Citizenship & Immigration), 2007 FCA 385, 289 D.L.R. (4th) 675 (F.C.A.), the Federal Court of Appeal held that a PRRA application is to be allowed if, at the time it is made, the applicant meets either the definition of a “Convention refugee” under section 96 of the Act or the definition of a “person in need of protection” under section 97 of the Act. 23 The New Evidence included information about risks faced by similarly situated individuals such as former police officers who investigated the criminal conduct of illegal groups. Accordingly, in my view, the PRRA Officer was obliged to consider it in that light. This, the Officer failed to do.

Certified Question 24 No question was posed for certification under section 74 of the Act.

Judgment THIS COURT’S JUDGMENT is that the application for judicial review will be allowed and the Applicants’ PRAA application is to be reconsidered by a different officer. The Applicants may file fresh material on the reconsideration. Application granted. Arteaga Sarabia v. Canada (MCI) 143

[Indexed as: Arteaga Sarabia v. Canada (Minister of Citizenship & Immigration)] Ramiro Arteaga Sarabia, Erika Aponte Gomez, and Angelica Sofia Arteaga Aponte, Ana Paula Arteaga Aponte, Alejandra Arteaga Aponte, and Erika Arteaga Aponte, by Their Litigation Guardian Ramiro Arteaga Sarabia, Applicants and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-1913-11 2012 FC 29 Donald J. Rennie J. Heard: November 16, 2011 Judgment: January 16, 2012 Immigration and citizenship –––– Refugee protection — Removal — Pre- Removal Risk Assessment (PRRA) — Factors to be considered — New evidence –––– Principal applicant was political official and journalist, he claimed to be target of politically-motivated violence in Mexico — Applicant’s claim for refugee status was denied by Refugee Protection Division (“RPD”) of Immigra- tion and Refugee Board due to credibility concerns, delay in flight and failure to rebut presumption of state protection — Applicant submitted Pre-Removal Risk Assessment (“PRRA”) application — Applicant submitted twelve documents, mostly consisting of country reports, photographs from newspapers and threatening note that father received in July 2010 — Applicant brought application for judicial review of decision by PRRA officer which rejected applicants’ application — Application granted — Matter was referred back to PRRA office for reconsideration before different officer — No evidence that PRRA officer considered photographs and note — Failure to consider material and relevant evidence cannot be saved by reference to general statement that decision maker considered all of evidence — Officer expressly considered all evidence, save two critical pieces of new evidence. Cases considered by Donald J. Rennie J.: Cepeda-Gutierrez v. Canada (Minister of Citizenship & Immigration) (1998), 157 F.T.R. 35, 1998 CarswellNat 1981, [1998] A.C.F. No. 1425, [1998] F.C.J. No. 1425 (Fed. T.D.) — followed Perez v. Canada (Minister of Citizenship & Immigration) (2006), 2006 Car- swellNat 5267, 2006 CF 1379, 59 Imm. L.R. (3d) 156, 2006 CarswellNat 3832, 2006 FC 1379, [2006] F.C.J. No. 1733 (F.C.) — considered 144 IMMIGRATION LAW REPORTER 7 Imm. L.R. (4th)

Raza v. Canada (Minister of Citizenship & Immigration) (2006), 58 Admin. L.R. (4th) 283, 304 F.T.R. 46 (Eng.), 2006 CF 1385, 2006 CarswellNat 6063, 2006 CarswellNat 3923, 2006 FC 1385, [2006] F.C.J. No. 1779 (F.C.) — considered Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Generally — referred to s. 113(a) — considered Regulations considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Immigration and Refugee Protection Regulations, SOR/2002-227 s. 161(2) — considered

APPLICATION by applicant for judicial review of decision by Pre-Removal Risk Assessment officer which rejected applicants’ application.

Daniel Kingwell, for Applicants Rafeena Rashid, for Respondent

Donald J. Rennie J.:

1 This decision pertains to an application for judicial review of a Febru- ary, 11 2011, decision by Citizenship and Immigration Canada’s Pre-Re- moval Risk Assessment Office (PRRA) which rejected the applicants’ PRRA application. For the reasons that follow, the application is granted.

Facts 2 The principal applicant (applicant), Ramiro A. Sarabia, a political official and a journalist, claimed to be a target of politically-motivated violence in Mexico. The applicant also claimed that he had been wrongly accused by the Governor of the State of Guerrero of a murder that took place in Mexico. He fled Mexico for Canada, along with his family, and arrived here in August 2008. His claim for refugee status was denied by the Refugee Protection Division (RPD) of the Immigration and Refugee Board (the Board) in November 2009 due to credibility concerns, delay in flight and the failure to rebut the presumption of state protection. On April 6, 2010, his application for leave to seek judicial review in this Court was denied. 3 In August 2010, the applicant submitted his PRRA application. The applicant submitted twelve documents, mostly consisting of country reports, photographs from newspapers and a threatening note that his fa- Arteaga Sarabia v. Canada (MCI) Donald J. Rennie J. 145

ther, still in Mexico, had received in July 2010. On February 11, 2011 the PRRA Officer communicated his decision to the applicant. That decision stated: For the purposes of this assessment, I have reviewed and considered the applicants’ PRRA applications, PRRA submissions, the RPD decision and reasons as well as the documentary evidence submitted by these applicants. In their PRRA applications and documentation the applicants have not enumerated any new risks or risk developments since their RPD rejection; they have simply submitted a substantial package of documentation on Mexico regarding political killings, drug cartel killings, travel warnings to American citizens planning a trip to Mexico and an Amnesty International report for 2010. These issues were considered by the RPD panel. No new risks have been enumerated nor have the findings of the RPD panel been rebutted. Also....they have failed to persuade me that a new risk has developed between the rejection by the RPD and their PRRA assessment. In the absence of evidence to the contrary, I am not persuaded to arrive at a conclusion different from that of the RPD panel....

Issue 4 The issue in this case is whether the decision of the PRRA Officer that the applicant had not submitted new evidence as to risk was made in accordance with applicable legal principles; hence the standard of review is correctness. The applicant’s primary argument is that the PRRA Of- ficer erred in failing to mention, consider or otherwise reference the photographs and the threatening note left with his father. The threatening note, according to the translation, indicated that “we are waiting for you”. It was accompanied by photographs of decapitated bodies.

Analysis 5 Section 113(a) of the Immigration and Refugee Protection Act, (SC 2001, c 27), (IRPA) provides as follows: 113. Consideration of an application for protection shall be as follows: (a) an applicant whose claim to refugee protection has been rejected may present only new evidence that arose after the rejection or was not reasonably available, or that the applicant could not reasonably have been expected in the circumstances to have presented, at the time of the rejection; 113. Il est dispos´e de la demande comme il suit: 146 IMMIGRATION LAW REPORTER 7 Imm. L.R. (4th)

a) le demandeur d’asile débouté ne peut présenter que des el´´ e- ments de preuve survenus depuis le rejet ou qui n’étaient alors pas normalement accessibles ou, s’ils l’étaient, qu’il n’était pas raisonnable, dans les circonstances, de s’attendre a` ce qu’il les ait présentés au moment du rejet; 6 The jurisprudence on this section of IRPA is well-settled. In Perez v. Canada (Minister of Citizenship & Immigration), 2006 FC 1379 (F.C.) at para 5, Justice Judith Snider held: It is well-established that a PRRA is not intended to be an appeal of a decision of the RPD....The purpose of the PRRA is not to reargue the facts that were before the RPD. The decision of the RPD is to be considered as final with respect to the issue of protection under s. 96 or s. 97, subject only to the possibility that new evidence demonstrates that the applicant would be exposed to a new, different or additional risk that could not have been contemplated at the time of the RPD decision. 7 In Raza v. Canada (Minister of Citizenship & Immigration), 2006 FC 1385 (F.C.), Justice Richard Mosley held, to the same effect, that: It must be recalled that the role of the PRRA officer is not to revisit the Board’s factual and credibility conclusions but to consider the present situation. In assessing “new information” it is not just the date of the document that is important, but whether the information is significant or significantly different than the information previously provided....Where “recent” information (i.e. information that postdates the original decision) merely echoes information previously submitted, it is unlikely to result in a finding that country conditions have changed. The question is whether there is anything of “substance” that is new.... 8 In the submissions received by the PRRA Officer the applicant attached a schedule which explained his submissions, thus discharging the burden imposed upon him in section 161(2) of the Immigration and Ref- ugee Protection Regulations, (SOR/2002-227) (Regulations), which states as follows: New evidence (2) A person who makes written submissions must identify the evidence presented that meets the requirements of paragraph 113(a) of the Act and indicate how that evidence relates to them. Nouveaux el´´ ements de preuve (2) Il désigne, dans ses observations ecrites,´ les el´´ ements de preuve qui satisfont aux exigences prévues a` l’alinéa 113a) de la Loi et in- dique dans quelle mesure ils s’appliquent dans son cas. Arteaga Sarabia v. Canada (MCI) Donald J. Rennie J. 147

9 The PRRA Officer found that with the submission of this evidence, “the applicants have not enumerated any new risks or risk developments since their RPD rejection,” and that “[n]o new risks have been enumerated nor have the findings of the RPD panel been rebutted. Also....they have failed to persuade me that a new risk has developed between the rejection by the RPD and their PRRA assessment.” As a matter of first impression, these findings are reasonable, as the information submitted in support appears, in the main, to have only merely echoed the information previously submitted. 10 However, there is no evidence in the decision that the PRRA Officer considered the photographs and the note. The failure to consider material and relevant evidence cannot be saved, in this case, by reference to a general statement that the decision maker considered all of the evidence. Here, the Officer expressly considered all the evidence, save the two critical pieces of new evidence. This case thus falls squarely within the decision of Cepeda-Gutierrez v. Canada (Minister of Citizenship & Immigra- tion), [1998] F.C.J. No. 1425 (Fed. T.D.) where, at paras 16 and 17 Justice John Evans wrote: On the other hand, the reasons given by administrative agencies are not to be read hypercritically by a court (Medina v. Canada (Minister of Employment and Immigration) (1990), 12 Imm. L.R. (2d) 33 (F.C.A.)), nor are agencies required to refer to every piece of evidence that they received that is contrary to their finding, and to explain how they dealt with it (see, for example, Hassan v. Canada (Minister of Employment and Immigration) (1992), 147 N.R. 317 (F.C.A.). That would be far too onerous a burden to impose upon administrative decision-makers who may be struggling with a heavy case-load and inadequate resources. A statement by the agency in its reasons for decision that, in making its findings, it considered all the evidence before it, will often suffice to assure the parties, and a reviewing court, that the agency directed itself to the totality of the evidence when making its findings of fact. However, the more important the evidence that is not mentioned specifically and analyzed in the agency’s reasons, the more willing a court may be to infer from the silence that the agency made an erro- neous finding of fact “without regard to the evidence”: Bains v. Can- ada (Minister of Employment and Immigration) (1993), 63 F.T.R. 312 (F.C.T.D.). In other words, the agency’s burden of explanation increases with the relevance of the evidence in question to the disputed facts. Thus, a blanket statement that the agency has considered all the evidence will not suffice when the evidence omitted from any discussion in the reasons appears squarely to contradict the agency’s 148 IMMIGRATION LAW REPORTER 7 Imm. L.R. (4th)

finding of fact. Moreover, when the agency refers in some detail to evidence supporting its finding, but is silent on evidence pointing to the opposite conclusion, it may be easier to infer that the agency overlooked the contradictory evidence when making its finding of fact. 11 The note and the photographs are evidence which came into the applicant’s possession after his refugee claim had been decided. In the absence of reasons for rejecting, or otherwise not considering this evidence, it is impossible to tell from the PRRA Officer’s decision whether an additional risk that could not have been contemplated at the time of the RPD decision would have been established. 12 Counsel for the respondent contended that if viewed in the context of the findings of the Board, which found against the applicant on credibility on most aspects of the claim, the PRRA Officer was not required to address the evidence. Put otherwise, the PRRA Officer was entitled to discount the evidence, indirectly, given the credibility issues that per- vaded the claim itself. Here, however, the new evidence was material and related to a new risk; hence it fell squarely within the purpose for which the pre-removal risk assessment must be conducted. The evidence was central to the issue of risk, and if accepted, could have changed the outcome of the PRRA Officer’s assessment. 13 The respondent also contends that the application should be rejected on the basis that it simply amounts to a request that this Court re-weigh the evidence. While that is indeed a valid argument in many cases, in this case it does not apply. The applicant does not seek a re-weighing of the evidence; rather the applicant seeks that it be weighed. 14 The application is granted. The PRRA decision is set aside and sent back for redetermination by a different officer. 15 There is no question for certification.

Judgment THIS COURT’S JUDGMENT is that the application for judicial review is granted. The matter is referred back to the Pre-Removal Risk Assessment Office for reconsideration before a different officer. No question for certification has been proposed and the Court finds that none arises. Application granted. Kwon v. Canada (MCI) 149

[Indexed as: Kwon v. Canada (Minister of Citizenship & Immigration)] Hwa Ja Kwon, Sung Ding Lee, Applicants and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-609-11 2012 FC 50 Sandra J. Simpson J. Heard: August 9, 2011 Judgment: January 13, 2012 Immigration and citizenship –––– Admission — Application for temporary resident or immigrant visa — Inland applications — Application of humanitarian and compassionate considerations — Family relationship –––– Aliens, citizens of South Korea, had daughter who resided in Canada and who gave birth to two children (grandchildren), Canadian citizens — Daughter’s Ca- nadian marriage and family life was characterized by significant abuse by spouse’s family members, witnessed and experienced by grandchildren — Daughter ultimately escaped marriage and trained to become registered nurse, working long hours on shifts — Aliens came to Canada, learned basic English and became primary caregivers for grandchildren — In interim, daughter’s husband suffered serious head injury and became unable to care for grandchildren — Aliens brought inland application for permanent residence in Canada on humanitarian and compassionate grounds — Immigration Officer found that aliens provided significant and needed emotional support for grandchildren — Officer did not refer to that support in disposition portion of reasons — Applica- tion was dismissed and aliens brought application for judicial review — Appli- cation granted — Having found that aliens met real and pressing needs of grandchildren, and then apparently failing to take this finding into account in issuing decision, rendered Officer’s decision unreasonable — “[I]t is obvious that the departure of [aliens] would deprive the Granddaughters of the emotional and psychological support which the Officer concluded they required” — Appli- cation was accordingly properly granted and matter remitted for reconsideration. Cases considered by Sandra J. Simpson J.: Rodriguez Zambrano v. Canada (Minister of Citizenship & Immigration) (2008), 2008 FC 481, 2008 CarswellNat 1043, 2008 CF 481, (sub nom. Zambrano v. Canada (Minister of Citizenship & Immigration)) 326 F.T.R. 174 (Eng.), 2008 CarswellNat 3499, [2008] F.C.J. No. 601 (F.C.) — referred to 150 IMMIGRATION LAW REPORTER 7 Imm. L.R. (4th)

Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 25 — referred to s. 72(1) — pursuant to s. 74 — referred to

APPLICATION by aliens for judicial review of decision of Immigration Officer dismissing aliens’ application for permanent residence in Canada on humanitarian and compassionate grounds.

Jegan N. Mohan, for Applicant Jane Stewart, for Respondent

Sandra J. Simpson J.: The Proceeding 1 Hwa Ja Kwon and Sung Ding [the Applicants], seek judicial review pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001, c27 [the Act] of a decision of a Citizenship and Immigra- tion Officer [the Officer] dated January 11, 2011, wherein he refused the Applicants’ request for permanent residence from within Canada on humanitarian and compassionate [H&C] grounds [the Decision]. 2 For the following reasons, the application for judicial review will be allowed.

The Background 3 The Applicants are a husband and wife from South Korea. She has been a homemaker while in Canada but previously worked in Korea as an insurance broker and businesswoman. He is a retired school principal and former music teacher. The Applicants have three adult children in Korea. Their fourth child [the Daughter] is a Canadian citizen and the mother of her own two daughters now aged 9 and 11 [the Granddaughters]. 4 The Daughter’s married life in Canada was a nightmare. Her young family lived with her husband’s parents who were abusive. There was physical violence. As well, the Daughter’s husband was an alcoholic who accumulated serious debts. The Daughter eventually ended the marriage but thereafter she was left alone as a student with no money and two young children. 5 The Applicants came to the rescue. They moved to Canada on August 14, 2009, purchased a home for their Daughter and Granddaughters, Kwon v. Canada (MCI) Sandra J. Simpson J. 151

learned basic English and provided a loving, stable and safe environment for them. Their efforts over the last two years have borne fruit. Their Granddaughters are doing well at school and their Daughter has completed her studies and has secured employment as a registered nurse. However, her shift work means that she is often not home in the evening and on weekends. 6 After the marriage ended, the Daughter’s husband suffered a brain injury in a motorcycle accident. He is permanently mentally disabled. He is not able to play any role in the upbringing of his children. 7 At present, the Applicants are effectively parenting their Granddaugh- ters because their Daughter’s nursing shifts do not permit her to be at home on a regular basis. It is not disputed that the Daughter very much wants the Applicants to stay with her family in Canada and, on April 8, 2010, the Applicants made their H&C application.

The Issue 8 The parties agree that the Applicants will not endure any disproportionate or unusual and undeserved hardship if they return to Korea to make their application for permanent residence. Accordingly, this case concerns the Officer’s obligation under section 25 of the Act to make the Decision “taking into account the best interests of a child directly affected”. 9 Against this background, the determinative issue is whether the Of- ficer adequately considered the best interests of the Applicants’ Granddaughters.

The Standard of Review 10 The reasonableness standard applies to the consideration of the best interests of the Granddaughters. See Rodriguez Zambrano v. Canada (Minister of Citizenship & Immigration), 2008 FC 481, 326 F.T.R. 174 (Eng.) (F.C.) at para 31.

The Decision 11 Regarding the Granddaughters, the Officer wrote, under the heading “Factors” that the Applicants “also provide much needed emotional support as the grandchildren and their mother have suffered great stress due to domestic violence and on going disputes within the family”. It is note- worthy that this observation was written in the present tense. The Officer also noted that the Applicants’ departure would leave the divorced Daughter raising her young children alone when she must work full time 152 IMMIGRATION LAW REPORTER 7 Imm. L.R. (4th)

to support them. As well, under the heading “Supporting a Positive Deci- sion”, the Officer again wrote in the present tense that the “applicants provide needed emotional and psychological support”. 12 However, the Granddaughters’ current need for the emotional and psychological support which the Applicants provide is not mentioned in the narrative portion of the Decision. There, the Officer appears to conclude that, because the immediate crisis has passed and because the Granddaughters are doing well in school, the Applicants are no longer needed. 13 In my view, this inconsistency makes the Decision unreasonable. It has only been two years since two young children were removed from what the Officer acknowledged were “dramatic hostilities” and placed in new surroundings without their father and under the care of grandparents whom they did not know and with whom they could not communicate. The only constant has been their mother who was absent much of the time as a student and then as a young nurse. It is to the Applicants’ great credit that they learned basic English and successfully provided a stable home for their young Granddaughters. 14 It is clear to me that these relatively recent changes, together with the preceding traumatic events, indicate that the continuity and stability afforded the Applicants’ ongoing presence must be of paramount importance to the Granddaughters’ continued emotional and psychological wellbeing. 15 In my view, given that the Officer recognized that the Granddaugh- ters needed emotional and psychological support on an ongoing basis, his failure to squarely address the impact of the Applicants’ departure on their Granddaughters was unreasonable. 16 As well, there was a suggestion in the Decision that there should have been psychologists’ reports on the Granddaughters showing evidence of ongoing or permanent trauma to justify the H&C application. However, in my view, expert opinions were not required. On these facts, it is obvious that the departure of the Applicants would deprive the Granddaugh- ters of the emotional and psychological support which the Officer concluded they required.

Certified Question 17 No question was posed for certification pursuant to section 74 of the Act. Kwon v. Canada (MCI) Sandra J. Simpson J. 153

Judgment THIS COURT’S JUDGMENT is that, the application for judicial review is allowed and the H&C application is hereby sent back for reconsideration by another officer. The Applicants may file fresh evidence on the reconsideration. Application granted. 154 IMMIGRATION LAW REPORTER 7 Imm. L.R. (4th)

[Indexed as: Sun v. Canada (Minister of Citizenship & Immigration)] Feng Ce Sun and Kai Lau Sun, Applicants and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-4062-11 2012 FC 206 James Russell J. Heard: January 12, 2012 Judgment: February 13, 2012 Immigration and citizenship –––– Refugee protection — Practice and procedure in refugee claims — Judicial review — Natural justice — Insufficient reasons –––– Principal Applicant, FS, was citizen of People’s Republic of China (“PRC”) — He was seventeen years old and lived with mother, grandmother, grandfather, uncle, aunt, cousin, and younger brother in PRC — Secondary applicant, KS, was principal applicant’s biological father and currently lived in Oakville, Ontario — He had been Canadian citizen since August 24, 1994 — Secondary applicant came to Canada as permanent resident in 1999 — At that time, he did not know that he and principal applicant were father and son — In November 2009, principal applicant’s mother contacted secondary applicant and told him they had son together — DNA test in June 2010 confirmed relationship — Secondary applicant accepted principal applicant as son and began to build relationship with him — On January, 25 2011, secondary applicant applied to sponsor principal applicant to Canada as member of family class under s. 12(1) of Immigration and Refugee Protection Act — Designated visa officer at Canadian Embassy in Beijing refused applicants’ request for humanitarian and compassionate exemption — Applicants brought application for judicial review of decision — Application granted — Decision was quashed and matter was returned for reconsideration by different officer — Decision showed no awareness of what was required in any such analysis, so it was unreasonable and incomprehensible — It could not be determined why officer denied requested exemption — Also, it could not be determined what officer took to be in principal applicant’s best interests — Decision was nothing more than recitation of facts with conclusion tagged on — In what appeared to be summation paragraph of decision, officer simply listed factors related to situation in PRC — She did not mention any benefits of principal applicant coming to Canada — There was no idea of what officer thought best interests of principal applicant were and no analysis to support conclusion. Sun v. Canada (Minister of Citizenship & Immigration) 155

Cases considered by James Russell J.: Adjani v. Canada (Minister of Citizenship & Immigration) (2008), 2008 Car- swellNat 102, 2008 FC 32, 322 F.T.R. 1 (Eng.), 2008 CarswellNat 1261, 2008 CF 32 (F.C.) — considered Baker v. Canada (Minister of Citizenship & Immigration) (1999), 1 Imm. L.R. (3d) 1, [1999] 2 S.C.R. 817, 14 Admin. L.R. (3d) 173, 174 D.L.R. (4th) 193, 1999 CarswellNat 1124, 1999 CarswellNat 1125, 243 N.R. 22, [1999] S.C.J. No. 39 (S.C.C.) — followed Baro v. Canada (Minister of Citizenship & Immigration) (2007), 2007 FC 1299, 2007 CarswellNat 5117, 2007 CF 1299, 2007 CarswellNat 4369, [2007] F.C.J. No. 1667, [2007] A.C.F. No. 1667 (F.C.) — considered de Guzman v. Canada (Minister of Citizenship & Immigration) (2005), 42 Ad- min. L.R. (4th) 234, 2005 FCA 436, 2005 CarswellNat 4381, 51 Imm. L.R. (3d) 17, 262 D.L.R. (4th) 13, 137 C.R.R. (2d) 20, [2006] 3 F.C.R. 655, 345 N.R. 73, 2005 CarswellNat 6009, 139 C.R.R. (2d) 376 (note), [2005] F.C.J. No. 2119 (F.C.A.) — considered Guadeloupe v. Canada (Minister of Citizenship & Immigration) (2008), 2008 CarswellNat 3776, 2008 FC 1190, 2008 CarswellNat 5172, 2008 CF 1190, 75 Imm. L.R. (3d) 102, [2008] F.C.J. No. 1469 (F.C.) — referred to 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, 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.) — considered Karanja v. Canada (Minister of Citizenship & Immigration) (2006), 2006 Car- swellNat 1265, 2006 FC 574, 2006 CF 574, 2006 CarswellNat 2533, [2006] F.C.J. No. 717 (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.) — followed Kisana v. Canada (Minister of Citizenship & Immigration) (2009), 2009 FCA 189, 2009 CarswellNat 1626, 2009 CAF 189, 392 N.R. 163, 2009 Car- swellNat 4008, [2010] 1 F.C.R. 360, [2009] F.C.J. No. 713 (F.C.A.) — followed Kolosovs v. Canada (Minister of Citizenship & Immigration) (2008), 2008 CF 165, 2008 CarswellNat 745, 2008 FC 165, 2008 CarswellNat 281, 323 F.T.R. 181 (Eng.), [2008] F.C.J. No. 211 (F.C.) — referred to 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.) — considered N.L.N.U. v. Newfoundland & Labrador (Treasury Board) (2011), 2011 Car- swellNfld 414, 2011 CarswellNfld 415, 2011 SCC 62, (sub nom. Nfld. and 156 IMMIGRATION LAW REPORTER 7 Imm. L.R. (4th)

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, (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.) — followed New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1, 69 Admin. L.R. (4th) 1, 69 Imm. L.R. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) [2008] 1 S.C.R. 190, 844 A.P.R. 1, (sub nom. Dunsmuir v. New Brunswick) 2008 C.L.L.C. 220-020, D.T.E. 2008T-223, 329 N.B.R. (2d) 1, (sub nom. Dunsmuir v. New Brunswick) 170 L.A.C. (4th) 1, (sub nom. Dunsmuir v. New Brunswick) 291 D.L.R. (4th) 577, 2008 CarswellNB 124, 2008 CarswellNB 125, 2008 SCC 9, 64 C.C.E.L. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) 95 L.C.R. 65, [2008] S.C.J. No. 9, [2008] A.C.S. No. 9 (S.C.C.) — followed Owusu v. Canada (Minister of Citizenship & Immigration) (2004), 2004 FCA 38, 2004 CarswellNat 248, 2004 CAF 38, 2004 CarswellNat 1117, 318 N.R. 300, (sub nom. Owusu v. Canada) [2004] 2 F.C.R. 635, [2004] F.C.J. No. 158 (F.C.A.) — referred to Shchegolevich v. Canada (Minister of Citizenship & Immigration) (2008), 2008 CF 527, 2008 CarswellNat 2131, 57 R.F.L. (6th) 160, 2008 FC 527, 2008 CarswellNat 1184 (F.C.) — followed Thandal v. Canada (Minister of Citizenship & Immigration) (2008), 2008 CF 489, 2008 CarswellNat 1085, 2008 FC 489, 2008 CarswellNat 1958, [2008] F.C.J. No. 623 (F.C.) — followed VIA Rail Canada Inc. v. Canada (National Transportation Agency) (2000), 2000 CarswellNat 2531, 26 Admin. L.R. (3d) 1, 261 N.R. 184, 193 D.L.R. (4th) 357, [2001] 2 F.C. 25, 2000 CarswellNat 3453, [2000] F.C.J. No. 1685 (Fed. C.A.) — considered Yu v. Canada (Minister of Citizenship & Immigration) (2006), 2006 Car- swellNat 5103, 298 F.T.R. 82 (Eng.), 2006 FC 956, 2006 CarswellNat 2405, 55 Imm. L.R. (3d) 159, 2006 CF 956, [2006] F.C.J. No. 1217 (F.C.) — considered Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Generally — referred to s. 3(1)(d) — considered s. 11(1) — considered s. 12(1) — considered s. 25(1) — considered Sun v. Canada (Minister of Citizenship & Immigration) James Russell J. 157

s. 72(1) — pursuant to Regulations considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Immigration and Refugee Protection Regulations, SOR/2002-227 Generally — referred to s. 116 — referred to s. 117(1)(b) — considered s. 117(9)(d) — considered

APPLICATION by applicants for judicial review of decision of designated visa officer at Canadian Embassy in Beijing who refused applicants’ request for humanitarian and compassionate exemption.

Mario D. Bellissimo, for Applicants Knatidja Moloo-Alam, 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 a designated Visa Officer at the Canadian Embassy in Beijing (Officer), dated 31 March 2011 (Decision). The Officer refused the Ap- plicants’ request for a Humanitarian and Compassionate (H&C) exemption under subsection 25(1) of the Act from paragraph 117(9)(d) of the Immigration and Refugee Protection Regulations SOR/2002-227 (Regulations).

Background 2 The Principal Applicant, Feng Ce Sun, is a citizen of the People’s Republic of China (PRC). He is seventeen years old and currently lives with his mother, grandmother, grandfather, uncle, aunt, cousin, and younger brother in the PRC. The Secondary Applicant, Kai Lau Sun, is the Principal Applicant’s biological father and currently lives in Oakville, Ontario. He has been a Canadian citizen since 24 August 1994. 3 The Secondary Applicant came to Canada as a permanent resident in 1999. At that time, he did not know that he and the Principal Applicant were father and son. Because he was unaware of his relationship to the Principal Applicant, the Secondary Applicant did not declare the Princi- pal Applicant on his application for permanent residence. 158 IMMIGRATION LAW REPORTER 7 Imm. L.R. (4th)

4 The Secondary Applicant had conducted an affair with the Principal Applicant’s mother in the past, which ended in 1993 when she married another man. Shortly after her marriage, she conceived. In November 2009, the Principal Applicant’s mother contacted the Secondary Appli- cant and told him they had a son together. At that time, the Principal Applicant was fifteen years old. At first, the Secondary Applicant refused to believe he had a son, but a DNA test in June 2010 confirmed their relationship. The Secondary Applicant accepted the Principal Applicant as his son and began to build a relationship with him. In 2010, the Secon- dary Applicant spent several months in the PRC visiting the Principal Applicant. During that period, they spent time together on weekends and during the Principal Applicant’s vacation from school. While he was visiting the PRC, the Secondary Applicant bought the Principal Applicant clothing and gave him 70,000 Yuan — approximately $11,000. 5 On 25 January 2011, the Secondary Applicant applied to sponsor the Principal Applicant to Canada as a member of the family class under subsection 12(1) of the Act, section 116 of the Regulations, and paragraph 117(1)(d) of the Regulations (Sponsorship Application). After the Sponsorship Application was paper screened by the Immigration Section at the Beijing Embassy, both Applicants were convoked for interviews with the Officer. The Officer conducted both interviews on 31 March 2011; she interviewed the Principal Applicant first, and then interviewed the Secondary Applicant. After she interviewed the Secondary Applicant, the Officer gave him her Decision orally. She said that she was not satisfied that H&C considerations existed in the Applicants’ case which warranted an exemption. The Officer also sent the Applicants a letter on 31 March 2011.

Decision Under Review 6 The Decision consists of the letter sent to the Applicants on 31 March 2011 (Refusal Letter) and the CAIPS notes on the Applicants’ file. 7 In the Refusal Letter, the Officer reviewed paragraph 117(9)(d) of the Regulations, which reads as follows: 117 [...] (9) A foreign national shall not be considered a member of the family class by virtue of their relationship to a sponsor if [...] (d) subject to subsection (10), the sponsor previously made an application for permanent residence and became a permanent resident and, at the time of that application, the foreign national was a non-accompanying family member of the sponsor and was not examined. Sun v. Canada (Minister of Citizenship & Immigration) James Russell J. 159

[...] (9) Ne sont pas considérées comme appartenant a` la catégorie du regroupement familial du fait de leur relation avec le répondant les personnes suivantes: [...] d) sous réserve du paragraphe (10), dans le cas où le répondant est devenu résident permanent a` la suite d’une demande a` cet effet, l’étranger qui, a` l’époque où cette demande a et´´ e faite, etait´ un membre de la famille du répondant n’accompagnant pas ce dernier et n’a pas fait l’objet d’un contrôle. [...] 8 The Officer noted that the Secondary Applicant had not declared the Principal Applicant on his application for permanent residence in 1999; the Principal Applicant was not examined at that time. The Officer found that the Principal Applicant was excluded from the family class by paragraph 117(9)(d) of the Regulations. 9 The CAIPS notes indicate that, at the interview, the Secondary Appli- cant said that he did not know about the Principal Applicant until 2009, which was why he did not declare the Principal Applicant on his application. The Officer found that the Secondary Applicant’s reasons for want- ing to be reunited with the Principal Applicant were reasons which did not go beyond any parent’s wish to be reunited with a child. She found that these reasons could have been foreseen when paragraph 117(9)(d) was enacted. 10 At the interview, the Principal Applicant had said that he lived with his mother and grandmother in the PRC and that both of them were un- employed. He had also said that they took care of his grandfather, who was ill, and that the family was in a difficult financial situation. He further said that his uncle, aunt, and cousin lived in the same house with them, and that he shared a room with his brother and cousin. The Officer noted that the Principal Applicant was seventeen years old, almost an adult, and was bright and energetic. She found that he appeared to be well taken care of by his family in the PRC, did well in school, and had been receiving financial support from the Secondary Applicant. The Of- ficer also found that the main reason why it was difficult for the Secon- dary Applicant to be united with the Principal Applicant in the PRC was that the Secondary Applicant had business in Canada. 11 In the CAIPS notes, the Officer wrote that, although the Secondary Applicant had visited the Principal Applicant in the PRC for nearly six months, the Applicants had not spent much time together. She found that 160 IMMIGRATION LAW REPORTER 7 Imm. L.R. (4th)

the Secondary Applicant had not made much of an effort to take care of the Principal Applicant on a daily basis. In his interview, the Secondary Applicant had said that he spent almost a whole month with the Principal Applicant, including a trip to Dalian — a city on the southern coast of the PRC — and that they had attended a spring festival together. The Secondary Applicant had also said at the interview that, if the Sponsor- ship Application were successful, he and the Principal Applicant would get an apartment together in the PRC, which would make it easier for him to be involved in the Principal Applicant’s life. The Officer said that it was not clear why the Secondary Applicant’s decision to get an apartment with the Principal Applicant depended on the outcome of the Spon- sorship Application.

Conclusion 12 The Officer concluded that, based on the information in the Sponsor- ship Application and taking into account the Principal Applicant’s best interests, she was not satisfied that an H&C exemption was warranted. Without an exemption, the Principal Applicant was permanently excluded from the family class under paragraph 117(9)(d) of the Regula- tions. After reviewing subsection 11(1) of the Act, the Officer concluded that she was not satisfied that the Principal Applicant was not inadmissible or that he met the requirements of the Act. She therefore refused to issue him a permanent resident visa.

Issues 13 The Applicants raise the following issues in this case: a. Whether the Officer’s reasons are adequate; b. Whether the Decision is reasonable; c. Whether the Officer was alert, alive, and sensitive to the Principal Applicant’s interests.

Standard of Review 14 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. Sun v. Canada (Minister of Citizenship & Immigration) James Russell J. 161

15 In N.L.N.U. v. Newfoundland & Labrador (Treasury Board), 2011 SCC 62 (S.C.C.), the Supreme Court of Canada held at paragraph 14 that the adequacy of reasons is not a stand-alone basis for quashing a decision. Rather, “the reasons must be read together with the outcome and serve the purpose of showing whether the result falls within a range of possible outcomes.” The first issue in this case, whether the Officer provided adequate reasons, is to be analysed along with the reasonableness of the Decision as a whole. 16 In Baker v. Canada (Minister of Citizenship & Immigration), [1999] S.C.J. No. 39 (S.C.C.), the Supreme Court of Canada held that, when reviewing an H&C decision, “considerable deference should be accorded to immigration Officers exercising the powers conferred by the legislation, given the fact-specific nature of the inquiry, its role within the statutory scheme as an exception, the fact that the decision-maker is the Min- ister, and the considerable discretion evidenced by the statutory language” (paragraph 62). Justice Michael Phelan followed this approach in Thandal v. Canada (Minister of Citizenship & Immigration), 2008 FC 489 (F.C.), at paragraph 7. The Federal Court of Appeal found at paragraph 18 of Kisana v. Canada (Minister of Citizenship & Immigration), 2009 FCA 189 (F.C.A.) that the standard of review on H&C determinations is reasonableness. The standard of review on the second issue is reasonableness. 17 In Hawthorne v. Canada (Minister of Citizenship & Immigration), 2002 FCA 475 (Fed. C.A.), the Federal Court of Appeal held at paragraph 6 that the officer’s task [in an H&C determination] is to determine, in the circumstances of each case, the likely degree of hardship to the child caused by the removal of the parent and to weigh this degree of hardship together with other factors, including public policy considerations, that militate in favour of or against the removal of the parent. 18 Further, the Federal Court of Appeal held in Legault v. Canada (Minister of Citizenship & Immigration), 2002 FCA 125 (Fed. C.A.) at paragraph 12 that, once an officer has identified and defined the best interests of the child, it is up to her to determine what weight those interests must be given in the circumstances. Where the best interests of a child lie is a question of fact which, following Dunsmuir, above, at paragraph 53, will attract a standard of reasonableness. The standard of review on the third issue is reasonableness. 19 When reviewing a decision on the standard of reasonableness, the analysis will be concerned with “the existence of justification, trans- 162 IMMIGRATION LAW REPORTER 7 Imm. L.R. (4th)

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 v. Canada (Minister of Citizenship & Immigration), 2009 SCC 12 (S.C.C.) 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.”

Statutory Provisions 20 The following provisions of the Act are applicable in this proceeding: 3. (1) The objectives of this Act with respect to immigration are (d) to see that families are reunited in Canada; ... 11. (1) A foreign national must, before entering Canada, apply to an officer for a visa or for any other document required by the regulations. The visa or document may be issued if, following an examination, the officer is satisfied that the foreign national is not inadmissible and meets the requirements of this Act. 12. (1) A foreign national may be selected as a member of the family class on the basis of their relationship as the spouse, common-law partner, child, parent or other prescribed family member of a Cana- dian citizen or permanent resident. ... 25. (1) The Minister must, on request of a foreign national in Canada who is inadmissible or who does not meet the requirements of this Act, and may, on request of a foreign national outside Canada, examine the circumstances concerning the foreign national and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligations of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to the foreign national, taking into account the best interests of a child directly affected. 3. (1) En matière d’immigration, la présente loi a pour objet: d) de veiller a` la réunification des familles au Canada; ... 11. (1) L’étranger doit, préalablement a` son entrée au Canada, demander a` l’agent les visa et autres documents requis par règlement. L’agent peut les délivrer sur preuve, a` la suite d’un contrôle, que l’étranger n’est pas interdit de territoire et se conforme a` la présente loi. Sun v. Canada (Minister of Citizenship & Immigration) James Russell J. 163

12. (1) La sélection des etrangers´ de la catégorie « regroupement familial » se fait en fonction de la relation qu’ils ont avec un citoyen canadien ou un résident permanent, a` titre d’époux, de conjoint de fait, d’enfant ou de père ou mère ou a` titre d’autre membre de la famille prévu par règlement. ... 25. (1) Le ministre doit, sur demande d’un etranger´ se trouvant au Canada qui est interdit de territoire ou qui ne se conforme pas a` la présente loi, et peut, sur demande d’un etranger´ se trouvant hors du Canada, etudier´ le cas de cet etranger;´ il peut lui octroyer le statut de résident permanent ou lever tout ou partie des critères et obligations applicables, s’il estime que des considérations d’ordre humanitaire relatives a` l’étranger le justifient, compte tenu de l’intérêt supérieur de l’enfant directement touché. 21 The following provisions of the Regulations are also applicable in this proceeding: 117. (1) A foreign national is a member of the family class if, with respect to a sponsor, the foreign national is ... (b) a dependent child of the sponsor; ... (9) A foreign national shall not be considered a member of the family class by virtue of their relationship to a sponsor if ... (d) subject to subsection (10), the sponsor previously made an application for permanent residence and became a permanent resident and, at the time of that application, the foreign national was a non-accompanying family member of the sponsor and was not examined. 117. (1) Appartiennent a` la catégorie du regroupement familial du fait de la relation qu’ils ont avec le répondant les etrangers´ suivants: ... b) ses enfants a` charge; ... (9) Ne sont pas considérées comme appartenant a` la catégorie du regroupement familial du fait de leur relation avec le répondant les personnes suivantes: ... d) sous réserve du paragraphe (10), dans le cas où le répondant est devenu résident permanent a` la suite d’une demande a` cet effet, l’étranger qui, a` l’époque où cette demande a et´´ e faite, etait´ un mem- 164 IMMIGRATION LAW REPORTER 7 Imm. L.R. (4th)

bre de la famille du r´epondant n’accompagnant pas ce dernier et n’a pas fait l’objet d’un contrˆole.

Arguments The Applicants The Reasons are Inadequate 22 The Applicants argue that the reasons they were given do not allow them to understand why the Officer denied their request for an H&C exemption. They do not know why the grounds they advanced were not sufficient to merit an exemption from paragraph 117(9)(d) of the Regula- tions. In VIA Rail Canada Inc. v. Canada (National Transportation Agency), [2000] F.C.J. No. 1685 (Fed. C.A.), the Federal Court of Ap- peal held at paragraph 22 that simply reciting submissions and conclusions is not enough to meet the requirement for reasons. The Applicants say that, because the best interests of a child are implicated, it is not enough to simply list the ways that a child will be affected by the Deci- sion (see Guadeloupe v. Canada (Minister of Citizenship & Immigra- tion), 2008 FC 1190 (F.C.)). 23 The Officer simply summarized the facts established by the Appli- cants’ submissions and the interviews she conducted. She did not weigh the factors she was required to weigh and her reasons do not show that she was alert, alive, and sensitive to the Principal Applicant’s interests as required by Baker, above, at paragraph 75.

The Decision is Unreasonable 24 Under subsection 25(1) of the Act, the Respondent may grant an exemption from any provision of the Act or Regulations which, if it were applied in a particular case, would result in unusual and undeserved or disproportionate hardship. The Applicants say that the exclusion under paragraph 117(9)(d) of the Regulations was meant to capture only dis- honest applicants. The Secondary Applicant was honest and candid in his application for permanent residence to the best of his knowledge at the time he applied. The Applicants point to Baro v. Canada (Minister of Citizenship & Immigration), 2007 FC 1299 (F.C.) at paragraph 15, and argue that the Secondary Applicant’s honest misrepresentation is of a kind which should generally be granted an exemption. They say that the only avenue for them to be reunited in Canada is an H&C exemption under subsection 25(1) of the Act. Sun v. Canada (Minister of Citizenship & Immigration) James Russell J. 165

25 One of the purposes of the Act, as established by paragraph 3(1)(d), is to see families reunited in Canada. In this case, the Officer did not consider whether this objective of the Act would be best served by granting or denying the Applicants’ request for an H&C exemption. Because she ignored the overall scheme of the Act, the Decision is unreasonable. The Applicants rely on de Guzman v. Canada (Minister of Citizenship & Im- migration), 2005 FCA 436 (F.C.A.), and also point to Yu v. Canada (Minister of Citizenship & Immigration), 2006 FC 956 (F.C.), where Jus- tice Michel Shore said at paragraphs 1 and 31 that The anatomy of humanitarian and compassionate grounds is based on exceptional criteria in a differently constituted framework. That framework is established to examine extenuating circumstances. It is Canada’s unique response to the fragility of the human condition. [...] The purpose of the Immigration legislation is to assist immigration, not hinder it by setting obstacles (Hajariwala v. Canada (Minister of Employment and Immigration), [1989] 2 F.C. 79, [1988] F.C.J. No. 1021 (QL)). Furthermore, paragraph 3(1)(d) of IRPA, recognizing the fragility of the human condition in the separation of family members, clearly states that one of the objectives of the Act is to see that families are reunited in Canada.

The Decision was Based on an Error of Fact 26 In the Refusal Letter, the Officer wrote that “your sponsor stated that the main reason why it is difficult for him to return to China [sic] to reunite with you is because he has business in Canada.” Although the Secondary Applicant’s business in Canada was a factor, it was not the only factor which made it difficult for him to be with the Principal Appli- cant in the PRC; the Secondary Applicant also had significant family obligations in Canada, which he pointed out in his submissions. When she looked only at the Secondary Applicant’s business in Canada, the Officer fundamentally misapprehended the nature of the H&C request. This renders the Decision unreasonable.

The Officer made Improper Inferences 27 The Applicants say that the Officer inferred that the Secondary Appli- cant can continue to give the Principal Applicant financial support from the fact that he has given the Principal Applicant money in the past. The Officer appears to believe that the Secondary Applicant’s financial support will address the financial difficulties faced by the Principal Appli- cant and his family in the PRC. In their submissions to the Officer, the 166 IMMIGRATION LAW REPORTER 7 Imm. L.R. (4th)

Applicants said that the Secondary Applicant is concerned that the money given to the Principal Applicant goes to care for his grandparents and not directly to him. The Officer’s inference that the Principal Appli- cant will continue to receive financial support is flawed because neither of the Applicants has control over where the money goes. 28 The Officer also inferred that, if he had truly wanted to support his son, the Secondary Applicant would have had the Principal Applicant live with him while he visited the PRC in 2010. The Officer drew this inference without taking into account that: when the Secondary Appli- cant visited the PRC, the Applicants had only recently met; the Principal Applicant attends school from 6:30AM to 9:30PM on weekdays; and the Applicants spent time together on weekends and during vacations. The Officer did not mention these facts, even though the Secondary Appli- cant repeatedly referred to them in his interview with her.

Conclusion 29 The Decision does not show that the Officer was sensitive to or understood the Principal Applicant’s interests. The Officer also did not appreciate the Applicants’ position and how paragraph 117(9)(d) of the Regulations would actually affect them. If she had not made the errors the Applicants have alleged, the Officer would have concluded that there were sufficient grounds to grant their request for an H&C exemption.

The Respondent 30 The Respondent notes that the Secondary Applicant only learned of the Principal Applicant’s existence when the Principal Applicant was seventeen years old. He also notes that the Principal Applicant is well taken care of in the PRC with the financial assistance of his father, and the financial assistance the Secondary Applicant provides addresses the financial difficulties which prompted the Principal Applicant’s mother to inform the Secondary Applicant about their son.

The Reasons are Adequate 31 The Officer’s reasons show that she considered and weighed all the evidence and relevant factors, so they are adequate.

Paragraph 117(9)(d) is to have Strict Application 32 The Respondent refers to Adjani v. Canada (Minister of Citizenship & Immigration), 2008 FC 32 (F.C.) where Justice Edmond Blanchard Sun v. Canada (Minister of Citizenship & Immigration) James Russell J. 167 had the following to say, at paragraphs 22 to 25, on paragraph 117(9)(d) of the Regulations: Parliament has the right to adopt immigration policy and to enact legislation prescribing the conditions under which non-citizens will be permitted to enter and remain in Canada. This it has done by enacting the IRPA: Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 S.C.R. 711 at paragraph 27. The IRPA and Regu- lations made pursuant to paragraphs 14(2)(b) and (d) thereof, set out a regulatory scheme that essentially controls the admission of foreign nationals to Canada (Canada (Minister of Citizenship and Immigration) v. de Guzman, [2004] F.C.J. No. 1557, 2004 FC 1276at paragraph 35). Family reunification and the best interest of children are recognized as valid purposes under the IRPA and are to be considered when relevant. The legislation also has other purposes, one of which is the maintenance of the integrity of the Canadian refugee protection system. The Federal Court of Appeal had to consider whether paragraph 117 (9)(d) of the regulations was ultra vires the IRPA in Azizi v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 2041, 2005 FCA 406. Justice Rothstein, writing for the majority stated the following at paragraphs 28-29 of his reasons: [28] Paragraph 117(9)(d) does not bar family reunification. It simply provides that non-accompanying family members who have not been examined for a reason other than a decision by a visa officer will not be admitted as members of the family class. A humanitarian and compassionate application under section 25 of the IRPA may be made for Mr. Azizi’s dependants or they may apply to be admitted under another category in the IRPA. [29] Mr. Azizi says these are undesirable alternatives. It is true that they are less desirable from his point of view than had his dependants been considered to be members of the family class. But it was Mr. Azizi’s misrepresentation that has caused the problem. He is the author of this misfortune. He cannot claim that paragraph 117(9)(d) is ultra vires simply because he has run afoul of it. (My emphasis) The Court of Appeal has therefore decided that the impugned regulation is not ultra vires the IRPA particularly in cases where there is a misrepresentation to immigration authorities. Here, however, the Ap- plicant did not know of his son’s existence at the time of his application for permanent residence. He cannot, therefore, be said to have concealed this information or to have misrepresented his circum- 168 IMMIGRATION LAW REPORTER 7 Imm. L.R. (4th)

stances. In my view, it matters not whether non-disclosure is deliber- ate or not. The regulation is clear, paragraph 117(9)(d) makes no distinction as to the reason for which a non-accompanying family member of the sponsor was not disclosed in his application for permanent residence. What matters, is the absence of examination by an officer that necessarily flows from the non-disclosure. This interpretation is consistent with the findings of my Colleague, Justice Mosley in Hong Mei Chen v. M.C.I., [2005] F.C.J. No. 852, 2005 FC 678, where the scope and effect of the impugned regulation were found not to be limited to cases of fraudulent non-disclosure. At paragraph 11 of his reasons, my learned colleague wrote, “... Whatever the mo- tive, a failure to disclose which prevents the immigration officer from examining the dependent precludes future sponsorship of that person as a member of the family class.” The provisions of paragraph 117(9)(d) of the Regulations are not inconsistent with the stated purposes and objectives of the IRPA. I am in agreement with the view expressed by Justice Kelen at paragraph 38 of his reasons in de Guzman, above, that “The objective of family reunification does not override, outweigh, supersede or trump the basic requirement that the immigration law must be respected, and ad- ministered in an orderly and fair manner.” Further, in exceptional circumstances where humanitarian and compassionate factors are compelling, an applicant can seek, pursuant to s. 25(1) of the IRPA, a ministerial exemption to the statutory and regulatory requirements for admission to Canada. Such an application remains open to the Applicant. If successful, the Applicant could be reunited with his son. (Chen, above, at para. 18) 33 The Respondent says that paragraph 117(9)(d) is not a bar to family reunification, but only operates to exclude applicants for permanent residence who have not been examined. The jurisprudence establishes that the reasons why an applicant has not been examined are unimportant and that 117(9)(d) operates as a strict bar to future sponsorship under the family class.

No Error of Fact or Improper Inferences 34 The Respondent notes that H&C exemptions are exceptional and discretionary and are not designed to eliminate all hardship. Rather, they are directed at relieving unusual and undeserved or disproportionate hardship that may arise when applicants for permanent residence apply in the normal way. The Respondent says that the Applicants’ submissions only amount to a disagreement with the Officer’s conclusions and do not show actual errors of fact or improper inferences. He says that the errors Sun v. Canada (Minister of Citizenship & Immigration) James Russell J. 169

the Applicants have alleged arise from a microscopic reading of the De- cision. Contrary to the Applicants’ assertions, the Officer was aware of the Secondary Applicant’s family and business obligations in Canada. The Applicants’ disagreement with the Decision is not a proper ground for judicial review (see Karanja v. Canada (Minister of Citizenship & Immigration), 2006 FC 574 (F.C.) at paragraph 8).

The Applicants’ Reply 35 The Applicants note that the Respondent has incorrectly stated in his argument that the Principal Applicant was seventeen years old when the Secondary Applicant found out they were father and son. The Principal Applicant was actually fifteen years old when this occurred. The Appli- cants say that age is important when considering what kind of relationship will develop between two people. 36 Like the Officer, the Respondent has analysed the Applicants’ relationship only in monetary terms. Although the Principal Applicant’s mother may have contacted the Secondary Applicant about their son when she began to experience financial difficulties, this is irrelevant to the Applicants’ relationship between the Applicants. The Applicants’ actions show that their relationship was about more than monetary gain. 37 Although he argues that the Officer’s assessment of the Principal Ap- plicant’s best interests was reasonable, the Respondent has not given any examples of how she conducted this assessment. All the Officer did was to list the factors which were relevant to her analysis of the Principal Applicant’s best interests, without actually balancing these factors. 38 The Respondent has said that the Officer was aware of the Secondary Applicant’s business and family obligations in Canada. Although the CAIPS notes show that the Secondary Applicant mentioned both of these obligations in his interview, the Applicants draw a distinction between recording answers and considering the facts they disclose. The Officer did not address the Secondary Applicant’s family obligations in Canada, even though he raised them in his interview. Further, the Applicants say that the Respondent has not addressed the improper inferences they have alleged the Officer drew from the facts before her. 39 The Applicants concede that the Principal Applicant is barred from the family class by paragraph 117(9)(d) of the Regulations. However, what this case is actually about is the Officer’s treatment of their request for an H&C exemption. They say that not knowing about a child is an exceptional circumstance which was not meant to be caught by the paragraph 117(9)(d). Although theirs is a situation which seems to be appro- 170 IMMIGRATION LAW REPORTER 7 Imm. L.R. (4th)

priate for an H&C exemption, their request was refused based an unreasonable assessment and they were given inadequate reasons.

Analysis 40 In N.L.N.U., above, at paragraphs 12 to 18, the Supreme Court of Canada recently provided guidance for dealing with the adequacy of reasons of administrative tribunals: It is important to emphasize the Court’s endorsement of Professor Dyzenhaus’s observation that the notion of deference to administrative tribunal decision-making requires “a respectful attention to the reasons offered or which could be offered in support of a decision”. In his cited article, Professor Dyzenhaus explains how reasonableness applies to reasons as follows: “Reasonable” means here that the reasons do in fact or in principle support the conclusion reached. That is, even if the reasons in fact given do not seem wholly adequate to support the decision, the court must first seek to supple- ment them before it seeks to subvert them. For if it is right that among the reasons for deference are the appointment of the tribunal and not the court as the front line adjudica- tor, the tribunal’s proximity to the dispute, its expertise, etc, then it is also the case that its decision should be presumed to be correct even if its reasons are in some re- spects defective. [Emphasis added.] (David Dyzenhaus, “The Politics of Deference: Judicial Review and Democracy”, in Michael Taggart, ed., The Province of Administrative Law (1997), 279, at p. 304) See also David Mullan, “Dunsmuir v. New Brunswick, Standard of Review and Procedural Fairness for Public Servants: Let’s Try Again!” (2008), 21 C.J.A.L.P. 117, at p. 136; David Phillip Jones, Q.C., and Anne S. de Villars, Q.C., Principles of Administrative Law (5th ed. 2004), at p. 380; and Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, at para. 63. This, I think, is the context for understanding what the Court meant in Dunsmuir when it called for “justification, transparency and intelligibility”. To me, it represents a respectful appreciation that a wide range of specialized decision-makers routinely render decisions in their respective spheres of expertise, using concepts and language often unique to their areas and rendering decisions that are often counter-intuitive to a generalist. That was the basis for this Court’s new direction in Canadian Union of Public Employees, Local 963 v. Sun v. Canada (Minister of Citizenship & Immigration) James Russell J. 171

New Brunswick Liquor Corp., [1979] 2 S.C.R. 227, where Dickson J. urged restraint in assessing the decisions of specialized administrative tribunals. This decision oriented the Court towards granting greater deference to tribunals, shown in Dunsmuir’s conclusion that tribunals should “have a margin of appreciation within the range of acceptable and rational solutions” (para. 47). Read as a whole, I do not see Dunsmuir as standing for the proposition that the “adequacy” of reasons is a stand-alone basis for quashing a decision, or as advocating that a reviewing court undertake two discrete analyses — one for the reasons and a separate one for the result (Donald J. M. Brown and John M. Evans, Judicial Review of Administrative Action in Canada (looseleaf), at s. 12:5330 and 12:5510). It is a more organic exercise — the reasons must be read together with the outcome and serve the purpose of showing whether the result falls within a range of possible outcomes. This, it seems to me, is what the Court was saying in Dunsmuir when it told reviewing courts to look at “the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes” (para. 47). In assessing whether the decision is reasonable in light of the outcome and the reasons, courts must show “respect for the decision- making process of adjudicative bodies with regard to both the facts and the law” (Dunsmuir, at para. 48). This means that courts should not substitute their own reasons, but they may, if they find it necessary, look to the record for the purpose of assessing the reasonableness of the outcome. Reasons may not include all the arguments, statutory provisions, jurisprudence or other details the reviewing judge would have pre- ferred, but that does not impugn the validity of either the reasons or the result under a reasonableness analysis. A decisionmaker is not required to make an explicit finding on each constituent element, however subordinate, leading to its final conclusion (Service Employees’ International Union, Local No. 333 v. Nipawin District Staff Nurses Assn., [1975] 1 S.C.R. 382, at p. 391). In other words, if the reasons allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes, the Dunsmuir criteria are met. The fact that there may be an alternative interpretation of the agreement to that provided by the arbitrator does not inevitably lead to the conclusion that the arbitrator’s decision should be set aside if the decision itself is in the realm of reasonable outcomes. Reviewing judges should pay “respectful attention” to the decision-maker’s rea- 172 IMMIGRATION LAW REPORTER 7 Imm. L.R. (4th)

sons, and be cautious about substituting their own view of the proper outcome by designating certain omissions in the reasons to be fateful. Evans J.A. in Canada Post Corp. v. Public Service Alliance of Can- ada, 2010 FCA 56, [2011] 2 F.C.R. 221, explained in reasons upheld by this Court (2011 SCC 57) that Dunsmuir seeks to “avoid an un- duly formalistic approach to judicial review” (para. 164). He notes that “perfection is not the standard” and suggests that reviewing courts should ask whether “when read in light of the evidence before it and the nature of its statutory task, the Tribunal’s reasons adequately explain the bases of its decision” (para. 163). I found the description by the Respondents in their Factum particularly helpful in explaining the nature of the exercise: When reviewing a decision of an administrative body on the reasonableness standard, the guiding principle is deference. Reasons are not to be reviewed in a vacuum - the result is to be looked at in the context of the evidence, the parties’ submissions and the process. Reasons do not have to be perfect. They do not have to be comprehensive. [para. 44] 41 Allowing all the deference that the Supreme Court of Canada says is required, and looking at the whole context of the evidence, the Appli- cants’ submissions and the process, I cannot determine the reasons why the Officer denied the requested exemption. I also cannot determine what the Officer took to be in the Principal Applicant’s best interests. The De- cision is nothing more than a recitation of facts with a conclusion tagged on. In what appears to be the summation paragraph of the Decision, the Officer simply lists factors related to the situation in the PRC. She does not mention any benefits of the Principal Applicant coming to Canada. In the end, we have no idea of what the Officer thinks the best interests of the Principal Applicant are and no analysis to support the conclusion. The Decision is unreasonable. 42 It is well-established that an Officer must be “alert, alive and sensitive” to, and must not “minimize” the best interests of a child who may be adversely affected by their decision. See Kolosovs v. Canada (Minister of Citizenship & Immigration), 2008 FC 165 (F.C.) at paragraph 8; Baker, above, at paragraphs 73 to 75; and Owusu v. Canada (Minister of Citizenship & Immigration), 2004 FCA 38 (F.C.A.) at paragraph 5. 43 This Court has also instructed that being “alert, alive and sensitive” to a child’s best interests is a separate analysis from consideration of the threshold standards of “unusual, undeserved or disproportionate hard- Sun v. Canada (Minister of Citizenship & Immigration) James Russell J. 173

ship”. As Justice Robert Barnes said in Shchegolevich v. Canada (Minister of Citizenship & Immigration), 2008 FC 527 (F.C.) at paragraph 12: It is clear that the Officer erred by requiring that Mr. Shchegolevich establish that the adverse effects of his removal upon his spouse and his stepson would be unusual, undeserved, or disproportionate. This standard is only to be applied to the assessment of hardship experienced by an applicant from having to apply for admission to Canada from overseas; it does not apply to the assessment of the best interests of a child affected by the removal of a parent. 44 When assessing a child’s best interests, an officer must establish: first what is in the child’s best interest; second the degree to which the child’s interests are compromised by one potential decision over another; and then, finally, in light of the foregoing assessment, determine the weight that this factor plays in the ultimate balancing of positive and negative factors assessed in the H&C application. 45 There is no basic needs minimum which if met satisfies the best interests test. Furthermore, there is no hardship threshold such that if the circumstances of the child reach a certain point on that hardship scale only then will a child’s best interests be so significantly negatively impacted as to warrant positive consideration. The question is not, “is the child suffering enough that his ‘best interests are not being met’”? It is also not, “is the child surviving where he is?” The question at the initial stage of the assessment is, “what is in the child’s best interests?” 46 In Baker, Justice Claire L’Heureux-Dub´e held that: for the exercise of the discretion to fall within the standard of reasonableness, the decision-maker should consider children’s best interests as an important factor, give them substantial weight, and be alert, alive and sensitive to them. That is not to say that children’s best interests must always outweigh other considerations, or that there will not be other reasons for denying an H & C claim even when children’s interests are given this consideration. However, where the interests of children are minimized, in a manner inconsistent with Canada’s humanitarian and compassionate tradition and the Min- ister’s guidelines, the decision will be unreasonable. [emphasis added] 47 In Kolosovs, above, at paragraph 12, Justice Douglas Campbell described what it means to be “sensitive” to the best interests of children in the following terms: It is only after a visa officer has gained a full understanding of the real life impact of a negative H&C decision on the best interests of a 174 IMMIGRATION LAW REPORTER 7 Imm. L.R. (4th)

child can the officer give those best interests sensitive consideration. To demonstrate sensitivity, the officer must be able to clearly articu- late the suffering of a child that will result from a negative decision, and then say whether, together with a consideration of other factors, the suffering warrants humanitarian and compassionate relief. [emphasis added] 48 The Decision in the present case shows no awareness of what is required in any such analysis, so it is unreasonable and incomprehensible, and must be returned for reconsideration. 49 Counsel agree there is no question for certification and the Court concurs.

Judgment THIS COURT’S JUDGMENT is that 1. Application is allowed. The Decision is quashed and the matter is returned for reconsideration by a different officer. 2. There is no question for certification. Application granted.