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

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[Indexed as: Ezokola c. Canada (Ministre de la Citoyennet´e & de l’Immigration)] Rachidi Ekanza Ezokola, Appellant and Minister of Citizenship and Immigration, Respondent and United Nations High Commissioner for Refugees, Amnesty International, Canadian Centre for International Justice, International Human Rights Program at the University of Toronto Faculty of Law, Canadian Council for Refugees, Canadian Civil Liberties Association and Canadian Association of Refugee Lawyers, Interveners Supreme Court of Canada Docket: 34470 2013 SCC 40 McLachlin C.J.C., LeBel, Fish, Abella, Rothstein, Cromwell, Moldaver, Karakatsanis, Wagner JJ. Heard: January 17, 2013 Judgment: July 19, 2013 Immigration and citizenship –––– Refugee protection — Elements of pro- tected refugee status — Grounds — Political opinion — Miscellaneous –––– Refugee claimant was government minister in home country of Democratic Re- public of Congo (“DRC”) — Claimant was assigned to post at United Nations in New York — Claimant’s application for refugee status was dismissed — Immi- gration and Refugee Board found government of DRC was involved in crimes against humanity during period claimant worked for government — Board found claimant had knowledge of crimes and was therefore complicit, notwith- standing his lack of personal involvement and known opposition to govern- ment — Claimant’s application for judicial review was granted — Application judge found that, although claimant had knowledge of crimes, he was not com- plicit to level that would disqualify him from entering Canada — On appeal by Minister of Citizenship and Immigration appellate court determined that appro- priate test to be applied was whether or not claimant had “personal and knowing participation” in crimes committed — Matter was remitted to differently consti- tuted panel of board — Claimant further appealed — Appeal allowed — Con- cept of complicity had been overextended in Canada — Refugee claimants were not to be excluded from refugee protection under art. 1F(a) of United Nations Convention Relating to the Status of Refugees, 1951 for complicity in interna- tional crimes unless claimant voluntarily made knowing and significant contri- bution to crime or criminal purpose of group — Contribution-based test for complicity to be applied which would require voluntary, knowing, and signifi- cant contribution to crime or criminal purpose of group — Test for complicity 176 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th) had to promote broad humanitarian goals of Refugee Convention while protect- ing integrity of international refugee protection — To establish complicity under international law nexus must exist between individual’s contribution and group’s crime or criminal purpose — Key components of contribution-based test included voluntariness of claimant’s contribution to crime or criminal purpose and degree of association between claimant and group — Six factors were iden- tified and to be applied when assessing whether or not refugee claimant volunta- rily made significant and knowing contribution to crime or criminal purpose — Matter remitted to differently constituted panel to apply contribution-based test for complicity. Immigration and citizenship –––– Refugee protection — Elements of pro- tected refugee status — Exclusion clauses — War crimes or crimes against humanity –––– Refugee claimant was government minister in home country of Democratic Republic of Congo (“DRC”) — Claimant was assigned to post at United Nations in New York — Claimant’s application for refugee status was dismissed — Immigration and Refugee Board found government of DRC was involved in crimes against humanity during period claimant worked for govern- ment — Board found claimant had knowledge of crimes and was therefore com- plicit, notwithstanding his lack of personal involvement and known opposition to government — Claimant’s application for judicial review was granted — Ap- plication judge found that, although claimant had knowledge of crimes, he was not complicit to level that would disqualify him from entering Canada — On appeal by Minister of Citizenship and Immigration appellate court determined that appropriate test to be applied was whether or not claimant had “personal and knowing participation” in crimes committed — Matter was remitted to dif- ferently constituted panel of board — Claimant further appealed — Appeal al- lowed — Concept of complicity had been overextended in Canada — Refugee claimants were not to be excluded from refugee protection under art. 1F(a) of United Nations Convention Relating to the Status of Refugees, 1951 for com- plicity in international crimes unless claimant voluntarily made knowing and significant contribution to crime or criminal purpose of group — Contribution- based test for complicity to be applied which would require voluntary, knowing, and significant contribution to crime or criminal purpose of group — Test for complicity had to promote broad humanitarian goals of Refugee Convention while protecting integrity of international refugee protection — To establish complicity under international law nexus must exist between individual’s contri- bution and group’s crime or criminal purpose — Key components of contribu- tion-based test included voluntariness of claimant’s contribution to crime or criminal purpose and degree of association between claimant and group — Six factors were identified and to be applied when assessing whether or not refugee claimant voluntarily made significant and knowing contribution to crime or criminal purpose — Matter remitted to differently constituted panel to apply contribution-based test for complicity. Ezokola c. Canada 177

International law –––– Application of international law — Requirement for incorporation in domestic legislation –––– Refugee claimant was government minister in home country of Democratic Republic of Congo (“DRC”) — Claim- ant was assigned to post at United Nations in New York — Claimant’s applica- tion for refugee status was dismissed — Immigration and Refugee Board found government of DRC was involved in crimes against humanity during period claimant worked for government — Board found claimant had knowledge of crimes and was therefore complicit, notwithstanding his lack of personal in- volvement and known opposition to government — Claimant’s application for judicial review was granted — Application judge found that, although claimant had knowledge of crimes, he was not complicit to level that would disqualify him from entering Canada — On appeal by Minister of Citizenship and Immi- gration appellate court determined that appropriate test to be applied was whether or not claimant had “personal and knowing participation” in crimes committed — Matter was remitted to differently constituted panel of board — Claimant further appealed — Appeal allowed — Concept of complicity had been overextended in Canada — Refugee claimants were not to be excluded from refugee protection under art. 1F(a) of United Nations Convention Relating to the Status of Refugees, 1951 for complicity in international crimes unless claimant voluntarily made knowing and significant contribution to crime or criminal purpose of group — Contribution-based test for complicity to be ap- plied which would require voluntary, knowing, and significant contribution to crime or criminal purpose of group — Test for complicity had to promote broad humanitarian goals of Refugee Convention while protecting integrity of interna- tional refugee protection — To establish complicity under international law nexus must exist between individual’s contribution and group’s crime or crimi- nal purpose — Key components of contribution-based test included voluntari- ness of claimant’s contribution to crime or criminal purpose and degree of asso- ciation between claimant and group — Six factors were identified and to be applied when assessing whether or not refugee claimant voluntarily made signif- icant and knowing contribution to crime or criminal purpose — Matter remitted to differently constituted panel to apply contribution-based test for complicity. Immigration et citoyennet´e –––– Protection aux r´efugi´es — Nature de la protection du statut de r´efugi´e — Motifs — Opinion politique — Di- vers –––– Demandeur du statut de r´efugi´e etait´ ministre au sein du gouvernement de la R´epublique d´emocratique du Congo (« RDC »), son pays natal — De- mandeur a et´´ e nomm´e a` un poste au sein des Nations Unies a` New York — Sa demande d’asile en qualit´e de r´efugi´e a et´´ e rejet´ee — Commission de l’immigration et du statut de r´efugi´e a statu´e que le gouvernement de la RDC avait commis des crimes contre l’humanit´e au cours de la p´eriode o`u le de- mandeur travaillait pour lui — Commission a conclu que le demandeur avait connaissance de ces crimes et etait,´ par cons´equent, complice, sans egard´ au fait qu’il n’avait pas et´´ e personnellement un participant et a` son opposition notoire 178 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th) au gouvernement — Requˆete du demandeur en contrˆole judiciaire a et´´ e ac- cord´ee — Juge des requˆetes a conclu que le demandeur, bien qu’´etant au courant des crimes, n’´etait pas complice au point d’ˆetre interdit de s´ejour au Canada — Ministre de la Citoyennet´e et de l’Immigration a interjet´e appel et la Cour d’appel a statu´e que le crit`ere appropri´e etait´ celui permettant de d´eterminer si le demandeur avait [TRADUCTION] « particip´e de mani`ere personnelle et con- sciente » aux crimes commis — Dossier a et´´ e renvoy´e a` une formation diff´er- ente de la commission — Demandeur a form´e un pourvoi — Pourvoi ac- cueilli — Notion de complicit´e a et´´ e indˆument elargie´ au Canada — Demandeurs du statut de r´efugi´e ne devraient pas etreˆ d´eclar´es inadmissibles a` la protection accord´ee aux r´efugi´es en vertu de l’art. 1Fa) de la Convention des Nations Unies relative au statut de r´efugi´es de 1951 pour cause de complicit´e dans la perp´etration de crimes internationaux, a` moins que le demandeur ait volontairement apport´e une contribution consciente et significative aux crimes ou au dessein criminel du groupe qui les aurait commis — Crit`ere ax´e sur la contribution qui devait etreˆ appliqu´e requerrait une contribution a` la fois volontaire, consciente et significative au crime ou au dessein criminel d’un groupe — Crit`ere de complicit´e devait promouvoir les grands objectifs humanitaires de la Convention relative aux r´efugi´es tout en prot´egeant l’int´egrit´e de la protection internationale accord´ee aux r´efugi´es — Pour qu’il y ait complic- it´e en vertu du droit international, il doit y avoir un lien entre la contribution de l’individu au crime ou dessein criminel du groupe — Parmi les el´´ ements cl´es du crit`ere ax´e sur la contribution, il y avait le caract`ere volontaire de la contribution du demandeur au crime ou au dessein criminel du groupe ainsi que le degr´e d’association entre le demandeur et le groupe — Six facteurs ont et´´ e identifi´es et devaient etreˆ appliqu´es dans l’analyse visant a` d´eterminer si un demandeur du statut de r´efugi´e a ou non volontairement apport´e une contribution significative et consciente a` un crime ou a` un dessein criminel — Dossier a et´´ e renvoy´e a` un tribunal diff´eremment constitu´e afin qu’il applique le crit`ere ax´e sur la contribu- tion permettant de d´eterminer s’il y a eu complicit´e. Immigration et citoyennet´e –––– Protection aux r´efugi´es — Nature de la protection du statut de r´efugi´e — Clauses d’exclusion — Crimes de guerre ou crimes contre l’humanit´e –––– Demandeur du statut de r´efugi´e etait´ ministre au sein du gouvernement de la R´epublique d´emocratique du Congo (« RDC »), son pays natal — Demandeur a et´´ e nomm´e a` un poste au sein des Nations Unies a` New York — Sa demande d’asile en qualit´e de r´efugi´e a et´´ e rejet´ee — Com- mission de l’immigration et du statut de r´efugi´e a statu´e que le gouvernement de la RDC avait commis des crimes contre l’humanit´e au cours de la p´eriode o`u le demandeur travaillait pour lui — Commission a conclu que le demandeur avait connaissance de ces crimes et etait,´ par cons´equent, complice, sans egard´ au fait qu’il n’avait pas et´´ e personnellement un participant et a` son opposition notoire au gouvernement — Requˆete du demandeur en contrˆole judiciaire a et´´ e ac- cord´ee — Juge des requˆetes a conclu que le demandeur, bien qu’´etant au courant Ezokola c. Canada 179 des crimes, n’´etait pas complice au point d’ˆetre interdit de s´ejour au Canada — Ministre de la Citoyennet´e et de l’Immigration a interjet´e appel et la Cour d’appel a statu´e que le crit`ere appropri´e etait´ celui permettant de d´eterminer si le demandeur avait [TRADUCTION] « particip´e de mani`ere personnelle et con- sciente » aux crimes commis — Dossier a et´´ e renvoy´e a` une formation diff´er- ente de la commission — Demandeur a form´e un pourvoi — Pourvoi ac- cueilli — Notion de complicit´e a et´´ e indˆument elargie´ au Canada — Demandeurs du statut de r´efugi´e ne devraient pas etreˆ d´eclar´es inadmissibles a` la protection accord´ee aux r´efugi´es en vertu de l’art. 1Fa) de la Convention des Nations Unies relative au statut de r´efugi´es de 1951 pour cause de complicit´e dans la perp´etration de crimes internationaux, a` moins que le demandeur ait volontairement apport´e une contribution consciente et significative aux crimes ou au dessein criminel du groupe qui les aurait commis — Crit`ere ax´e sur la contribution qui devait etreˆ appliqu´e requerrait une contribution a` la fois volontaire, consciente et significative au crime ou au dessein criminel d’un groupe — Crit`ere de complicit´e devait promouvoir les grands objectifs humanitaires de la Convention relative aux r´efugi´es tout en prot´egeant l’int´egrit´e de la protection internationale accord´ee aux r´efugi´es — Pour qu’il y ait complic- it´e en vertu du droit international, il doit y avoir un lien entre la contribution de l’individu au crime ou dessein criminel du groupe — Parmi les el´´ ements cl´es du crit`ere ax´e sur la contribution, il y avait le caract`ere volontaire de la contribution du demandeur au crime ou au dessein criminel du groupe ainsi que le degr´e d’association entre le demandeur et le groupe — Six facteurs ont et´´ e identifi´es et devaient etreˆ appliqu´es dans l’analyse visant a` d´eterminer si un demandeur du statut de r´efugi´e a ou non volontairement apport´e une contribution significative et consciente a` un crime ou a` un dessein criminel — Dossier a et´´ e renvoy´e a` un tribunal diff´eremment constitu´e afin qu’il applique le crit`ere ax´e sur la contribu- tion permettant de d´eterminer s’il y a eu complicit´e. Droit international –––– Application du droit international — Exigence de l’int´egration dans le droit national –––– Demandeur du statut de r´efugi´e etait´ ministre au sein du gouvernement de la R´epublique d´emocratique du Congo (« RDC »), son pays natal — Demandeur a et´´ e nomm´e a` un poste au sein des Nations Unies a` New York — Sa demande d’asile en qualit´e de r´efugi´e a et´´ e rejet´ee — Commission de l’immigration et du statut de r´efugi´e a statu´e que le gouvernement de la RDC avait commis des crimes contre l’humanit´e au cours de la p´eriode o`u le demandeur travaillait pour lui — Commission a conclu que le demandeur avait connaissance de ces crimes et etait,´ par cons´equent, complice, sans egard´ au fait qu’il n’avait pas et´´ e personnellement un participant et a` son opposition notoire au gouvernement — Requˆete du demandeur en contrˆole judiciaire a et´´ e accord´ee — Juge des requˆetes a conclu que le demandeur, bien qu’´etant au courant des crimes, n’´etait pas complice au point d’ˆetre interdit de s´ejour au Canada — Ministre de la Citoyennet´e et de l’Immigration a interjet´e appel et la Cour d’appel a statu´e que le crit`ere appropri´e etait´ celui permettant de 180 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th) d´eterminer si le demandeur avait [TRADUCTION] « particip´e de mani`ere per- sonnelle et consciente » aux crimes commis — Dossier a et´´ e renvoy´e a` une for- mation diff´erente de la commission — Demandeur a form´e un pourvoi — Pourvoi accueilli — Notion de complicit´e a et´´ e indˆument elargie´ au Canada — Demandeurs du statut de r´efugi´e ne devraient pas etreˆ d´eclar´es inadmissibles a` la protection accord´ee aux r´efugi´es en vertu de l’art. 1Fa) de la Convention des Nations Unies relative au statut de r´efugi´es de 1951 pour cause de complicit´e dans la perp´etration de crimes internationaux, a` moins que le demandeur ait volontairement apport´e une contribution consciente et significative aux crimes ou au dessein criminel du groupe qui les aurait commis — Crit`ere ax´e sur la contribution qui devait etreˆ appliqu´e requerrait une contribution a` la fois volontaire, consciente et significative au crime ou au dessein criminel d’un groupe — Crit`ere de complicit´e devait promouvoir les grands objectifs humanitaires de la Convention relative aux r´efugi´es tout en prot´egeant l’int´egrit´e de la protection internationale accord´ee aux r´efugi´es — Pour qu’il y ait complic- it´e en vertu du droit international, il doit y avoir un lien entre la contribution de l’individu au crime ou dessein criminel du groupe — Parmi les el´´ ements cl´es du crit`ere ax´e sur la contribution, il y avait le caract`ere volontaire de la contribution du demandeur au crime ou au dessein criminel du groupe ainsi que le degr´e d’association entre le demandeur et le groupe — Six facteurs ont et´´ e identifi´es et devaient etreˆ appliqu´es dans l’analyse visant a` d´eterminer si un demandeur du statut de r´efugi´e a ou non volontairement apport´e une contribution significative et consciente a` un crime ou a` un dessein criminel — Dossier a et´´ e renvoy´e a` un tribunal diff´eremment constitu´e afin qu’il applique le crit`ere ax´e sur la contribu- tion permettant de d´eterminer s’il y a eu complicit´e. The refugee claimant began his career with the government of the Democratic Republic of Congo (“DRC”) in 1999. He initially worked in a financial advisory capacity in various positions in the DRC. The claimant and his family moved to New York in 2004 where he worked with the Permanent Mission of the DRC. The claimant resigned in 2008 and sought Convention refugee protection in Canada. The Immigration and Refugee Board excluded the claimant from the definition of refugee on the grounds that the government of the DRC had com- mitted crimes against humanity. The board found the claimant was complicit in these crimes and had “personal and knowing awareness” of the crimes commit- ted by his government. The claimant’s application for judicial review was granted. The application judge found there was no evidence the claimant had incited or actively sup- ported crimes perpetrated by the government. Without the requisite nexus, the claimant could not be found complicit in the crimes. On appeal it was deter- mined that the appropriate test to be applied was whether or not the claimant had “personal and knowing participation” in the crimes committed. The matter was remitted to a differently constituted panel of the board to apply the “personal and knowing participation” test. The claimant further appealed. Ezokola c. Canada 181

Held: The appeal was allowed. Per LeBel, Fish JJ. (McLachlin C.J.C, Abella, Rothstein, Cromwell, Moldaver, Karakatsanis, Wagner JJ. concurring): Refugee claimants are not to be excluded from refugee protection under art. 1F(a) of the United Nations Convention Re- lating to the Status of Refugees, 1951 for complicity in international crimes un- less the claimant voluntarily made a knowing and significant contribution to the crime or criminal purpose of the group. The concept of complicity had recently been overextended in Canada. A need therefore existed to “rein in” the current approach to complicity under art. 1F(a) to ensure that exclusion from refugee status was not triggered by mere association between an individual and those who had perpetrated international crimes. The Canadian approach to art. 1F(a) should reflect the “overarching and clear human rights object and purpose” set out in the Refugee Convention. The test for complicity had to promote the broad humanitarian goals of the Ref- ugee Convention while protecting the integrity of international refugee protec- tion. It was critical to ensure that those who perpetrated crimes against peace, war crimes, and crimes against humanity were not able to exploit the system. These aims could be balanced by applying a contribution-based test for complic- ity, which would require a voluntary, knowing, and significant contribution to the crime or criminal purpose of a group. International law was a relevant consideration both in determining the elements of the offences and their potential modes of commission. Focus was placed on the most recent codification of international criminal law in the Rome Statute of the International Criminal Court, 1998. Common purpose liability under art. 25 ¶ 3(d) of the Rome Statute and joint criminal enterprise developed in the ad hoc jurisprudence were relevant to the complicity analysis. Common purpose, as set out in art. 25 ¶ 3(d), does not include every contribution, regardless of how mi- nor, to the perpetration of a crime. It requires that a contribution must be signifi- cant. Consequently, complicity under art. 25 ¶ 3(d) is not based on association with a group, but on an individual intentionally or knowingly contributing to the group’s crime or criminal purpose. Like common purpose liability, joint crimi- nal enterprise includes lesser contributions to a crime than the acts of aiding and abetting. For the three types of joint criminal enterprise identified, the actus reus is a significant contribution to the criminal enterprise. Mens rea will vary be- tween the three types. However, at no point does joint criminal enterprise in- clude the actions of individuals based only on their rank or association within an organization or an institution. International law requires that, to establish com- plicity, a nexus must exist between an individual’s contribution and the group’s crime or criminal purpose. Passive membership is not sufficient to establish complicity. The reasons of the appellate court could be interpreted as overextending the ap- proach to complicity. The appellate court’s reasons provided the basis to deter- 182 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

mine a refugee claimant’s complicity even if he or she had neither committed a guilty act nor had criminal knowledge or intent other than being aware of illegal acts committed by a group with whom he or she was associated. Any concept of complicity that permitted guilt by association or passive acquiescence violated two fundamental criminal law principles. Exclusion of a refugee claimant under art. 1F(a) required the claimant to voluntarily make a significant and knowing contribution to the group’s crime or criminal purpose. Key components of the contribution-based test include the voluntariness of the claimant’s contribution to the crime or criminal purpose and the degree of association between the claimant and the group. The refugee claimant must be aware of the group’s crime or criminal purpose and aware that his or her conduct will assist in the furtherance of the crime or criminal purpose. In assessing whether or not a refugee claimant has voluntarily made a significant and knowing contribution to a crime or criminal purpose, the following factors should be assessed: (i) the size and nature of the organization; (ii) the part of the organization with which the refugee claimant was most directly concerned; (iii) the refugee claimant’s duties and activities within the organization; (iv) the refu- gee claimant’s position or rank in the organization; (v) the length of time the refugee claimant was in the organization, particularly after acquiring knowledge of the group’s crime or criminal purpose; and (vi) the method by which the refu- gee claimant was recruited and the refugee claimant’s opportunity to leave the organization. The contribution-based test for complicity should apply the unique evidentiary standard in art. 1F(a) in which the decider must determine if there are “serious reasons for considering” that a refugee claimant has committed war crimes, crimes against humanity or crimes against peace. The matter was remit- ted to a differently constituted panel to apply the contribution-based test for complicity. Le demandeur du statut de r´efugi´e a commenc´e sa carri`ere au sein du gouverne- ment de la R´epublique d´emocratique du Congo (« RDC ») en 1999. Il a d’abord occup´e diverses fonctions a` titre d’attach´e financier en RDC. Le demandeur et sa famille ont quitt´e pour New York en 2004 o`u il s’est joint a` la Mission permanente de la RDC. Le demandeur a d´emissionn´e en 2008 et a pr´esent´e une demande d’asile au Canada en qualit´e de r´efugi´e au sens de la Convention. La Commission de l’immigration et du statut de r´efugi´e a statu´e que le demandeur ne correspondait pas a` la d´efinition de r´efugi´e au motif que le gouvernement de la RDC avait commis des crimes contre l’humanit´e. La commission a conclu que le demandeur etait´ complice de ces crimes et avait une « connaissance per- sonnelle et consciente » des crimes commis par son gouvernement. La requˆete du demandeur en contrˆole judiciaire a et´´ e accord´ee. Le juge des re- quˆetes a conclu qu’il n’y avait aucune preuve que le demandeur avait encourag´e ou activement soutenu le gouvernement dans la perp´etration des crimes. Sans le lien exig´e, le demandeur ne pouvait pas etreˆ d´eclar´e complice des crimes. La Ezokola c. Canada 183

Cour d’appel a statu´e que le crit`ere appropri´e etait´ celui permettant de d´eter- miner si le demandeur avait [TRADUCTION] « particip´e de mani`ere person- nelle et consciente » aux crimes commis. Le dossier a et´´ e renvoy´e a` une forma- tion diff´erente de la commission pour qu’elle applique le crit`ere fond´e sur la « participation personnelle et consciente ». Le demandeur a form´e un pourvoi. Arrˆet: Le pourvoi a et´´ e accueilli. LeBel, Fish, JJ. (McLachlin, J.C.C., Abella, Rothstein, Cromwell, Moldaver, Karakatsanis, Wagner, JJ., souscrivant a` leur opinion) : Les demandeurs du statut de r´efugi´e ne doivent pas etreˆ d´eclar´es inadmissibles a` la protection ac- cord´ee aux r´efugi´es en vertu de l’art. 1Fa) de la Convention des Nations Unies relative au statut de r´efugi´es de 1951 pour cause de complicit´e dans la perp´etra- tion de crimes internationaux, a` moins que le demandeur ait volontairement ap- port´e une contribution consciente et significative aux crimes ou au dessein criminel du groupe qui les aurait commis. La notion de complicit´e a r´ecemment et´´ e indˆument elargie´ au Canada. Aussi, il etait´ n´ecessaire de resserrer de la no- tion de complicit´e telle qu’elle etait´ con¸cue pour les besoins de l’art. 1Fa) afin qu’une personne ne se voit pas refuser la protection des r´efugi´es pour le seul motif qu’elle est associ´ee a` l’auteur de crimes internationaux. Au Canada, l’interpr´etation de l’art. 1Fa) doit tenir compte de « [c]es objets et [de] ces buts g´en´eraux, nettement en rapport avec les droits de la personne » etablis´ dans la Convention relative aux r´efugi´es. Le crit`ere de complicit´e devait promouvoir les grands objectifs humanitaires de la Convention relative aux r´efugi´es tout en prot´egeant l’int´egrit´e de la protection internationale accord´ee aux r´efugi´es. Il etait´ important de veiller a` ce que l’auteur d’un crime contre la paix, d’un crime de guerre ou d’un crime contre l’humanit´e ne puisse pas tirer avantage du r´egime. Il est possible d’´etablir un equilibre´ entre ces objectifs en appliquant un crit`ere qui requiert une contribu- tion a` la fois volontaire, consciente et significative au crime ou au dessein criminel d’un groupe afin de d´eterminer la complicit´e. Le droit international etait´ un fondement appropri´e pour d´eterminer tant les el´´ e- ments de l’infraction que ses diff´erents modes de perp´etration. La Cour s’est surtout appuy´ee sur la plus r´ecente codification du droit p´enal international que constitue le Statut de Rome de la Cour p´enale internationale de 1998. Il fallait tenir compte du fait d’agir de concert dans un dessein commun, suivant l’art. 25- 3-d du Statut de Rome et de l’entreprise criminelle conjointe, notion issue de la jurisprudence des tribunaux ad hoc, dans l’analyse portant sur la complicit´e. Toute contribution a` la perp´etration d’un crime, aussi minime soit-elle, ne tombe pas sous le coup de l’art. 25-3-d etablissant´ le fait d’agir de concert dans un dessein commun. Il faut que la contribution soit significative. En cons´equence, suivant l’art. 25-3-d, la complicit´e n’est pas li´ee a` une association a` un groupe, mais a` la contribution intentionnelle ou consciente aux crimes ou au dessein criminel de ce groupe. La responsabilit´e d´ecoulant de l’entreprise criminelle 184 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

commune, comme celle fond´ee sur le dessein commun et vis´ee a` l’art. 25-3-d, requiert une contribution moindre a` la commission d’un crime que celle li´ee au fait d’aider ou d’encourager. Pour les trois types d’entreprise criminelle com- mune identifi´es, l’actus reus est une contribution significative a` l’entreprise criminelle. La mens rea n’est pas la mˆeme pour les trois types. Toutefois, le seul fait d’exercer des fonctions dans une organisation ou une institution ou d’ˆetre associ´ee a` celle-ci n’´equivaut pas a` une entreprise criminelle. Selon le droit in- ternational, il doit y avoir un lien entre la contribution d’un individu et le crime ou dessein criminel d’un groupe pour qu’il y ait complicit´e. L’appartenance pas- sive au groupe ne suffit pas pour qu’il y ait complicit´e. On pourrait interpr´eter les motifs de la Cour d’appel comme un elargissement´ indu de la notion de complicit´e. Les motifs de la Cour d’appel etablissaient´ le fondement permettant de conclure a` la complicit´e d’un demandeur du statut de r´efugi´e alors mˆeme qu’il n’a accompli aucun acte coupable et n’a eu aucune connaissance ou intention criminelle, mais a seulement su que d’autres membres du groupe auquel il etait´ associ´e avaient commis des actes ill´egaux. Toute con- ception de la complicit´e susceptible de s’entendre de la culpabilit´e par associa- tion ou de l’acquiescement passif allait a` l’encontre de deux principes fonda- mentaux du droit p´enal. Pour refuser l’asile a` un demandeur du statut de r´efugi´e sur le fondement de l’art. 1Fa), il fallait que le demandeur ait volontairement contribu´e de mani`ere significative et consciente aux crimes ou au dessein criminel d’un groupe. Les caract´eristiques cl´es du crit`ere ax´e sur la contribution comprennent le caract`ere volontaire de la contribution du demandeur aux crimes ou au dessein criminel et le degr´e d’association entre le demandeur et le groupe. Le demandeur du statut de r´efugi´e doit etreˆ au courant du crime ou du dessein criminel du groupe et savoir que son comportement facilitera la perp´etration des crimes ou la r´ealisation du dessein criminel. Il faut tenir compte des el´´ ements suivants dans l’analyse visant a` d´eterminer si un demandeur du statut de r´efugi´e a ou non volontairement apport´e une contri- bution significative et consciente a` un crime ou a` un dessein criminel : i) la taille et la nature de l’organisation; ii) la section de l’organisation a` laquelle le de- mandeur du statut de r´efugi´e etait´ le plus directement associ´e; iii) les fonctions et les activit´es du demandeur du statut de r´efugi´e au sein de l’organisation; iv) le poste ou le grade du demandeur du statut de r´efugi´e au sein de l’organisation; v) la dur´ee de l’appartenance du demandeur du statut de r´efugi´e a` l’organisation (surtout apr`es qu’il a pris connaissance de ses crimes ou de son dessein criminel); et vi) le mode de recrutement du demandeur du statut de r´efugi´e et la possibilit´e qu’il a eu ou non de quitter l’organisation. Le crit`ere ax´e sur la contri- bution pour d´eterminer s’il y a eu complicit´e devrait etreˆ appliqu´e en fonction de la norme de preuve particuli`ere etablie´ a` l’art. 1Fa), en vertu de laquelle le d´ecideur d´etermine s’il existe des « raisons s´erieuses de penser » que le de- mandeur du statut de r´efugi´e a commis un crime de guerre, un crime contre l’humanit´e ou un crime contre la paix. Le dossier a et´´ e renvoy´e a` un tribunal Ezokola c. Canada 185

diff´eremment constitu´e afin qu’il applique le crit`ere ax´e sur la contribution permettant de d´eterminer s’il y a eu complicit´e. Cases considered by LeBel, Fish JJ.: Fabela v. Canada (Minister of Citizenship & Immigration) (2005), 2005 FC 1028, 2005 CarswellNat 2097, 277 F.T.R. 20 (Eng.), 2005 CF 1028, 2005 CarswellNat 4504, [2005] F.C.J. No. 1277 (F.C.) — considered Harb c. Canada (Ministre de la Citoyennet´e & de l’Immigration) (2003), 2003 FCA 39, (sub nom. Harb v. Canada (Ministre de la Citoyennet´e & de l’Immigration)) 238 F.T.R. 194 (note), 2003 CarswellNat 1279, 2003 Car- swellNat 180, 2003 CAF 39, (sub nom. Harb v. Canada (Ministre de la Citoyennet´e & de l’Immigration)) 302 N.R. 178, 27 Imm. L.R. (3d) 1, [2003] F.C.J. No. 108 (Fed. C.A.) — considered Kumar v. Canada (Minister of Citizenship & Immigration) (2009), 2009 FC 643, 2009 CarswellNat 1870, 2009 CF 643, 2009 CarswellNat 4885, [2009] F.C.J. No. 811, [2009] A.C.F. No. 811 (F.C.) — considered Moreno v. Canada (Minister of Employment & Immigration) (1993), 159 N.R. 210, 107 D.L.R. (4th) 424, 1993 CarswellNat 124, 1993 CarswellNat 1343, 21 Imm. L.R. (2d) 221, [1994] 1 F.C. 298, [1993] F.C.J. No. 912 (Fed. C.A.) — considered Mpia-Mena-Zambili c. Canada (Ministre de la Citoyennet´e & de l’Immigration) (2005), 2005 FC 1349, 2005 CF 1349, 2005 CarswellNat 3121, (sub nom. Mpia-Mena-Zambili v. Canada (Minister of Citizenship & Immigration)) 281 F.T.R. 54 (Eng.), 2005 CarswellNat 5831 (F.C.) — considered Mugesera c. Canada (Ministre de la Citoyennet´e & de l’Immigration) (2005), (sub nom. Mugesera v. Canada (Minister of Citizenship & Immigration)) 197 C.C.C. (3d) 233, 2005 SCC 40, 2005 CarswellNat 1740, 2005 Car- swellNat 1741, 254 D.L.R. (4th) 200, 28 Admin. L.R. (4th) 161, 30 C.R. (6th) 39, (sub nom. Mugesera v. Canada (Minister of Citizenship & Immi- gration)) 335 N.R. 229, 47 Imm. L.R. (3d) 16, [2005] 2 S.C.R. 100, [2005] S.C.J. No. 39, EYB 2005-91971 (S.C.C.) — considered Osagie v. Canada (Minister of Citizenship & Immigration) (2000), 2000 Car- swellNat 1476, 186 F.T.R. 143, 2000 CarswellNat 5737, [2000] A.C.F. No. 1133, [2000] F.C.J. No. 1133 (Fed. T.D.) — considered Prosecutor v. Brdanin (April 3, 2007), Doc. IT-99-36-A (Int. Criminal Trib.) — referred to Prosecutor v. Dyilo (January 29, 2007), Doc. ICC-01/04-01/06-803-tEN (Int. Criminal Ct.) — referred to Prosecutor v. Dyilo (March 14, 2012), Doc. ICC-01/04-01/06-2842 (Int. Crimi- nal Ct.) — referred to Prosecutor v. Gombo (June 15, 2009), Doc. ICC-01/05-01/08-424 (Int. Criminal Ct.) — considered Prosecutor v. Mbarushimana (December 16, 2011), Doc. ICC-01/04-01/10-465- Red (Int. Criminal Ct.) — referred to 186 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

Prosecutor v. Mbarushimana (May 30, 2012), Doc. ICC-01/04-01/10-514 (Int. Criminal Ct.) — referred to Prosecutor v. Ruto (January 23, 2012), Doc. ICC-01/09-01/11-373 (Int. Crimi- nal Ct.) — referred to Prosecutor v. Staniic (May 30, 2013), Doc. IT-03-69-T (Int. Criminal Trib.) — considered Prosecutor v. Tadic (July 15, 1999), Doc. IT-94-1 (Int. Criminal Trib.) — re- ferred to Pushpanathan v. Canada (Minister of Employment & Immigration) (1998), 43 Imm. L.R. (2d) 117, 226 N.R. 201, (sub nom. Pushpanathan v. Canada (Minister of Citizenship & Immigration)) 160 D.L.R. (4th) 193, (sub nom. Pushpanathan v. Canada (Minister of Citizenship & Immigration)) [1998] 1 S.C.R. 982, 11 Admin. L.R. (3d) 1, 6 B.H.R.C. 387, [1999] I.N.L.R. 36, 1998 CarswellNat 830, 1998 CarswellNat 831, [1998] S.C.J. No. 46 (S.C.C.) — followed R. (on the application of JS (Sri Lanka)) v. Secretary of State for the Home Department (2010), [2010] UKSC 15, [2010] All E.R. 151, [2011] A.C. 184 (U.K. S.C.) — considered Ramirez v. Canada (Minister of Employment & Immigration) (1992), 89 D.L.R. (4th) 173, [1992] 2 F.C. 306, 135 N.R. 390, 1992 CarswellNat 94, 1992 Car- swellNat 94F, [1992] F.C.J. No. 109 (Fed. C.A.) — considered Ryivuze c. Canada (Ministre de la Citoyennet´e & de l’Immigration) (2007), 2007 FC 134, 2007 CarswellNat 5323, 2007 CF 134, 2007 CarswellNat 295, (sub nom. Ryivuze v. Canada (Minister of Citizenship & Immigration)) 325 F.T.R. 30 (Eng.), [2007] F.C.J. No. 186, [2007] A.C.F. No. 186 (F.C.) — considered Sivakumar v. Canada (Minister of Employment & Immigration) (1993), 1993 CarswellNat 242, 1993 CarswellNat 242F, 163 N.R. 197, [1994] 1 F.C. 433, [1993] F.C.J. No. 1145 (Fed. C.A.) — considered Thamotharem v. Canada (Minister of Citizenship & Immigration) (2007), 2007 CarswellNat 2817, 64 Imm. L.R. (3d) 226, 60 Admin. L.R. (4th) 247, [2008] 1 F.C.R. 385, 2007 CarswellNat 1391, 2007 FCA 198, 2007 CAF 198, 366 N.R. 301, [2007] F.C.J. No. 734 (F.C.A.) — considered Zrig c. Canada (Ministre de la Citoyennet´e & de l’Immigration) (2003), 2003 CAF 178, 2003 CarswellNat 924, 32 Imm. L.R. (3d) 1, 2003 FCA 178, (sub nom. Zrig v. Canada (Minister of Citizenship & Immigration)) 229 D.L.R. (4th) 235, 239 F.T.R. 319 (note), 2003 CarswellNat 1978, 307 N.R. 201, [2003] 3 F.C. 761, [2003] F.C.J. No. 565 (Fed. C.A.) — considered Statutes considered: Crimes Against Humanity and War Crimes Act, S.C. 2000, c. 24 Generally — referred to Criminal Code, R.S.C. 1985, c. C-46 s. 21(2) — considered Ezokola c. Canada 187

Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 98 — considered s. 162(2) — considered s. 170(g) — considered s. 170(h) — considered Treaties considered: Convention Relating to the Status of Refugees, 1951, C.T.S. 1969/6; 189 U.N.T.S. 150 Generally — referred to Article 1F(a) — considered Rome Statute of the International Criminal Court, 1998, U.N. Doc. A/CONF. 183/9 Generally — referred to Article 25 — considered Article 25 ¶ 3 — considered Article 25 ¶ 3(a) — considered Article 25 ¶ 3(a)-(c) — considered Article 25 ¶ 3(b) — considered Article 25 ¶ 3(c) — considered Article 25 ¶ 3(d) — considered Article 28 — referred to Article 30 — considered Article 30 ¶ 1 — considered Article 30 ¶ 2(a) — considered Article 30 ¶ 2(b) — considered Article 30 ¶ 3 “knowledge” — considered Article 31 ¶ 1(d) — considered Article 74 — referred to Vienna Convention on the Law of Treaties, 1969, C.T.S. 1980/37; 1155 U.N.T.S. 331; (1969) 63 A.J.I.L. 875 Article 31 — referred to

APPEAL by refugee claimant from judgment reported at Ezokola c. Canada (Ministre de la Citoyennet´e & de l’Immigration) (2011), 1 Imm. L.R. (4th) 181, (sub nom. Ezokola v. Canada (Citizenship & Immigration)) [2011] 3 F.C.R. 417, 335 D.L.R. (4th) 164, 2011 FCA 224, 2011 CarswellNat 2546, (sub nom. Ezokola v. Canada (Minister of Citizenship & Immigration)) 420 N.R. 279, 2011 CAF 224, 2011 CarswellNat 6333, [2011] F.C.J. No. 1052, [2011] A.C.F. No. 1052 (F.C.A.), upholding exclusion of claimant from definition of refugee by applying “personal and knowing participation” test to determine claimant’s 188 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

complicity in crimes against humanity perpetuated by government by whom claimant was employed.

POURVOI form´e par un demandeur du statut de r´efugi´e a` l’encontre d’un juge- ment publi´e a` Ezokola c. Canada (Ministre de la Citoyennet´e & de l’Immigration) (2011), 1 Imm. L.R. (4th) 181, (sub nom. Ezokola v. Canada (Citizenship & Immigration)) [2011] 3 F.C.R. 417, 335 D.L.R. (4th) 164, 2011 FCA 224, 2011 CarswellNat 2546, (sub nom. Ezokola v. Canada (Minister of Citizenship & Immigration)) 420 N.R. 279, 2011 CAF 224, 2011 CarswellNat 6333, [2011] F.C.J. No. 1052, [2011] A.C.F. No. 1052 (F.C.A.), ayant confirm´e l’exclusion du demandeur de la d´efinition de r´efugi´e en appliquant le crit`ere fond´e sur la « participation personnelle et consciente » afin de d´eterminer si le demandeur etait´ complice de crimes contre l’humanit´e perp´etr´es par le gouvernement au sein duquel il etait´ employ´e.

Jared Will, Annick Legault, Peter Shams, for Appellant Fran¸cois Joyal, Ginette Gobeil, for Respondent Lorne Waldman, Jacqueline Swaisland, Kylie Buday, Rana Khan, for Inter- vener, United Nations High Commissioner for Refugees Michael Bossin, Chantal Tie, La¨ıla Demirdache, for Intervener, Amnesty International John Terry, Sarah R. Shody, Renu Mandhane, for Interveners, Canadian Centre for International Justice, International Human Rights Program at the Univer- sity of Toronto Faculty of Law Catherine Dauvergne, Angus Grant, Pia Zambelli, for Intervener, Canadian Council for Refugees Sukanya Pillay, for Intervener, Canadian Civil Liberties Association Jennifer Bond, Carole Simone Dahan, Aviva Basman, Andrew Brouwer, for In- tervener, Canadian Association of Refugee Lawyers

LeBel, Fish JJ. (McLachlin C.J.C. and Abella, Rothstein, Cromwell, Moldaver, Karakatsanis and Wagner JJ. concurring): I. Introduction 1 Criminal responsibility does not fall solely upon direct perpetrators of crime. A murder conviction, for example, can attach equally to one who pulls the trigger and one who provides the gun. Complicity is a defining characteristic of crimes in the international context, where some of the world’s worst crimes are committed often at a distance, by a multitude of actors. 2 While principal perpetrators may be distinguished from secondary ac- tors for sentencing, the distinction is irrelevant for the purposes of art. Ezokola c. Canada LeBel, Fish JJ. 189

1F(a) of the United Nations Convention Relating to the Status of Refu- gees, Can. T.S. 1969 No. 6 (“Refugee Convention”). Article 1F(a) ex- cludes individuals from the definition of “refugee” if there are “serious reasons for considering that [they have] committed a crime against peace, a war crime, or a crime against humanity”. Those who commit these offences are not entitled to the humanitarian protection provided by the Refugee Convention. Where exclusion from refugee status is the only “sanction”, it is not necessary to distinguish between principals, aiders and abettors, or other criminal participants. Individuals may be excluded from refugee protection for international crimes through a variety of modes of commission. 3 Guilt by association, however, is not one of them. 4 This appeal homes in on the line between association and complicity. It asks whether senior public officials can be excluded from the defini- tion of “refugee” by performing official duties for a government that commits international crimes. It is the task of this Court to determine what degree of knowledge and participation in a criminal activity justi- fies excluding secondary actors from refugee protection. In other words, for the purposes of art. 1F(a), when does mere association become culpa- ble complicity? 5 In contrast to international crime, determining responsibility for do- mestic crime is often direct. While party liability plays a role, domestic criminal law, in its simplest form, asks whether one individual has com- mitted one crime against one victim. In international criminal law, the focus often switches to the collective and to the links between individu- als and collective action. International criminal law typically asks whether a group of individuals, an organization or a state has committed a series of crimes against a group of victims. In other words, party liabil- ity plays a much greater role in the commission of those crimes recog- nized as some of the most serious in the international legal order: R. Cryer, et al., An Introduction to International Criminal Law and Proce- dure (2nd ed. 2010), at p. 361. 6 Aware of the collective aspects of international crime, the Federal Court of Appeal correctly concluded that senior officials may be held criminally responsible for crimes committed by their government if they are aware of the crimes being committed yet remain in their position without protest and continue to defend the interests of the government. 7 However, this does not mean that high-ranking government officials are exposed to a form of complicity by association. Complicity arises by 190 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

contribution. The collective nature of many international crimes does not erase the importance of holding an individual responsible only for his or her own culpable acts: G. Werle, “Individual Criminal Responsibility in Article 25 ICC Statute” (2007), 5 J.I.C.J. 953, at p. 953. 8 While individuals may be complicit in international crimes without a link to a particular crime, there must be a link between the individuals and the criminal purpose of the group — a matter to which we will later return. In the application of art. 1F(a), this link is established where there are serious reasons for considering that an individual has voluntarily made a significant and knowing contribution to a group’s crime or crimi- nal purpose. As we shall see, a broad range of international authorities converge towards the adoption of a “significant contribution test”. 9 This contribution-based approach to complicity replaces the personal and knowing participation test developed by the Federal Court of Appeal in Ramirez v. Canada (Minister of Employment & Immigration), [1992] 2 F.C. 306 (Fed. C.A.). In our view, the personal and knowing participa- tion test has, in some cases, been overextended to capture individuals on the basis of complicity by association. A change to the test is therefore necessary to bring Canadian law in line with international criminal law, the humanitarian purposes of the Refugee Convention, and fundamental criminal law principles. 10 We would therefore allow the appeal and send the matter back to a different panel of the Refugee Protection Division of the Immigration and Refugee Board (the “Board”) for redetermination in accordance with these reasons. The panel will decide whether there are serious reasons for considering that the appellant’s knowledge of, and participation in, the crimes or criminal purposes of his government meet the complicity by contribution test. As always, whether art. 1F(a) operates to exclude an individual from refugee protection will depend on the particular facts of the case.

A. Background Facts 11 The appellant, Rachidi Ekanza Ezokola, began his career with the government of the Democratic Republic of Congo (“DRC”) in January 1999. He was hired as a financial attach´e at the Ministry of Finance and was assigned to the Ministry of Labour, Employment and Social Welfare in Kinshasa. He later worked as a financial adviser to the Ministry of Human Rights and the Ministry of Foreign Affairs and International Cooperation. Ezokola c. Canada LeBel, Fish JJ. 191

12 In 2004, the appellant was assigned to the Permanent Mission of the DRC to the United Nations (“UN”) in New York. In his role as second counsellor of embassy, the appellant represented the DRC at interna- tional meetings and UN entities including the UN Economic and Social Council. He also acted as a liaison between the Permanent Mission of the DRC and UN development agencies. In 2007, the appellant served as acting charg´e d’affaires. In this capacity, he led the Permanent Mission of the DRC and spoke before the Security Council regarding natural re- sources and conflicts in the DRC. 13 The appellant worked at the Permanent Mission until January 2008 when he resigned and fled to Canada. 14 The appellant says he ultimately resigned because he refused to serve the government of President Kabila which he considered to be corrupt, antidemocratic and violent. He claims his resignation would be viewed as an act of treason by the DRC government. He claims that the DRC’s intelligence service harassed, intimidated, and threatened him because it suspected he had links to Jean-Pierre Bemba, President Kabila’s oppo- nent. It was on this basis that he sought refugee protection for himself, his wife, and their eight children in Canada.

B. Judicial History (1) Immigration and Refugee Board — Refugee Protection Division, 2009 CanLII 89027 15 The issue for the Board in determining the appellant’s application for refugee protection was whether the appellant should be excluded from Canada on the basis of s. 98 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (“IRPA”). This provision directly incorporates art. 1F(a) of the Refugee Convention into Canadian law. The Board excluded the appellant from the definition of “refugee” under art. 1F(a). It held that, although the government of the DRC was not an organization with a limited and brutal purpose, it had committed crimes against humanity as defined by the Rome Statute of the International Criminal Court, U.N. Doc. A/CONF.183/9, July 17, 1998 (“Rome Statute”), and Canadian ju- risprudence: paras. 31 and 43. The Board concluded that the govern- ment’s crimes continued even as the government itself changed: para. 33. 16 The Board relied on various reports — including media, governmen- tal, and non-governmental — to find international crimes were commit- ted, on both sides of conflicts spanning several years. For instance, at para. 39, it cited a report by Human Rights Watch, dated January 18, 192 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

2006, which condemned the conduct of the DRC government (and others): In 2005, combatants from armed groups as well as government soldiers deliberately killed, raped, and abducted civilians and de- stroyed or looted their property in repeated attacks, particularly in eastern Congo. A feeble justice system failed to prosecute these re- cent crimes and did nothing to end impunity for war crimes and crimes against humanity committed during the previous two wars. The September 2005 discovery of mass graves from 1996 in the east- ern region of Rutshuru served as a reminder of the unpunished mass slaughter of civilians in Congo in the last decade...... The government failure to integrate troops of former belligerent groups into the national army and to properly train and pay its soldiers underlay some military abuses. Military abuses such as those that occurred in December 2004 in North Kivu where government soldiers and combatants refusing integration fought and killed at least one hundred civilians, many of them targeted on an ethnic basis, were repeated elsewhere in 2005. In Walungu, South Kivu, govern- ment soldiers raped civilians and looted property during operations against the FDLR in late 2004 and early 2005. In Equateur, poorly paid and undisciplined troops went on a rampage in July 2005, kill- ing, raping, and stealing from civilians. As government soldiers tried to take control of Ituri and parts of North and South Kivu, Maniema and Katanga in late 2004 and 2005, both they and the combatants fighting them committed grave viola- tions of international humanitarian and human rights law. (World Report 2006: Events of 2005 (2006), at pp. 90-92) 17 The Board also cited reports condemning the DRC authorities’ prac- tice of recruiting child soldiers: paras. 36 and 40. 18 The Board concluded that “[t]he evidence clearly shows that the Con- golese government represses human rights, carries out civilian massacres and engages in governmental corruption”: para. 43. 19 In the Board’s view, the appellant was complicit in these crimes. Based on the appellant’s official rank, he had “personal and knowing awareness” of the crimes committed by his government: para. 71. The Board pointed out that the appellant had joined the government volunta- rily and continued to act in his official capacity until he feared for his own safety. In the Board’s view, the appellant’s functions and responsi- bilities helped to sustain the government of the DRC. The Board there- Ezokola c. Canada LeBel, Fish JJ. 193

fore had serious reasons for considering that the appellant was complicit in the crimes committed by the government.

(2) Federal Court — Mainville J., 2010 FC 662, [2011] 3 F.C.R. 377 (F.C.) 20 The Federal Court allowed the appellant’s application for judicial re- view. The court determined that an individual cannot be excluded under art. 1F(a) merely because he had been an employee of a state whose gov- ernment commits international crimes. Complicity requires a nexus be- tween the claimant and the crimes committed by the government. 21 In order to determine whether this link existed, the court considered the modes of commission provided for in the Rome Statute and con- cluded that “criminal responsibility for crimes against humanity requires personal participation in the crime alleged or personal control over the events leading to the crime alleged”: para. 86. 22 In the court’s view, the required nexus between the claimant and the crimes “may be established by presumption if the claimant held a senior position in the public service, where there are serious reasons for consid- ering that the position in question made it possible for the refugee claim- ant to commit, incite or conceal the crimes, or to participate or collabo- rate in the crimes”: para. 4. However, in this case there was “no evidence that tend[ed] to show direct or indirect personal participation by the ap- plicant in the crimes alleged, and there [was] no evidence of incitement or active support by the applicant for those crimes”: para. 104. It was an error to assign responsibility to the appellant solely on the basis of his position within the government, absent a personal nexus between his role and the army or police of the DRC. 23 The court certified the following question: For the purposes of exclusion pursuant to paragraph 1F(a) of the United Nations Refugee Convention, is there complicity by associa- tion in crimes against humanity from the fact that the refugee claim- ant was a public servant in a government that committed such crimes, along with the fact that the refugee claimant was aware of these crimes and did not denounce them, when there is no proof of per- sonal participation, whether direct or indirect, of the refugee claimant in these crimes? [2011 FCA 224, [2011] 3 F.C.R. 417, at para. 28] 194 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

(3) Federal Court of Appeal — No¨el J.A. (Nadon and Pelletier JJ.A.) 24 The Federal Court of Appeal answered the certified question in the affirmative, but not before reformulating it as follows: For the purposes of exclusion pursuant to paragraph 1F(a) of the United Nations Refugee Convention, can complicity by association in crimes against humanity be established by the fact that the refugee claimant was a senior public servant in a government that committed such crimes, along with the fact that the refugee claimant was aware of these crimes and remained in his position without denouncing them? [para. 44] 25 The Federal Court of Appeal rejected the Federal Court’s approach to complicity, describing it as inconsistent with Canadian jurisprudence and too narrow: paras. 46 and 57. The Federal Court of Appeal concluded that a senior official may, by remaining in his or her position without pro- test and continuing to defend the interests of his or her government while being aware of the crimes committed by this government demonstrate “personal and knowing participation” in these crimes and be complicit with the government in their commission. [para. 72] 26 The court added that “the final outcome will always depend on the facts particular to each case”: para. 72. 27 The Federal Court of Appeal decided it was unnecessary to determine whether the conclusion of the Board was reasonable because it had ap- plied the wrong test for complicity. Instead of applying the “personal and knowing participation” test, the Board considered the appellant’s “per- sonal and knowing awareness”: para. 75. The Federal Court of Appeal therefore remitted the matter to a different panel of the Board to apply the personal and knowing participation test to determine whether the ap- pellant was an accomplice in the crimes committed by the DRC.

II. Analysis A. Issues 28 Whether or not the appellant should ultimately be excluded from ref- ugee protection for having committed international crimes will be deter- mined by the Board at a de novo hearing. The task for this Court is to determine what test for complicity will be applied by the art. 1F(a) deci- sion maker. To answer this question, the Court must also address the evi- dentiary standard applicable to art. 1F(a) determinations. Ezokola c. Canada LeBel, Fish JJ. 195

29 For the reasons that follow, we conclude that an individual will be excluded from refugee protection under art. 1F(a) for complicity in inter- national crimes if there are serious reasons for considering that he or she voluntarily made a knowing and significant contribution to the crime or criminal purpose of the group alleged to have committed the crime. The evidentiary burden falls on the Minister as the party seeking the appli- cant’s exclusion: Ramirez, at p. 314. 30 In rejecting a guilt-by-association approach to complicity, we have considered (i) the purpose of the Refugee Convention and art. 1F(a); (ii) the role of the Board; (iii) the international law to which art. 1F(a) ex- pressly refers; and (iv) the approach to complicity under art. 1F(a) taken by other state parties to the Refugee Convention. Each of these demon- strates the need to rein in the Canadian approach to complicity under art. 1F(a) to ensure that individuals are not excluded from refugee protection for merely being associated with others who have perpetrated interna- tional crimes.

B. The Purpose of the Refugee Convention and Article 1F(a) 31 In our view, the purpose of the Refugee Convention, together with the purpose of art. 1F(a), sheds light on the proper approach for determining exclusions from refugee protection based on complicity in international crimes: Vienna Convention on the Law of Treaties, Can. T.S. 1980 No. 37, art. 31. 32 The preamble to the Refugee Convention highlights the international community’s “profound concern for refugees” and its commitment “to assure refugees the widest possible exercise of ... fundamental rights and freedoms”. Our approach to art. 1F(a) must reflect this “overarching and clear human rights object and purpose”: Pushpanathan v. Canada (Minister of Employment & Immigration), [1998] 1 S.C.R. 982 (S.C.C.), at para. 57. 33 That said, the Refugee Convention’s commitment to refugee protec- tion is broad, but not unbounded. It does not protect international criminals. Incorporated directly into Canadian law by s. 98 of the IRPA, art. 1F(a) guards against abuses of the Refugee Convention by denying refugee protection to any person with respect to whom there are serious reasons for con- sidering that: 196 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

(a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instru- ments drawn up to make provision in respect of such crimes; 34 As the Federal Court of Appeal recognized in Sivakumar v. Canada (Minister of Employment & Immigration) (1993), [1994] 1 F.C. 433 (Fed. C.A.), at p. 445: “When the tables are turned on persecutors, who suddenly become the persecuted, they cannot claim refugee status. Inter- national criminals, on all sides of the conflicts, are rightly unable to claim refugee status.” In other words, those who create refugees are not refugees themselves: Pushpanathan, at para. 63; Zrig c. Canada (Ministre de la Citoyennet´e & de l’Immigration), 2003 FCA 178, [2003] 3 F.C. 761 (Fed. C.A.), at para. 118. 35 On the one hand then, if we approach art. 1F(a) too narrowly, we risk creating safe havens for perpetrators of international crimes — the very scenario the exclusion clause was designed to prevent. On the other hand, a strict reading of art. 1F(a) arguably best promotes the humanita- rian aim of the Refugee Convention: United Nations High Commissioner for Refugees (“UNHCR”), “Guidelines on International Protection: Ap- plication of the Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status of Refugees”, HCR/GIP/03/05, September 4, 2003 (online), at para. 2. 36 The foregoing demonstrates the need for a carefully crafted test for complicity — one that promotes the broad humanitarian goals of the Ref- ugee Convention but also protects the integrity of international refugee protection by ensuring that the authors of crimes against peace, war crimes, and crimes against humanity do not exploit the system to their own advantage. As we will explain, these two aims are properly balanced by a contribution-based test for complicity — one that requires a volun- tary, knowing, and significant contribution to the crime or criminal pur- pose of a group.

C. The Role of the Refugee Protection Division: Exclusion Determinations, not Findings of Guilt 37 In addition to the purposes of the Refugee Convention and art. 1F(a), the test for complicity must reflect the role of the Board and must work within the practical realities of refugee proceedings. 38 A refugee hearing is not a criminal trial before an international tribu- nal. International criminal tribunals render verdicts for some of the most serious crimes in the international legal order. In contrast, the Board Ezokola c. Canada LeBel, Fish JJ. 197

makes exclusion determinations; it does not determine guilt or inno- cence. The purpose of art. 1F(a) “is to exclude ab initio those who are not bona fide refugees at the time of their claim for refugee status”: Pushpanathan, at para. 58. 39 To achieve this purpose, Board hearings tend to be less formal than criminal trials. The Board is not bound by traditional rules of evidence: IRPA, at s. 170(g) and (h); Thamotharem v. Canada (Minister of Citizenship & Immigration), 2007 FCA 198, [2008] 1 F.C.R. 385 (F.C.A.), at para. 41; Kumar v. Canada (Minister of Citizenship & Immi- gration), 2009 FC 643 (F.C.), at paras. 28-29. Section 162(2) of the IRPA instructs each division of the Board to “deal with all proceedings before it as informally and quickly as the circumstances and the considerations of fairness and natural justice permit”. 40 As we will discuss in more detail below, the differences between a criminal trial and a Board hearing are further reflected in — and accom- modated by — the unique evidentiary burden applicable to art. 1F(a) de- terminations: a person is excluded from the definition of “refugee” on the basis of the “serious reasons for considering” standard. 41 In light of these features of refugee proceedings, it is unnecessary to craft a multitude of tests for each mode of commission through which a government official may be held complicit in the crimes committed by his or her government. Unique considerations may arise in cases where the individual is said to have control or responsibility over the alleged perpetrators, or where the individual allegedly made specific contribu- tions to a specific crime (in the form of instigating, ordering, or inciting, for example). However, here we are concerned with general participation in a group’s criminal activity. We must determine when that participation becomes a culpable contribution.

D. The Board Must Rely on International Law to Interpret Article 1F(a) 42 Following the express direction in the text of art. 1F(a), we now turn to international law for guidance. As mentioned, art. 1F(a) excludes indi- viduals when “there are serious reasons for considering that” they have “committed a crime against peace, a war crime, or a crime against hu- manity, as defined in the international instruments”. We must therefore consider international criminal law to determine whether an individual should be excluded from refugee protection for complicity in interna- tional crimes: Harb c. Canada (Ministre de la Citoyennet´e & de 198 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

l’Immigration), 2003 FCA 39, 302 N.R. 178 (Fed. C.A.), at para. 8. We will also look to international jurisprudence for guidance: Mugesera c. Canada (Ministre de la Citoyennet´e & de l’Immigration), 2005 SCC 40, [2005] 2 S.C.R. 100 (S.C.C.), at paras. 82 and 126. 43 In our view, international law is relevant both for the elements of the offences and their potential modes of commission. As the appellant stated, art. 1F(a) is not concerned with simply identifying the substantive elements of the offence, but with whether there are serious reasons for considering that the individual has committed a crime as defined in inter- national law. Since there is no dispute in this appeal that the elements of the crimes have been carried out by the government of the DRC, we are concerned here with modes of commission. 44 Whether an individual is complicit in an international crime cannot be considered in light of only one of the world’s legal systems: Ramirez, at p. 315; Moreno v. Canada (Minister of Employment & Immigration) (1993), [1994] 1 F.C. 298 (Fed. C.A.), at p. 323. This flows not only from the explicit instruction in art. 1F(a) to apply international law, but also from the extraordinary nature of international crimes. They simply transcend domestic norms. As Fannie Lafontaine explains in Prosecuting Genocide, Crimes Against Humanity and War Crimes in Canadian Courts (2012), at p. 95: Genocide, crimes against humanity and war crimes, because of their very raison d’ˆetre, their particular magnitude and the context of their commission, cannot be assimilated to ordinary crimes, regardless of the latter crimes’ intrinsic gravity. 45 International criminal law, while built upon domestic principles, has adapted the concept of individual responsibility to this setting of collec- tive and large-scale criminality, where crimes are often committed indi- rectly and at a distance. As Gerhard Werle puts it, at p. 954: When allocating individual responsibility within networks of collec- tive action, it must be kept in mind that the degree of criminal re- sponsibility does not diminish as distance from the actual act in- creases; in fact, it often grows. Adolf Hitler, for example, sent millions of people to their deaths without ever laying a hand on a victim himself. And mass killer Adolf Eichmann organized the exter- mination of European Jews from his office in the Berlin headquarters of the “Reichssicherheitshauptamt” of the SS. 46 We are therefore required by both the text of art. 1F(a) and the reali- ties of international crime to look beyond the bounds of Canadian crimi- nal law. We must refrain from interpreting and applying international Ezokola c. Canada LeBel, Fish JJ. 199

criminal law as if it were simply the mirror of our domestic criminal law: Cassese’s International Criminal Law (3rd ed. 2013), revised by A. Cas- sese, et al., at pp. 6-7. 47 The question is — what are the relevant sources of international crim- inal law? 48 In our view, the best place to start is the Rome Statute. As Lord Brown of Eaton-under-Heywood J.S.C. recognized in R. (on the application of JS (Sri Lanka)) v. Secretary of State for the Home Depart- ment, [2010] UKSC 15, [2011] A.C. 184 (U.K. S.C.) (“J.S.”), at para. 9: It is convenient to go at once to the [Rome] Statute, ratified as it now is by more than 100 states and standing as now surely it does as the most comprehensive and authoritative statement of international thinking on the principles that govern liability for the most serious international crimes (which alone could justify the denial of asylum to those otherwise in need of it). 49 Canada’s acceptance of the Rome Statute as authority on international criminal principles is beyond dispute. Canada is not only party to the Rome Statute, Parliament has implemented the treaty into domestic law through the Crimes Against Humanity and War Crimes Act, S.C. 2000, c. 24. 50 Article 25 of the Rome Statute provides extensive descriptions of modes of commission. These enumerated modes of liability have been described as the culmination of the international community’s efforts to codify individual criminal responsibility under international law: A. Cas- sese, “From Nuremberg to Rome: International Military Tribunals to the International Criminal Court”, in A. Cassese, P. Gaeta and J. R. W. D. Jones, eds., The Rome Statute of the International Criminal Court: A Commentary, vol. I (2002), 3, at pp. 3-4); and E. van Sliedregt, Indivi- dual Criminal Responsibility in International Law (2012), at pp. 74-75. 51 That said, we may not rely exclusively on the approach of the Interna- tional Criminal Court (“ICC”) to complicity. Despite its importance, the Rome Statute cannot be considered as a complete codification of interna- tional criminal law. International criminal law derives from a diversity of sources which include the growing body of jurisprudence of international criminal courts: Cassese’s International Criminal Law, at pp. 9-21. Arti- cle 1F(a) of the Refugee Convention refers generally to international in- struments and the ICC itself has relied on the jurisprudence of ad hoc tribunals to interpret its own statute: Prosecutor v. Mbarushimana [(De- cember 16, 2011), Doc. ICC-01/04-01/10-465-Red (Int. Criminal Ct.)], 200 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

ICC-01/04-01/10-465-Red, Decision on the Confirmation of Charges, 16 December 2011 (ICC, Pre-Trial Chamber I), at para. 280. See also B. Goy, “Individual Criminal Responsibility before the International Crimi- nal Court: A Comparison with the Ad Hoc Tribunals” (2012), 12 Int’l Crim. L. Rev. 1, at p. 4. In Mugesera, at paras. 82 and 126, this Court highlighted the international law expertise of the ad hoc tribunals and explained that the decisions of the International Criminal Tribunal for the Former Yugoslavia (“ICTY”) and the International Criminal Tribunal for Rwanda “should not be disregarded lightly by Canadian courts applying domestic legislative provisions ... which expressly incorporate customary international law”: para. 126. Accordingly, while our focus will remain on the most recent codification of international criminal law in the Rome Statute, we will also consider other sources, more particularly the juris- prudence of the ad hoc tribunals. 52 As explained above, we are concerned here with the dividing line be- tween mere association and culpable complicity. While further distinc- tions between modes of commission may be important for sentencing purposes, exclusion from refugee protection applies when there are seri- ous reasons for considering that an individual has committed an interna- tional crime, whatever the mode of commission happens to be. Our task then is to identify threshold criteria for the application of the exclusion- ary clause, art. 1F(a) of the Refugee Convention. Accordingly, the broadest modes of commission recognized under current international criminal law are most relevant to our complicity analysis, namely, com- mon purpose liability under art. 25(3)(d) of the Rome Statute and joint criminal enterprise developed in the ad hoc jurisprudence. 53 These two related modes have adapted the concept of individual criminal responsibility to the collective aspects of international crime. However, as the following analysis will show, individual criminal re- sponsibility has not been stretched so far as to capture complicity by mere association or passive acquiescence. In other words, when we look to international criminal law for guidance, even the broadest modes of commission require a link between the individual and the crime or crimi- nal purpose of a group. Therefore, to the extent that the Federal Court of Appeal’s reasons expand complicity under art. 1F(a) such a way that it includes mere complicity by association or passive acquiescence, they should not be followed. We shall return below, in greater detail, to this issue. Ezokola c. Canada LeBel, Fish JJ. 201

E. Common Purpose Under Article 25(3)(d) of the Rome Statute 54 Article 25(3)(d) of the Rome Statute recognizes a broad residual mode of commission, by capturing conduct that “[i]n any other way con- tributes” to a crime committed or attempted by a group acting with a common purpose: 3. ... a person shall be criminally responsible and liable for punish- ment for a crime within the jurisdiction of the Court if that person: ..... (d) In any other way contributes to the commission or at- tempted commission of such a crime by a group of per- sons acting with a common purpose. Such contribution shall be intentional and shall either: (i) Be made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of a crime within the jurisdiction of the Court; or (ii) Be made in the knowledge of the intention of the group to commit the crime; See Cassese’s International Criminal Law, pp. 175-76. 55 In other words, art. 25(3)(d) captures contributions to a crime where an individual did not have control over the crime and did not make an essential contribution as required for co-perpetration under art. 25(3)(a), did not incite, solicit or induce the crime under art. 25(3)(b), or did not intend to aid or abet a certain specific crime under art. 25(3)(c): Prosecutor v. Dyilo [(March 14, 2012), Doc. ICC-01/04-01/06-2842 (Int. Criminal Ct.)], ICC-01/04-01/06-2842, Judgment pursuant to Article 74 of the Statute, 14 March 2012 (ICC, Trial Chamber I), at para. 999; Prosecutor v. Ruto [(January 23, 2012), Doc. ICC-01/09-01/11-373 (Int. Criminal Ct.)], ICC-01/09-01/11-373, Decision on the Confirmation of Charges, 23 January 2012 (ICC, Pre-Trial Chamber II), at para. 354; Prosecutor v. Mbarushimana [(May 30, 2012), Doc. ICC-01/04-01/10- 514 (Int. Criminal Ct.)], ICC-01/04-01/10-514, Judgment on the Prosecu- tor’s Appeal against the Decision on the Confirmation of Charges, 30 May 2012 (ICC, Appeals Chamber), at para. 8, per Judge Silvia Fern´an- dez de Gurmendi, concurring; Prosecutor v. Dyilo [(January 29, 2007), Doc. ICC-01/04-01/06-803-tEN (Int. Criminal Ct.)], ICC-01/04-01/06- 803-tEN, Decision on the Confirmation of Charges, 29 January 2007 (ICC, Pre-Trial Chamber I), at para. 337; and Lafontaine, at pp. 237-38. 202 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

56 The actus reus under para. (d) is distinguishable from the preceding paragraphs under art. 25(3) primarily by the magnitude of contribution required. While the jurisprudence is not completely settled, a pre-trial chamber of the ICC has said that the level of contribution required by art. 25(3)(d) is lower than the forms of commission under paras. (a) to (c). Where commission under para. (a) requires an essential contribution, and para. (c) a substantial one, Pre-Trial Chamber I has concluded that art. 25(3)(d) requires only a significant contribution: Mbarushimana, at pa- ras. 279-85. 57 While the phrase “any other way” captures every imaginable contri- bution in a qualitative sense, it does not necessarily apply as broadly in a quantitative sense. Not every contribution, no matter how minor, will be caught by art. 25(3)(d). Setting the threshold at significant contribution is critical. As Pre-Trial Chamber I of the ICC said in Mbarushimana, at para. 277: ... such a threshold is necessary to exclude contributions which, be- cause of their level or nature, were clearly not intended by the draft- ers of the Statute to give rise to individual criminal responsibility. For instance, many members of a community may provide contribu- tions to a criminal organisation in the knowledge of the group’s crim- inality, especially where such criminality is public knowledge. With- out some threshold level of assistance, every landlord, every grocer, every utility provider, every secretary, every janitor or even every taxpayer who does anything which contributes to a group committing international crimes could satisfy the elements of 25(3)(d) liability for their infinitesimal contribution to the crimes committed. 58 The pre-trial chamber went on to explain that the significance of a contribution will depend on the facts of each case, “as it is only by exam- ining a person’s conduct in proper context that a determination can be made as to whether a given contribution has a larger or smaller effect on the crimes committed”: Mbarushimana, at para. 284. On an appeal by the Prosecutor, the majority of the Appeals Chamber declined to determine the degree of contribution required under art. 25(3)(d): Mbarushimana, at paras. 65-68. 59 As for the mens rea requirement, the text of art. 25(3)(d) states that a contribution must be intentional, “made with the aim of furthering the criminal activity or purpose of the group” or “in the knowledge of the intention of the group to commit the crime”. The Pre-Trial Chamber I explained in Mbarushimana, at para. 289, that individuals may be com- Ezokola c. Canada LeBel, Fish JJ. 203

plicit in crimes without possessing the mens rea required by the crime itself: Differently from aiding and abetting under article 25(3)(c) of the Statute, for which intent is always required, knowledge is sufficient to incur liability for contributing to a group of persons acting with a common purpose, under article 25(3)(d) of the Statute. Since knowl- edge of the group’s criminal intentions is sufficient for criminal re- sponsibility, it is therefore not required for the contributor to have the intent to commit any specific crime and not necessary for him or her to satisfy the mental element of the crimes charged. 60 While the subjective element under art. 25(3)(d) can take the form of intent (accused intends to contribute to a group’s criminal purpose) or knowledge (accused is aware of the group’s intention to commit crimes), recklessness is likely insufficient. The text of art. 25(3)(d) itself does not refer to conduct that might contribute to a crime or criminal purpose, and the mental element codified by art. 30 has been held to exclude dolus eventualis, that is, the awareness of a mere risk of prohibited consequences: Prosecutor v. Gombo [(June 15, 2009), Doc. ICC-01/05- 01/08-424 (Int. Criminal Ct.)], ICC-01/05-01/08-424, Decision on the Confirmation of Charges, 15 June 2009 (ICC, Pre-Trial Chamber II), at para. 360. We note that Pre-Trial Chamber I took a different view of art. 30 in Lubanga, at paras. 351-55. 61 As the foregoing demonstrates, complicity under art. 25(3)(d) is not based on rank within or association with a group, but on intentionally or knowingly contributing to a group’s crime or criminal purpose.

F. Joint Criminal Enterprise 62 Having considered the broadest form of accessory liability under the Rome Statute, we now turn to what is perhaps the broadest and most controversial mode of liability recognized by the ad hoc tribunals: joint criminal enterprise. See Cassese’s International Criminal Law, at pp. 163-75; Cryer, at p. 372. 63 Even though joint criminal enterprise is considered to be a form of principal liability, it is relevant to our task of setting threshold criteria for art. 1F(a) of the Refugee Convention. The line between principal and ac- cessory is not necessarily drawn consistently across international and do- mestic criminal law. Joint criminal enterprise, like common purpose lia- bility under art. 25(3)(d), captures “lesser” contributions to a crime than aiding and abetting. While aiding and abetting likely requires a substan- tial contribution to a certain specific crime, joint criminal enterprise and 204 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

common purpose liability can arise from a significant contribution to a criminal purpose. To the extent that the ICTY Trial Chamber may be seen to have applied a more exacting standard in Prosecutor v. Staniic (May 30, 2013), Doc. IT-03-69-T (Int. Criminal Trib.), it is not in accor- dance with prevailing appellate authority: Prosecutor v. Tadic (July 15, 1999), Doc. IT-94-1 (Int. Criminal Trib.), at para. 229, cited in Lafon- taine, at p. 237; Prosecutor v. Brdanin (April 3, 2007), Doc. IT-99-36-A (Int. Criminal Trib.), at paras. 427-28 and 430. Joint criminal enterprise therefore captures individuals who could easily be considered as secon- dary actors complicit in the crimes of others: Cryer, at p. 372; S. Manacorda and C. Meloni, “Indirect Perpetration versus Joint Criminal Enterprise: Concurring Approaches in the Practice of International Crim- inal Law?” (2011), 9 J.I.C.J. 159, at p. 166. 64 In Tadic, the ICTY articulated three forms of joint criminal enter- prise: paras. 196-206. For all three, the actus reus is a “significant” con- tribution to the criminal enterprise: Brdanin, at para. 430. 65 However, the mens rea varies for each form. The first form, JCE I, requires shared intent to perpetrate a certain crime. The second, JCE II, requires knowledge of a system of ill treatment and intent to further this system. The third, JCE III, requires intention to participate in and further the criminal activity or purpose of the group, and intent to contribute to the joint criminal enterprise or the commission of a crime by the group. Under JCE III, liability can extend to a crime other than one agreed to in the common plan if the accused intended to participate in and further the criminal activity of the group and (i) it was foreseeable that such a crime might be perpetrated by members of the group and (ii) the accused will- ingly took that risk. In other words, where an accused intends to contrib- ute to the common purpose, JCE III captures not only knowing contribu- tions but reckless contributions: see Tadic, at para. 228. 66 Despite the overlap between joint criminal enterprise and art. 25(3)(d), ICC jurisprudence has kept the two modes distinct. Commenta- tors suggest that JCE III will not play a role at the ICC, largely because of the recklessness component: van Sliedregt, at p. 101; Lafontaine, at p. 238; A. Cassese, “The Proper Limits of Individual Responsibility under the Doctrine of Joint Criminal Enterprise”, (2007), 5 J.I.C.J. 109, at p. 132; Manacorda and Meloni, at p. 176. 67 For our purposes, we simply note that joint criminal enterprise, even in its broadest form, does not capture individuals merely based on rank or association within an organization or an institution: Cassese’s Interna- Ezokola c. Canada LeBel, Fish JJ. 205

tional Criminal Law, at p. 163. It requires that the accused have made, at a minimum, a significant contribution to the group’s crime or criminal purpose, made with some form of subjective awareness (whether it be intent, knowledge, or recklessness) of the crime or criminal purpose. In other words, this form of liability, while broad, requires more than a nexus between the accused and the group that committed the crimes. There must be a link between the accused’s conduct and the criminal conduct of the group: Brdjanin, at paras. 427-28; Lafontaine, at p. 234; Cryer, at p. 369.

G. Summary of Complicity under International Law 68 In sum, while the various modes of commission recognized in inter- national criminal law articulate a broad concept of complicity, individu- als will not be held liable for crimes committed by a group simply be- cause they are associated with that group, or because they passively acquiesced to the group’s criminal purpose. At a minimum, complicity under international criminal law requires an individual to knowingly (or, at the very least, recklessly) contribute in a significant way to the crime or criminal purpose of a group.

H. Comparative Law and Decisions of Other National Courts 69 Other state parties to the Refugee Convention have approached art. 1F(a) in a manner that adheres to the minimum requirements for com- plicity set by the international law principles discussed above. 70 In J.S., the U.K. Supreme Court rejected the presumption that an indi- vidual is complicit in war crimes if he joins an organization, even where that organization has a limited and brutal purpose. Lord Hope of Craig- head D.P.S.C., concurring, stated that “mere membership of an organisa- tion that is committed to the use of violence for political ends is not enough to bring an appellant within the exclusion clauses”: para. 43; see also paras. 31 and 44. Rather, as Lord Kerr of Tonaghmore, J.S.C., also concurring, wrote, decision makers must “concentrate on the actual role played by the particular person, taking all material aspects of that role into account so as to decide whether the required degree of participation is established”: para. 55. In his view, this approach “accord[s] more closely ... with the spirit of articles 25 and 30 of the ICC Rome Statute”: at para. 57. 71 According to J.S., an individual would only be excluded under art. 1F(a) “if there are serious reasons for considering him voluntarily to 206 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

have contributed in a significant way to the organisation’s ability to pur- sue its purpose of committing war crimes, aware that his assistance will in fact further that purpose”: para. 38. 72 To assess the accused’s mental state and degree of participation, J.S. provides factors that are remarkably similar to those used by Canadian courts in art. 1F(a) cases: ... (i) the nature and (potentially of some importance) the size of the organisation and particularly that part of it with which the asylum seeker was himself most directly concerned, (ii) whether and, if so, by whom the organisation was proscribed, (iii) how the asylum seeker came to be recruited, (iv) the length of time he remained in the organisation and what, if any, opportunities he had to leave it, (v) his position, rank, standing and influence in the organisation, (vi) his knowledge of the organisation’s war crimes activities, and (vii) his own personal involvement and role in the organisation including par- ticularly whatever contribution he made towards the commission of war crimes. [para. 30] 73 These factors are largely subsumed by the six “non-exhaustive” fac- tors set out in Ryivuze c. Canada (Ministre de la Citoyennet´e & de l’Immigration), 2007 FC 134, 325 F.T.R. 30 (Eng.) (F.C.), at para. 38: (1) the nature of the organization; (2) the method of recruitment; (3) position/rank in the organization; (4) knowledge of the organization’s atrocities; (5) the length of time in the organization; and (6) the opportunity to leave the organization. 74 The factors recognized in U.K. and Canadian jurisprudence help guard against a complicity analysis that would exclude individuals from refugee protection on the basis of mere membership or failure to dissoci- ate from a multi-faceted organization which is committing war crimes. 75 Similarly, United States appellate jurisprudence on refugee exclu- sions does not recognize complicity based on passive acquiescence or “tangential” contributions. While the U.S. “persecutor bar” does not di- rectly incorporate art. 1F(a), it nevertheless represents an approach to ex- clusion that would only capture those who have committed international Ezokola c. Canada LeBel, Fish JJ. 207

crimes as recognized by international criminal law: A.F., at para. 167. A recent decision by the Second Circuit Court of Appeals said: ... the mere fact that [a person] may be associated with an enterprise that engages in persecution is insufficient by itself to trigger the ef- fects of the persecutor bar. As the Supreme court’s oft-quoted dicta in Fedorenko v. United States, 449 U.S. 490, 101 S.Ct. 737, 66 L.Ed.2d 686 (1981), illustrates, a “guilt by association” approach to the persecutor bar is improper...... Before [a claimant] may be held personally accountable for assist- ing in acts of persecution, there must be some evidence that he him- self engaged in conduct that assisted in the persecution of another. (Xu Sheng Gao v. United States Attorney General, 500 F.3d 93 (2007), at paras. 5-6, cited in P. Zambelli, “Problematic Trends in the Analysis of State Protection and Article 1F(a) Exclusion in Canadian Refugee Law” (2011), 23 Int’l. J. Refugee L. 252, at pp. 284-85.) 76 In our view, the approach to complicity adopted by these state parties adheres to the UNHCR’s recommendation in its Guidelines, at para. 18, although it would ask for a “substantial” contribution: For exclusion to be justified, individual responsibility must be estab- lished in relation to a crime covered by Article 1F.... In general, indi- vidual responsibility flows from the person having committed, or made a substantial contribution to the commission of the criminal act, in the knowledge that his or her act or omission would facilitate the criminal conduct. The individual need not physically have com- mitted the criminal act in question. Instigating, aiding and abetting and participating in a joint criminal enterprise can suffice. 77 In sum, the foregoing approaches to complicity all require a nexus between the individual and the group’s crime or criminal purpose. An individual can be complicit without being present at the crime and with- out physically contributing to the crime. However, the UNHCR has ex- plained, and other states parties have recognized, that to be excluded from the definition of refugee protection, there must be evidence that the individual knowingly made at least a significant contribution to the group’s crime or criminal purpose. Passive membership would not be enough, as indicated above in paras. 70-76.

I. The Canadian Approach to Criminal Participation Has Been Overextended 78 Before being overturned by the Federal Court of Appeal, the Federal Court’s decision in this case was viewed as a potential signal of “a 208 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

clearer jurisprudence, more closely tied to international standards and to the original wording of the Convention”: A. Kaushal and C. Dauvergne, “The Growing Culture of Exclusion: Trends in Canadian Refugee Exclu- sions” (2011), 23 Int’l. J. of Refugee L. 54, at p. 85. The Federal Court rightly concluded that neither mere membership in a government that had committed international crimes nor knowledge of those crimes is enough to establish complicity: para. 4. 79 In our view, the Federal Court’s approach in this case brings appro- priate restraint to the test for complicity that had, in some cases, inappro- priately shifted its focus towards the criminal activities of the group and away from the individual’s contribution to that criminal activity: see, for example, Osagie v. Canada (Minister of Citizenship & Immigration) (2000), 186 F.T.R. 143 (Fed. T.D.); Mpia-Mena-Zambili c. Canada (Ministre de la Citoyennet´e & de l’Immigration), 2005 FC 1349, 281 F.T.R. 54 (Eng.) (F.C.), at paras. 45-47; Fabela v. Canada (Minister of Citizenship & Immigration), 2005 FC 1028, 277 F.T.R. 20 (Eng.) (F.C.), at paras. 14-19. By answering “yes” to the certified question, the Federal Court of Appeal’s reasons could be seen as having endorsed an overex- tended approach to complicity, one that captures complicity by associa- tion or passive acquiescence. 80 As No¨el J.A. noted in this case, a senior official may be complicit in the government’s crimes “by remaining in his or her position without protest and continuing to defend the interests of his or her government while being aware of the crimes”. Nonetheless, the Federal Court of Ap- peal reasons should not be improperly relied on to find complicity even where the individual has committed no guilty act and has no criminal knowledge or intent, beyond a mere awareness that other members of the government have committed illegal acts. 81 In our view, it is necessary to rearticulate the Canadian approach to art. 1F(a) to firmly foreclose exclusions based on such broad forms of complicity. Otherwise, high ranking officials might be forced to abandon their legitimate duties during times of conflict and national instability in order to maintain their ability to claim asylum. Furthermore, a concept of complicity that leaves any room for guilt by association or passive acqui- escence violates two fundamental criminal law principles. 82 It is well established in international criminal law that criminal liabil- ity does not attach to omissions unless an individual is under a duty to act: Cassese’s International Criminal Law, pp. 180-82. Accordingly, un- less an individual has control or responsibility over the individuals com- Ezokola c. Canada LeBel, Fish JJ. 209

mitting international crimes, he or she cannot be complicit by simply re- maining in his or her position without protest: Ramirez, at pp. 319-20. Likewise, guilt by association violates the principle of individual crimi- nal responsibility. Individuals can only be liable for their own culpable conduct: van Sliedregt, at p. 17. 83 Accordingly, the decision of the Federal Court of Appeal should not be taken to leave room for rank-based complicity by association or pas- sive acquiescence. Such a reading would perpetuate a departure from in- ternational criminal law and fundamental criminal law principles.

J. The Canadian Test for Complicity Refined 84 In light of the foregoing reasons, it has become necessary to clarify the test for complicity under art. 1F(a). To exclude a claimant from the definition of “refugee” by virtue of art. 1F(a), there must be serious rea- sons for considering that the claimant has voluntarily made a significant and knowing contribution to the organization’s crime or criminal purpose. 85 We will address these key components of the contribution-based test for complicity in turn. In our view, they ensure that decision makers do not overextend the concept of complicity to capture individuals based on mere association or passive acquiescence.

(1) Voluntary Contribution to the Crime or Criminal Purpose 86 It goes without saying that the contribution to the crime or criminal purpose must be voluntarily made. While this element is not in issue in this case, it is easy to foresee cases where an individual would otherwise be complicit in war crimes but had no realistic choice but to participate in the crime. To assess the voluntariness of a contribution, decision mak- ers should, for example, consider the method of recruitment by the or- ganization and any opportunity to leave the organization. The voluntari- ness requirement captures the defence of duress which is well recognized in customary international criminal law, as well as in art. 31(1)(d) of the Rome Statute: Cassese’s International Criminal Law, pp. 215-16.

(2) Significant Contribution to the Group’s Crime or Criminal Purpose 87 In our view, mere association becomes culpable complicity for the purposes of art. 1F(a) when an individual makes a significant contribu- tion to the crime or criminal purpose of a group. As Lord Brown J.S.C. said in J.S., to establish the requisite link between the individual and the 210 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

group’s criminal conduct, the accused’s contribution does not have to be “directed to specific identifiable crimes” but can be directed to “wider concepts of common design, such as the accomplishment of an organisa- tion’s purpose by whatever means are necessary including the commis- sion of war crimes”: para. 38. This approach to art. 1F(a) is consistent with international criminal law’s recognition of collective and indirect participation in crimes discussed above, as well as s. 21(2) of the Cana- dian Criminal Code, R.S.C. 1985, c. C-46, which attaches criminal liabil- ity based on assistance in carrying out a common unlawful purpose. 88 Given that contributions of almost every nature to a group could be characterized as furthering its criminal purpose, the degree of the contri- bution must be carefully assessed. The requirement of a significant con- tribution is critical to prevent an unreasonable extension of the notion of criminal participation in international criminal law.

(3) Knowing Contribution to the Crime or Criminal Purpose 89 To be complicit in crimes committed by the government, the official must be aware of the government’s crime or criminal purpose and aware that his or her conduct will assist in the furtherance of the crime or crimi- nal purpose. 90 In our view, this approach is consistent with the mens rea require- ment under art. 30 of the Rome Statute. Article 30(1) explains that “a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the material elements are committed with intent and knowledge”. Article 30(2)(a) explains that a person has intent where he “means to engage in the conduct”. With respect to consequences, art. 30(2)(b) requires that the individual “means to cause that consequence or is aware that it will occur in the ordinary course of events”. Knowledge is defined in art. 30(3) as “awareness that a circumstance exists or a consequence will occur in the ordinary course of events”.

(4) Applying the Test 91 Whether there are serious reasons for considering that an individual has committed international crimes will depend on the facts of each case. Accordingly, to determine whether an individual’s conduct meets the ac- tus reus and mens rea for complicity, several factors may be of assis- tance. The following list combines the factors considered by courts in Canada and the U.K., as well as by the ICC. It should serve as a guide in Ezokola c. Canada LeBel, Fish JJ. 211

assessing whether an individual has voluntarily made a significant and knowing contribution to a crime or criminal purpose: (i) the size and nature of the organization; (ii) the part of the organization with which the refugee claimant was most directly concerned; (iii) the refugee claimant’s duties and activities within the organization; (iv) the refugee claimant’s position or rank in the organization; (v) the length of time the refugee claimant was in the organization, particularly after acquiring knowledge of the group’s crime or criminal purpose; and (vi) the method by which the refugee claimant was recruited and the refugee claimant’s opportunity to leave the organization. See Ryivuze, at para. 38; J.S., at para. 30; and Mbarushimana, Decision on the Confirmation of Charges, at para. 284. 92 When relying on these factors for guidance, the focus must always remain on the individual’s contribution to the crime or criminal purpose. Not only are the factors listed above diverse, they will also have to be applied to diverse circumstances encompassing different social and his- torical contexts. Refugee claimants come from many countries and ap- pear before the Board with their own life experiences and backgrounds in their respective countries of origin. Thus, the assessment of the factors developed in our jurisprudence, the decisions of the courts of other coun- tries, and the international community will necessarily be highly contex- tual. Depending on the facts of a particular case, certain factors will go “a long way” in establishing the requisite elements of complicity. Ulti- mately, however, the factors will be weighed with one key purpose in mind: to determine whether there was a voluntary, significant, and know- ing contribution to a crime or criminal purpose. 93 In the present case, it will be for the Board to determine which factors are significant, based on the application before it. To provide guidance to the Board in making this determination, it may be of assistance to briefly elaborate on each of the factors listed above. 94 The size and nature of the organization. The size of an organization could help determine the likelihood that the claimant would have known of and participated in the crime or criminal purpose. A smaller organiza- tion could increase that likelihood. That likelihood could also be im- pacted by the nature of the organization. If the organization is mul- 212 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

tifaceted or heterogeneous, i.e. one that performs both legitimate and criminal acts, the link between the contribution and the criminal purpose will be more tenuous. In contrast, where the group is identified as one with a limited and brutal purpose, the link between the contribution and the criminal purpose will be easier to establish. In such circumstances, a decision maker may more readily infer that the accused had knowledge of the group’s criminal purpose and that his conduct contributed to that purpose. That said, even for groups with a limited and brutal purpose, the individual’s conduct and role within the organization must still be care- fully assessed, on an individualized basis, to determine whether the con- tribution was voluntarily made and had a significant impact on the crime or criminal purpose of the group. 95 The part of the organization with which the refugee claimant was most directly concerned. This factor may be relevant if particular parts of the organization were known to be involved with the crime or criminal purpose. For example, where only one part of the organization in ques- tion was involved in the crime or criminal purpose, a claimant’s exclu- sive affiliation with another part(s) of the organization may serve to ex- onerate him or her for the purpose of art. 1F(a). 96 The refugee claimant’s duties and activities within the organization. This factor is likely to be significant in any analysis of complicity, be- cause it goes to the heart of a claimant’s day to day participation in the activities of the organization. The Board should consider the link be- tween the duties and activities of a claimant, and the crimes and criminal purposes of the organization. 97 The refugee claimant’s position or rank in the organization. A high ranking individual in an organization may be more likely to have knowl- edge of that organization’s crime or criminal purpose. In some cases, a high rank or rapid ascent through the ranks of an organization could evi- dence strong support of the organization’s criminal purpose. Moreover, by virtue of their position or rank, individuals may have effective control over those directly responsible for criminal acts, possibly engaging art. 28 of the Rome Statute. 98 The length of time the refugee claimant was in the organization, par- ticularly after acquiring knowledge of the group’s crime or criminal pur- pose. It may be easier to establish complicity where an individual has been involved with the organization for a longer period of time. This would increase the chance that the individual had knowledge of the or- ganization’s crime or criminal purpose. A lengthy period of involvement Ezokola c. Canada LeBel, Fish JJ. 213

may also increase the significance of an individual’s contribution to the organization’s crime or criminal purpose. 99 The method by which the refugee claimant was recruited and the ref- ugee claimant’s opportunity to leave the organization. As mentioned, these two factors directly impact the voluntariness requirement. This re- quirement may not be satisfied if an individual was coerced into joining, supporting, or remaining in the organization. Similarly, an individual’s involvement with an organization may not be voluntary if he or she did not have the opportunity to leave, especially after acquiring knowledge of its crime or criminal purpose. The Board may wish to consider whether the individual’s specific circumstances (i.e. location, financial resources, and social networks) would have eased or impeded exit. 100 We reiterate that the factors discussed above should be relied on only for guidance. We agree with Lord Kerr J.S.C.’s statement in J.S., at para. 55: ... they are not necessarily exhaustive of the matters to be taken into account, nor will each of the factors be inevitably significant in every case. One needs, I believe, to concentrate on the actual role played by the particular person, taking all material aspects of that role into ac- count so as to decide whether the required degree of participation is established. A full contextual analysis would necessarily include any viable defences, including, but certainly not limited to, the defence of duress, discussed above.

K. Evidentiary Standard: Serious Reasons for Considering 101 Ultimately, the above contribution-based test for complicity is subject to the unique evidentiary standard contained in art. 1F(a) of the Refugee Convention. To recall, the Board does not make determinations of guilt. Its exclusion decisions are therefore not based on proof beyond a reason- able doubt nor on the general civil standard of the balance of probabili- ties. Rather, art. 1F(a) directs it to decide whether there are “serious rea- sons for considering” that an individual has committed war crimes, crimes against humanity or crimes against peace. For guidance on apply- ing the evidentiary standard, we agree with the Lord Brown J.S.C.’s rea- sons in J.S., at para. 39: It would not, I think, be helpful to expatiate upon article 1F’s refer- ence to there being “serious reasons for considering” the asylum seeker to have committed a war crime. Clearly the tribunal in 214 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

Gurung’s case [2003] Imm AR 115 (at the end of para. 109) was right to highlight “the lower standard of proof applicable in exclusion clause cases” — lower than that applicable in actual war crimes tri- als. That said, “serious reasons for considering” obviously imports a higher test for exclusion than would, say, an expression like “reason- able grounds for suspecting”. “Considering” approximates rather to “believing” than to “suspecting”. I am inclined to agree with what Sedley LJ said in Al-Sirri v Secretary of State for the Home Depart- ment [2009] Imm AR 624, para. 33: [the phrase used] sets a standard above mere suspicion. Beyond this, it is a mistake to try to paraphrase the straightforward language of the Convention: it has to be treated as meaning what it says. 102 In our view, this unique evidentiary standard is appropriate to the role of the Board and the realities of an exclusion decision addressed above. The unique evidentiary standard does not, however, justify a relaxed ap- plication of fundamental criminal law principles in order to make room for complicity by association.

III. Conclusion 103 For the foregoing reasons, we would allow the appeal, with costs throughout, and remit the matter to the Refugee Protection Division of the Immigration and Refugee Board for redetermination in accordance with these reasons. A new panel shall apply the contribution-based test for complicity outlined above. A detailed assessment is required to deter- mine whether the particular facts of this case establish serious reasons for considering that the actus reus and mens rea for complicity are present and therefore justify excluding the appellant from the definition of refu- gee by operation of art. 1F(a) of the Refugee Convention. Appeal allowed. Pourvoi accueilli. Grewal v. Canada (MCI) 215

[Indexed as: Grewal v. Canada (Minister of Citizenship and Immigration)] Swaranjit Singh Grewal, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-10747-12 2013 FC 627 Richard G. Mosley J. Heard: June 4, 2013 Judgment: June 11, 2013 Immigration and citizenship –––– Admission — Temporary entry (visi- tors) — Foreign workers –––– Applicant was Indian national and obtained la- bour market opinion for job in British Columbia — Visa officer rejected appli- cant’s application for temporary work permit as long-haul truck driver — Visa officer was concerned applicant might overstay his permit and found that he did not have sufficient command of English to carry out his duties — Applicant brought application for judicial review — Application dismissed — Visa of- ficer’s decision was transparent, intelligible conclusion which fell within range of possible outcomes and was not unreasonable — Officer clearly thought about language requirements and explained why she considered that greater level of English was required — There was no evidence that visa officer exercised her discretion regarding language levels for temporary foreign workers capriciously or unreasonably — Visa officer’s decisions that applicant’s language results equated to level below what particular job required did not diverge so far from predictable as to be procedurally unfair in absence of warning letter — Visa of- ficer’s exercise of her discretion in assessing whether applicant was likely to leave on schedule was in line with factual evidence and guiding jurisprudence. Immigration and citizenship –––– Admission — Application for temporary resident or immigrant visa — Powers and duties of visa or immigration of- ficer — Exercise of discretion –––– Applicant was Indian national and obtained labour market opinion for job in British Columbia — Visa officer rejected appli- cant’s application for temporary work permit as long-haul truck driver — Visa officer was concerned applicant might overstay his permit and found that he did not have sufficient command of English to carry out his duties — Applicant brought application for judicial review — Application dismissed — Officer clearly thought about language requirements and explained why she considered that greater level of English was required — Findings on language levels for temporary foreign workers were highly discretionary decisions — There was no 216 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

evidence that visa officer exercised her discretion capriciously or unreasona- bly — Visa officer’s exercise of her discretion in assessing whether applicant was likely to leave on schedule was in line with factual evidence and guiding jurisprudence. Immigration and citizenship –––– Admission — Application for temporary resident or immigrant visa — Powers and duties of visa or immigration of- ficer — Procedural fairness –––– Applicant was Indian national and obtained labour market opinion for job in British Columbia — Visa officer rejected appli- cant’s application for temporary work permit as long-haul truck driver — Visa officer was concerned applicant might overstay his permit and found that he did not have sufficient command of English to carry out his duties — Applicant brought application for judicial review — Application dismissed — Visa of- ficer’s decisions that applicant’s language results equated to level below what particular job required did not diverge so far from predictable as to be procedur- ally unfair in absence of warning letter — It was not clear what other informa- tion applicant would have provided that would have altered decision. Immigration and citizenship –––– Admission — Application for temporary resident or immigrant visa — Powers and duties of visa or immigration of- ficer — Relevant considerations –––– Applicant was Indian national and ob- tained labour market opinion for job in British Columbia — Visa officer rejected applicant’s application for temporary work permit as long-haul truck driver — Visa officer was concerned applicant might overstay his permit and found that he did not have sufficient command of English to carry out his duties — Appli- cant brought application for judicial review — Application dismissed — Visa officer’s exercise of her discretion in assessing whether applicant was likely to leave on schedule was in line with factual evidence and guiding jurispru- dence — Officer’s decision was not outside range of possible outcomes and was not unreasonable. Cases considered by Richard G. Mosley J.: Ayatollahi v. Canada (Minister of Citizenship & Immigration) (2003), 229 F.T.R. 98, 26 Imm. L.R. (3d) 184, 2003 FCT 248, 2003 CarswellNat 493, 2003 CFPI 248, 2003 CarswellNat 2044, [2003] F.C.J. No. 340 (Fed. T.D.) — referred to C.U.P.E. v. Ontario (Minister of Labour) (2003), 2003 CarswellOnt 1803, 2003 SCC 29, 2003 CarswellOnt 1770, 2003 C.L.L.C. 220-040, [2003] 1 S.C.R. 539, (sub nom. Canadian Union of Public Employees v. Ontario (Minister of Labour)) 173 O.A.C. 38, (sub nom. Canadian Union of Public Employees v. Ontario (Minister of Labour)) 66 O.R. (3d) 735 (note), 226 D.L.R. (4th) 193, (sub nom. Canadian Union of Public Employees v. Ontario (Minister of Labour)) 304 N.R. 76, 50 Admin. L.R. (3d) 1, REJB 2003-41592, [2003] S.C.J. No. 28 (S.C.C.) — referred to Grewal v. Canada (MCI) 217

Chen v. Canada (Minister of Citizenship & Immigration) (2005), 2005 CF 1378, 2005 CarswellNat 4950, 2005 FC 1378, 2005 CarswellNat 3219, [2005] F.C.J. No. 1674 (F.C.) — referred to Chhetri v. Canada (Minister of Citizenship & Immigration) (2011), 2011 Car- swellNat 2726, 2011 CF 872, 2011 CarswellNat 3595, 2011 FC 872, 2 Imm. L.R. (4th) 326, [2011] A.C.F. No. 1077, [2011] F.C.J. No. 1077 (F.C.) — referred to Grusas v. Canada (Minister of Citizenship & Immigration) (2012), 2012 FC 733, 2012 CarswellNat 1935, 2012 CF 733, 2012 CarswellNat 2611, 413 F.T.R. 82 (Eng.), 8 Imm. L.R. (4th) 88 (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 Li v. Canada (Minister of Citizenship & Immigration) (2012), 2012 CF 484, 2012 FC 484, 2012 CarswellNat 1183, 2012 CarswellNat 1960, 11 Imm. L.R. (4th) 84, [2012] F.C.J. No. 509 (F.C.) — referred to Masych v. Canada (Minister of Citizenship & Immigration) (2010), 2010 CF 1253, 2010 CarswellNat 5381, 2010 CarswellNat 4778, 2010 FC 1253, [2010] F.C.J. No. 1563 (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.) — referred to Nguyen c. Canada (Ministre de la Citoyennet´e & de l’Immigration) (2005), 2005 CarswellNat 2305, 2005 CF 1087, 2005 CarswellNat 5511, 2005 FC 1087 (F.C.) — referred to Qin v. Canada (Minister of Citizenship & Immigration) (2002), 2002 CFPI 815, 2002 CarswellNat 2974, 2002 FCT 815, 2002 CarswellNat 1895, [2002] F.C.J. No. 1098 (Fed. T.D.) — referred to Sketchley v. Canada (Attorney General) (2005), 2006 C.L.L.C. 230-002, 2005 CAF 404, 2005 CarswellNat 5119, [2006] 3 F.C.R. 392, 2005 FCA 404, 2005 CarswellNat 4194, 344 N.R. 257, 44 Admin. L.R. (4th) 4, 56 C.H.R.R. D/490, 263 D.L.R. (4th) 113, [2005] F.C.J. No. 2056 (F.C.A.) — referred to Tan v. Canada (Minister of Citizenship and Immigration) (2012), 2012 FC 1079, 2012 CarswellNat 3543, 2012 CarswellNat 4298, 2012 CF 1079, 12 Imm. L.R. (4th) 13 (F.C.) — referred to 218 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Generally — referred to s. 11 — considered s. 11(1) — considered 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. 200 — considered s. 200(1)(a) — considered s. 200(1)(b) — considered s. 200(3)(a) — considered Words and phrases considered: Canadian Language Benchmarks The Canadian Language Benchmarks (CLB) are the national standard for describing, measuring, and recognizing the English language proficiency of adult immigrants and prospective immigrants for living and working in Canada. The IELTS [International English Language Testing System] are one of several language tests which have been designated as being acceptable to assess an ap- plicant’s CLB score.

APPLICATION by applicant for judicial review of decision that applicant did not meet requirements of temporary foreign worker class.

Steven Meurrens, for Applicant Helen Park, for Respondent

Richard G. Mosley J.:

1 This is an application for judicial review pursuant to the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA], s 72(1), of a decision that the applicant did not meet the requirements of the Temporary For- eign Worker Class. 2 Mr. Grewal is an Indian national. This is his third application for a temporary work permit. He initially trained as a caregiver, but an appli- cation under the Live-in Caregiver program was rejected in November 2007. After retraining and acquiring experience working for a trucking company, he applied as a truck driver but was rejected in July 2011. Mr. Grewal v. Canada (MCI) Richard G. Mosley J. 219

Grewal then secured a Labour Market Opinion (LMO) for a job in Brit- ish Columbia and in September 2012 again applied to come to Canada on a temporary work permit as a long-haul truck driver. His application was rejected on October 1, 2012. The visa officer was concerned that he might overstay his permit and found that he did not have sufficient com- mand of English to carry out the duties of the position.

Issues: 3 The issues before the Court were: a. What is the standard of review? b. Did the visa officer err in basing her assessment of the required language skills on the general duties of NOC 7211 as listed on the Service Canada website rather than on the specific duties for the position listed in the offer of employment? c. Did the visa officer err in concluding that the position required an IELTS overall band level of five or by not explaining why the applicant’s CLB scores were insufficient? d. Did the visa officer fail in procedural fairness by not providing the applicant with an opportunity to address her concerns? e. Did the visa officer err in concluding that the applicant would not leave Canada at the end of his authorized stay without considering the relevant fact that the applicant’s immediate family were all in India? 4 The legislative and regulatory framework applicable to this case is section 11 of IRPA and section 200 of the Immigration and Refugee Pro- tection Regulations, SOR/2002-227 [IRPR]: Immigration and Refugee Protection Act S.C. 2001, c. 27 11. (1) A foreign national must, before entering Canada, apply to an officer for a visa or for any other document required by the regula- tions. The visa or document may be issued if, following an examina- tion, the officer is satisfied that the foreign national is not inadmissi- ble and meets the requirements of this Act. Immigration and Refugee Protection Regulations SOR/2002-227 200. (1) Subject to subsections (2) and (3) — and, in respect of a for- eign national who makes an application for a work permit before en- tering Canada, subject to section 87.3 of the Act — an officer shall issue a work permit to a foreign national if, following an examina- tion, it is established that 220 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

(a) the foreign national applied for it in accordance with Division 2; (b) the foreign national will leave Canada by the end of the pe- riod authorized for their stay under Division 2 of Part 9; (3) An officer shall not issue a work permit to a foreign national if (a) there are reasonable grounds to believe that the for- eign national is unable to perform the work sought; Loi sur l’immigration et la protection des r´efugi´es L.C. 2001, ch. 27 11. (1) L’´etranger doit, pr´ealablement a` son entr´ee au Canada, de- mander a` l’agent les visa et autres documents requis par r`eglement. L’agent peut les d´elivrer sur preuve, a` la suite d’un contrˆole, que l’´etranger n’est pas interdit de territoire et se conforme a` la pr´esente loi. R`eglement sur l’immigration et la protection des r´efugi´es DORS/2002-227 200. (1) Sous r´eserve des paragraphes (2) et (3), et de l’article 87.3 de la Loi dans le cas de l’´etranger qui fait la demande pr´ealablement a` son entr´ee au Canada, l’agent d´elivre un permis de travail a` l’´etranger si, a` l’issue d’un contrˆole, les el´´ ements ci-apr`es sont etablis:´ a) l’´etranger a demand´e un permis de travail conform´ement a` la section 2; b) il quittera le Canada a` la fin de la p´eriode de s´ejour qui lui est applicable au titre de la section 2 de la partie 9; (3) Le permis de travail ne peut etreˆ d´elivr´e a` l’´etranger dans les cas suivants: a) l’agent a des motifs raisonnables de croire que l’´etranger est incapable d’exercer l’emploi pour lequel le permis de travail est demand´e;

A. Standard of review; 5 The standard of review for an officer’s determination of eligibility under the temporary foreign worker program, including the interpretation of Immigration and Refugee Protection Regulations SOR/2002-227 sec- tion 200(3)(a), has been found in jurisprudence to be reasonableness ((New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9 (S.C.C.), at para 57; Khosa v. Canada (Minister of Citizenship & Immi- gration), 2009 SCC 12 (S.C.C.), at paragraph 59; Grusas v. Canada Grewal v. Canada (MCI) Richard G. Mosley J. 221

(Minister of Citizenship & Immigration), 2012 FC 733 (F.C.) at paras 11- 16). The standard of review for procedural fairness is correctness (C.U.P.E. v. Ontario (Minister of Labour), 2003 SCC 29 (S.C.C.), at para 100; Sketchley v. Canada (Attorney General), 2005 FCA 404 (F.C.A.) at paragraph 53).

A. Did the visa officer err in basing her assessment of the required language skills on the general duties of NOC 7211 as listed on the Service Canada website rather than on the specific duties for the position listed in the offer of employment? 6 The applicant argued that several of the duties for NOC 7411 which the officer listed in her reasons for decision were not duties for the spe- cific job he was offered, including obtaining permits for international cargo moves, using an on-board computer, completing loading manifests and company bills of lading, reading U.S. customs forms to find trans- port restrictions on particular products, and filling in forms to explain why shipments could be unloaded when there had been a mix-up in de- livery instructions. 7 He argued that this Court has found that adding job duties not speci- fied in the offer of employment was an error (Tan v. Canada (Minister of Citizenship and Immigration), 2012 FC 1079 (F.C.), at para 42). Section 8.3 of CIC’s Temporary Foreign Worker Guidelines manual (available online at http://www.cic.gc.ca/english/resources/manuals/fw/fw01- eng.pdf) states that while an officer’s assessment is not limited to the LMO, the officer should consider the particular job being offered. In ad- dition, the offer of employment in the present case indicated that the po- sition required driving as part of a two-person team or part of a convoy. The Officer should have considered what impact being accompanied by other drivers would have on the position’s language requirements. 8 The respondent argued that it was within the officer’s discretion to assess the job duties by referring to the NOC description as well as to the actual job offer and the LMO. There was no contradiction or difference between these different sources. The Court has found that a visa officer is under a duty to conduct an independent assessment of the applicant’s ability to perform the work, pursuant to IRPR 200(3)(a). A statement by the employer or by the applicant cannot be binding on the officer (Chen v. Canada (Minister of Citizenship & Immigration), 2005 FC 1378 (F.C.) at para 12). 222 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

9 Furthermore, the respondent argued, Mr. Grewal acknowledges that section 8.3 of the CIC Temporary Foreign Worker manual specifically says that the visa officer should not limit the assessment to the LMO. Therefore, a visa officer may determine that an applicant requires lan- guage ability different from that set forth in the LMO and job offer if relevant to the performance of the job duties. The LMO and job offer are not determinative of how the discretion will be exercised; they are proce- dural preconditions to the exercise of discretion and part of the factual landscape against which the application is assessed (Chhetri v. Canada (Minister of Citizenship & Immigration), 2011 FC 872 (F.C.) at para 17). 10 I find that the officer clearly thought about the language requirements and explained why she considered that a greater level of English ability was required. Even if I might have concluded otherwise, I believe that this was a transparent, intelligible conclusion which fell within the range of possible outcomes.

B. Did the visa officer err in concluding that the position required an IELTS overall band level of five or by not explaining why the applicant’s CLB scores were insufficient? 11 The Canadian Language Benchmarks (CLB) are the national standard for describing, measuring, and recognizing the English language profi- ciency of adult immigrants and prospective immigrants for living and working in Canada. The IELTS are one of several language tests which have been designated as being acceptable to assess an applicant’s CLB score. 12 The applicant argued that the Officer based her assessment solely on the IELTS two-word phrases and on the applicant’s overall proficiency, without considering the applicant’s differing abilities in listening, speak- ing, reading, and writing. His scores were: Date Listening Reading Writing Speaking Overall 13/04/2011 5.5 4.0 4.0 5.0 4.0 13 The IELTS website gives the following descriptions (http://www.ielts.org/test_takers_information/getting_my_results/my_test_score.aspx): Band 4 — Limited User: basic competence is limited to familiar sit- uations. Has frequent problems in understanding and expression. Is not able to use complex language. Band 5 — Modest User: has partial command of the language, cop- ing with overall meaning in most situations, though is likely to make Grewal v. Canada (MCI) Richard G. Mosley J. 223

many mistakes. Should be able to handle basic communication in own field. 14 The CLB Companion Tables to the Canadian Language Benchmarks 2000 (http://www.language.ca/display_page.asp?page_id=550) are more detailed, providing descriptions of the competencies at each level with examples of many tasks which a person would be able to perform 15 The applicant argued that the visa officer simply decided that he was a Limited User and did not consider properly whether he could meet the actual job requirements. 16 The respondent argued that Mr. Grewal is asking the Court to reinter- pret his IELTS score based on the criteria for the Federal Skilled Worker Class and the Canadian Experience Class, criteria which are not applica- ble to the temporary foreign worker program. An application for a tem- porary work permit comes under a regulatory regime which differs sig- nificantly from the abovementioned classes. The Court has previously cautioned that as the two processes and the associated rights differ, care must be taken in applying the jurisprudence from one to the other (Li v. Canada (Minister of Citizenship & Immigration), 2012 FC 484 (F.C.) at paras 23-25). 17 Findings on language levels for temporary foreign workers are highly discretionary decisions, on which there is little jurisprudence. Part 11 of the IRPR (“Workers”, sections 194-209), under which the present case falls, does not provide guidance on assessing language ability. The visa officer was required to make findings based on the evidence before her and there is no evidence in the present case that she exercised her discre- tion capriciously or unreasonably.

C. Did the visa officer fail in procedural fairness by not providing the applicant with an opportunity to address her concerns? 18 The applicant noted that it is not generally a procedural fairness re- quirement that work permit applicants be granted an opportunity to re- spond. However, he argued, there are exceptions, for instance, where an officer’s concerns do not arise directly from the IRPA or IRPR, when such an opportunity might be appropriate (Li v. Canada (Minister of Citizenship & Immigration), 2012 FC 484 (F.C.)). In this case, the Ser- vice Canada website does not list any specific language requirements for NOC 7411. The applicant included documentation of his secondary and post-secondary courses in English, which was not referred to by the Of- ficer in the reasons for decision, and he included his IELTS results. He 224 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

argued that there was nothing to suggest that the Officer assessed the requirement by any objective standard; instead, she decided on her own what level of English was required and that the applicant did not have this level. Accordingly, procedural fairness required that she give him an opportunity to respond. 19 The respondent argued that the onus was on the applicant to satisfy the visa officer of all elements of the application. Work permit applicants are not generally granted an opportunity to respond, particularly when there is no evidence of serious consequences, which has been found to be the case when applicants are able to re-apply and there is no proof that doing so will cause them hardship. Mr. Grewal presented no evidence to suggest that being forced to re-apply would cause any serious conse- quences (Qin v. Canada (Minister of Citizenship & Immigration), 2002 FCT 815 (Fed. T.D.) at para 5; Masych v. Canada (Minister of Citizenship & Immigration), 2010 FC 1253 (F.C.) at para 30; Li v. Canada (Minister of Citizenship & Immigration), 2012 FC 484 (F.C.) at para 31). 20 I find that the visa officer’s decisions that first, the applicant’s IELTS results equated to Band 4, not Band 5, and second, for this particular job Band 5 was required, did not diverge so far from the predictable as to be procedurally unfair in the absence of a warning letter. It is not obvious what other information the applicant could have provided that would have altered her findings as to the language requirement. In addition, there is no lasting consequence from this refusal, as the applicant can apply again if he wishes.

D. Did the visa officer err in concluding that the applicant would not leave Canada at the end of his authorized stay without considering the relevant fact that the applicant’s immediate family were all in India? 21 The applicant argued that the visa officer did not provide sufficiently clear reasons for concluding that Mr. Grewal would not leave Canada. He argued that she appeared to have concluded that because he was young and single, and Canada is wealthier than India, he would automat- ically breach Canadian law and stay on, and this even though his family is all in India, he has maintained stable employment in India, and he is educated. He submitted that the failure to substantiate her conclusion rendered it unreasonable, being neither transparent nor intelligible. Grewal v. Canada (MCI) Richard G. Mosley J. 225

22 The respondent argued that the Officer considered all the relevant in- formation. She assessed his work experience in India, his young age, his being single, his being mobile, and his socioeconomic incentive to re- main in Canada. The evidentiary onus was on him and the visa officer was entitled to examine the totality of circumstances. The weight as- signed to the factors is discretionary; the officer is assessing the broader picture (Nguyen c. Canada (Ministre de la Citoyennet´e & de l’Immigration), 2005 FC 1087 (F.C.) at paras 5-7; Ayatollahi v. Canada (Minister of Citizenship & Immigration), 2003 FCT 248 (Fed. T.D.) at para 23). 23 I find that the visa officer’s exercise of her discretion in assessing whether the applicant was likely to leave on schedule was in line with the factual evidence and the guiding jurisprudence. Her finding was not outside the range of possible, acceptable outcomes and was, therefore, not unreasonable.

Certified Question: 24 The applicant has proposed that the following question be certified as a serious question of general importance: Where an officer has concerns over whether an applicant is able to perform and carry out the employment of a job offer, what are the standards, if any, that an officer must use in determining a position language requirement? 25 The respondent opposes certification of these questions on the grounds that there is no genuine disagreement on the standard and that an answer would not be dispositive in this case. I agree and do not certify a question.

Judgment THIS COURT’S JUDGMENT is that the application is denied. No question is certified. Application dismissed. 226 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

[Indexed as: Xuan v. Canada (Minister of Citizenship and Immigration)] Ming Xuan, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-8541-12 2013 FC 673 James W. O’Reilly J. Heard: June 11, 2013 Judgment: June 18, 2013 Immigration and citizenship –––– Refugee protection — Practice and proce- dure in refugee claims — Judicial review — Natural justice — Bias –––– Ap- plicant X, who sought refugee status, had requested that board member recuse himself on basis that member had not approved any of 127 refugee claims he had considered in 2011 — Member refused to recuse himself — Member con- cluded that X failed to establish identity or provide credible evidence to support claim — Member dismissed X’s claim for refugee status — X brought applica- tion for judicial review — Application dismissed — Board did not treat X un- fairly by rejecting recusal motion — Statistics alone could not give rise to appre- hension of bias. Immigration and citizenship –––– Refugee protection — Practice and proce- dure in refugee claims — Judicial review — Natural justice — Evi- dence –––– Applicant X sought refugee status — Member concluded that X failed to establish identity or provide credible evidence to support claim — Member dismissed X’s claim for refugee status — X brought application for ju- dicial review — Application dismissed — Board’s conclusion that X failed to support claim with credible evidence was not unreasonable. Cases considered by James W. O’Reilly J.: Committee for Justice & Liberty v. Canada (National Energy Board) (1976), [1978] 1 S.C.R. 369, 68 D.L.R. (3d) 716, 9 N.R. 115, 1976 CarswellNat 434, 1976 CarswellNat 434F, [1976] S.C.J. No. 118, [1976] A.C.S. No. 118 (S.C.C.) — considered Jiang v. Canada (Minister of Citizenship and Immigration) (2012), 2012 Car- swellNat 3386, 2012 FC 1067, 2012 CF 1067, 2012 CarswellNat 4141 (F.C.) — referred to Xuan v. Canada (MCI) James W. O’Reilly J. 227

Turoczi v. Canada (Minister of Citizenship and Immigration) (2012), 2012 Car- swellNat 4983, 2012 CF 1423, 2012 CarswellNat 5412, 2012 FC 1423, 45 Admin. L.R. (5th) 242 (F.C.) — referred to Victoria v. Canada (Minister of Citizenship & Immigration) (2009), 2009 Car- swellNat 1165, 2009 FC 388, 2009 CF 388, 2009 CarswellNat 6677 (F.C.) — referred to Zupko v. Canada (Minister of Citizenship & Immigration) (2010), 94 Imm. L.R. (3d) 312, 2010 FC 1319, 2010 CarswellNat 4971, 2010 CF 1319, 2010 Car- swellNat 5678, [2010] F.C.J. No. 1637 (F.C.) — referred to

APPLICATION for judicial review of decision that applicant was not Conven- tion refugee.

Lindsey Weppler, for Applicant Angelina Marinos, for Respondent

James W. O’Reilly J.: I. Overview 1 Mr Ming Xuan claimed refugee protection in Canada on the basis that he fears religious persecution in China as a Christian. He says that the Public Security Bureau (PSB) in China raided the house church he at- tended and is now seeking his arrest. 2 Prior to his hearing before a member of the Immigration and Refugee Board, Mr Xuan requested the Board member to recuse himself on the basis that his acceptance rate for refugee claims in 2011 was zero. Mr Xuan argued that this evidence gave rise to a reasonable apprehension of bias on the Board member’s part. 3 The member dismissed Mr Xuan’s request on the basis that statistics alone cannot give rise to a reasonable apprehension of bias. He went on to consider the merits of Mr Xuan’s claim and dismissed it, concluding that Mr Xuan had failed to establish his identity or provide credible evi- dence to support his claim. 4 Mr Xuan argues that the Board member treated him unfairly by re- jecting his recusal motion. Further, he submits that the Board’s findings regarding his identity documents and other evidence were unreasonable. He asks me to quash the Board’s decision and order a new hearing before a different member. 5 I can find no basis for overturning the Board’s decision and must, therefore, dismiss this application for judicial review. In my view, the Board did not treat Mr Xuan unfairly by rejecting his recusal motion; this 228 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

Court has confirmed that statistics alone do not give rise to an apprehen- sion of bias. Further, the Board’s conclusion that Mr Xuan had failed to support his claim with credible evidence was not unreasonable. 6 There are two issues: 1. Did the Board treat Mr Xuan unfairly by dismissing his recusal motion? 2. Did the Board unreasonably conclude that Mr Xuan’s refugee claim was not supported by credible evidence?

II. The Board’s Decision (1) On the Recusal Motion 7 The Board cited the well-accepted standard for a reasonable appre- hension of bias from Committee for Justice & Liberty v. Canada (National Energy Board) (1976), [1978] 1 S.C.R. 369 (S.C.C.). It also referred to decisions of the Federal Court in which judges have con- cluded that statistics relating to the acceptance rates of Board members do not, in themselves, establish a reasonable apprehension of bias: Victoria v. Canada (Minister of Citizenship & Immigration), 2009 FC 388 (F.C.); Zupko v. Canada (Minister of Citizenship & Immigration), 2010 FC 1319 (F.C.). 8 Accordingly, the Board concluded that Mr Xuan had provided insuf- ficient grounds for his motion. It found that a reasonable, informed per- son, viewing the matter realistically and practically, would not conclude that the Board would fail to decide Mr Xuan’s claim fairly.

(2) On the Merits 9 The Board accepted that Mr Xuan was a citizen of China. However, the evidence relating to his personal identity was unsatisfactory. It re- ferred to the following problems with the evidence: • Mr Xuan stated that he had never travelled outside of China until he came to Canada. He later testified that he had previously trav- elled abroad. The other trips were recorded in his passport and corroborated by various travel visas. • In his application for a Canadian visa, Mr Xuan stated that he was General Director of the Shenyang Huatai Hospital and had been invited to Canada by an official at a hospital in Hamilton, Ontario. The Board verified that an invitation had been sent to a “Xuan Xuan v. Canada (MCI) James W. O’Reilly J. 229

Ming” but the official in Hamilton had no personal knowledge of Mr Xuan. • Other identity documents provided by Mr Xuan apparently were given to him by a friend, but no evidence was provided about their origin. • A document showing Mr Xuan’s work record in a factory mis- stated his age by four years. Mr Xuan had no explanation for the discrepancy. The work record also contradicted Mr Xuan’s testi- mony about where he worked at various points in time. • Mr Xuan’s Hukou contained a page that did not match the others. Mr Xuan could not explain why that was so. Further, he could not explain an amendment that was made to his Hukou by the PSB at a point in time when the PSB was allegedly looking for him. 10 The Board concluded that Mr Xuan’s credibility was discredited to the extent that it could not believe his claim to be a Christian in China who was sought by the PSB. This conclusion was reinforced by Mr Xuan’s inconsistent testimony about when he had joined an underground church. 11 The Board also considered evidence that Mr Xuan was a practicing Christian in Canada. However, it found that this evidence was acquired for the purposes of supporting an unmeritorious refugee claim. 12 The Board found that Mr Xuan was neither a Convention refugee nor a person in need of protection.

III. Issue One - Did the Board treat Mr Xuan unfairly by dismissing his recusal motion? 13 Mr Xuan presented the Board with a copy of a report from the CBC describing a study conducted by Professor Sean Rehaag of Osgoode Hall Law School about the acceptance rates of members of the Immigration and Refugee Board. That report stated that the Board member had ap- proved none of the 127 refugee claims he had considered in 2011. Mr Xuan argues that this evidence, on its own, showed a reasonable appre- hension of bias on the part of the individual Board member. 14 Before me, Mr Xuan sought to introduce further evidence about the Board member’s rate of acceptance. I need not consider that evidence because it adds little to the information that was already before the Board at the time of the hearing. 230 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

15 In my view, the Board correctly concluded that statistics alone do not normally establish a reasonable apprehension of bias. This was con- firmed recently in a decision of Justice Russel Zinn in which he cites numerous other factors that would be relevant to that issue: Turoczi v. Canada (Minister of Citizenship and Immigration), 2012 FC 1423 (F.C.), at para 15. 16 Accordingly, I cannot conclude that the Board erred in dismissing Mr Xuan’s recusal motion.

IV. Issue Two- Did the Board unreasonably conclude that Mr Xuan’s refugee claim was not supported by credible evidence? 17 Mr Xuan argues that the Board’s assessment of his identity docu- ments and other evidence was unreasonable. He believes the Board re- viewed his evidence microscopically and jumped to unreasonable con- clusions about it. Further, Mr Xuan submits that the Board failed to consider the risk that faces him as a practising Christian if he is returned to China. In support of his claim, Mr Xuan provided a letter from his pastor in Canada and a baptismal certificate. 18 In my view, the Board provided clear reasons for disbelieving Mr Xuan’s account of events in China and for doubting his personal identity. The sole remaining question is whether the Board adequately considered whether, notwithstanding those problems with Mr Xuan’s claim, there remained a reasonable chance that Mr Xuan would face a risk of relig- ious persecution in China. 19 As I read the Board’s decision, it doubted all of Mr Xuan’s assertions, including his claim to be a genuine Christian, because of the problems with the other evidence presented in support of his claim. It found that he had engaged in religious activities in order to bolster an unmeritorious claim. 20 In my view, this finding was available to the Board on the evidence and, therefore, I cannot conclude that it was unreasonable. The Board was entitled to permit its extensive credibility findings relating to Mr Xuan’s identity and his experiences in China to influence its assessment of the genuineness of Mr Xuan’s religious convictions in Canada: Jiang v. Canada (Minister of Citizenship and Immigration), 2012 FC 1067 (F.C.), at paras 27-28. Xuan v. Canada (MCI) James W. O’Reilly J. 231

V. Conclusion and Disposition 21 The Board provided a valid basis for rejecting Mr Xuan’s recusal mo- tion. In addition, its conclusion that Mr Xuan’s refugee claim was unsup- ported by reliable evidence was not unreasonable. Therefore, I must dis- miss this application for judicial review. 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 dismissed. 2. No question of general importance is stated. Application dismissed. 232 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

[Indexed as: Dehghan v. Canada (Minister of Citizenship and Immigration)] Mohammad Dehghan, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-6512-12 2013 FC 680 James Russell J. Heard: May 2, 2013 Judgment: June 18, 2013 Immigration and citizenship –––– Admission — Immigrants — Skilled workers — Categories (point system) — Education — Credentials –––– Per- manent resident applicant was citizen of Iran and had received eight-year doc- torate degree in medicine and had completed four-year specialization in derma- tology — Applicant applied for permanent residence as federal skilled worker — Visa officer denied application on ground that applicant was one point short of minimum required for permanent residence visa because doctorate degree was not considered to be graduate degree — Applicant brought applica- tion for judicial review — Application dismissed — Applicant submitted insuf- ficient evidence to demonstrate that more points should have been awarded for education — Officer was under no duty to seek additional information from ap- plicant regarding nature of degrees — As per previous jurisprudence, applicant’s argument that officer was under obligation to know situation in Iran regarding medical degrees was rejected. Immigration and citizenship –––– Admission — Immigrants — Skilled workers — Categories (point system) — Miscellaneous –––– Substituted eval- uation — Permanent resident applicant was citizen of Iran and had received eight-year doctorate degree in medicine and had completed four-year specializa- tion in dermatology — Applicant applied for permanent residence as federal skilled worker — Visa officer denied application on ground that applicant was one point short of minimum required for permanent residence visa because doc- torate degree was not considered to be graduate degree — Applicant brought ap- plication for judicial review — Application dismissed — Applicant submitted insufficient evidence to demonstrate that more points should have been awarded for education — Officer’s discretion to consider substituted evaluation was highly discretionary — Applicant did not provide any reasons why officer should apply substituted evaluation. Dehghan v. Canada (MCI) 233

Cases considered by James Russell J.: Adu v. Canada (Minister of Citizenship & Immigration) (2005), 2005 FC 565, 2005 CarswellNat 1047, 2005 CF 565, 2005 CarswellNat 3483, [2005] F.C.J. No. 693 (F.C.) — considered Ali v. Canada (Minister of Citizenship & Immigration) (2011), 2011 Car- swellNat 4591, 2011 FC 1247, 2011 CF 1247, 2011 CarswellNat 5676, 398 F.T.R. 303 (Eng.), [2011] F.C.J. No. 1536 (F.C.) — referred to Bellido v. Canada (Minister of Citizenship & Immigration) (2005), 2005 Car- swellNat 889, 2005 FC 452, 2005 CarswellNat 7517, 2005 CF 452, [2005] F.C.J. No. 572 (F.C.) — 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 Public Safety & Emergency Preparedness) v. Martinez- Brito (2012), 9 Imm. L.R. (4th) 221, 2012 FC 438, 2012 CarswellNat 1060, 2012 CarswellNat 1730, 2012 CF 438, 42 Admin. L.R. (5th) 179, 408 F.T.R. 92 (Eng.) (F.C.) — considered Choi v. Canada (Minister of Citizenship & Immigration) (2008), 2008 Car- swellNat 1372, 2008 FC 577, 2008 CarswellNat 6473, 2008 CF 577, [2008] F.C.J. No. 734 (F.C.) — referred to Fernandes v. Canada (Minister of Citizenship & Immigration) (2008), 2008 CarswellNat 465, 71 Imm. L.R. (3d) 134, 2008 FC 243, 2008 CarswellNat 6509, 2008 CF 243, [2008] F.C.J. No. 302 (F.C.) — referred to Hamza v. Canada (Minister of Citizenship and Immigration) (2013), 2013 Car- swellNat 1081, 2013 CF 264, 2013 FC 264, 2013 CarswellNat 543 (F.C.) — referred to Hanif c. Canada (Ministre de la Citoyennet´e & de l’Immigration) (2009), 2009 CarswellNat 706, 2009 FC 68, 2009 CarswellNat 152, 2009 CF 68 (F.C.) — referred to Hernandez v. Canada (Minister of Citizenship & Immigration) (2004), 43 Imm. L.R. (3d) 63, 2004 FC 1398, 2004 CarswellNat 3658, 2004 CarswellNat 5382, 2004 CF 1398, [2004] F.C.J. No. 1698 (F.C.) — referred to Jogiat v. Canada (Minister of Citizenship & Immigration) (2009), 85 Imm. L.R. (3d) 297, 2009 CarswellNat 3844, 2009 FC 815 (F.C.) — referred to Khan v. Canada (Minister of Citizenship & Immigration) (2011), 2011 FC 1314, 2011 CarswellNat 4720, 2011 CF 1314, 2011 CarswellNat 5634, 3 Imm. L.R. (4th) 306, 400 F.T.R. 107 (Eng.) (F.C.) — referred to 234 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

Khosa v. Canada (Minister of Citizenship & Immigration) (2009), 82 Admin. L.R. (4th) 1, 2009 SCC 12, 2009 CarswellNat 434, 2009 CarswellNat 435, 304 D.L.R. (4th) 1, 77 Imm. L.R. (3d) 1, 385 N.R. 206, (sub nom. Canada (Citizenship & Immigration) v. Khosa) [2009] 1 S.C.R. 339, [2009] S.C.J. No. 12 (S.C.C.) — considered Kniazeva v. Canada (Minister of Citizenship & Immigration) (2006), 2006 Car- swellNat 472, 2006 CF 268, 2006 CarswellNat 2836, 52 Imm. L.R. (3d) 298, 2006 FC 268, 288 F.T.R. 282 (Eng.), [2006] A.C.F. No. 336, [2006] F.C.J. No. 336 (F.C.) — referred to Kuhathasan v. Canada (Minister of Citizenship & Immigration) (2008), 2008 CarswellNat 2637, 2008 CF 457, 2008 CarswellNat 1029, 2008 FC 457, 72 Imm. L.R. (3d) 57, [2008] F.C.J. No. 587 (F.C.) — referred to Lee v. Canada (Minister of Citizenship & Immigration) (2011), 2011 Car- swellNat 1893, 2011 FC 617, 2011 CF 617, 2011 CarswellNat 3889, 390 F.T.R. 166 (Eng.) (F.C.) — referred to Liao v. Canada (Minister of Citizenship & Immigration) (2000), 2000 Car- swellNat 2884, 2000 CarswellNat 5974, [2000] F.C.J. No. 1926 (Fed. T.D.) — considered Mahouri v. Canada (Minister of Citizenship and Immigration) (2013), 2013 CF 244, 2013 FC 244, 2013 CarswellNat 548, 2013 CarswellNat 851 (F.C.) — followed Malik v. Canada (Minister of Citizenship & Immigration) (2009), 2009 CF 1283, 2009 CarswellNat 5826, 2009 FC 1283, 2009 CarswellNat 4345, [2009] F.C.J. No. 1643 (F.C.) — referred to Mina v. Canada (Minister of Citizenship & Immigration) (2010), 2010 CF 1182, 2010 CarswellNat 5189, 2010 FC 1182, 2010 CarswellNat 4463 (F.C.) — referred to N.L.N.U. v. Newfoundland & Labrador (Treasury Board) (2011), 2011 Car- swellNfld 414, 2011 CarswellNfld 415, 2011 SCC 62, 38 Admin. L.R. (5th) 255, (sub nom. Nfld. and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board)) 2011 C.L.L.C. 220-008, (sub nom. Newfoundland & Labrador Nurses’ Union v. Newfoundland & Labrador (Treasury Board)) 424 N.R. 220, 340 D.L.R. (4th) 17, D.T.E. 2012T-7, (sub nom. Newfoundland & Labrador Nurses’ Union v. Newfoundland & Labrador (Treasury Board)) [2011] 3 S.C.R. 708, 213 L.A.C. (4th) 95, 97 C.C.E.L. (3d) 199, (sub nom. Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board)) 986 A.P.R. 340, (sub nom. Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board)) 317 Nfld. & P.E.I.R. 340, [2011] S.C.J. No. 62 (S.C.C.) — considered Nayyar v. Canada (Minister of Citizenship & Immigration) (2007), 62 Imm. L.R. (3d) 78, 2007 CF 199, 2007 CarswellNat 5327, 2007 FC 199, 2007 CarswellNat 559, [2007] F.C.J. No. 342 (F.C.) — considered Dehghan v. Canada (MCI) 235

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 Oladipo v. Canada (Minister of Citizenship & Immigration) (2008), 2008 FC 366, 2008 CarswellNat 819, 2008 CarswellNat 1483, 2008 CF 366, [2008] F.C.J. No. 468 (F.C.) — considered Requidan v. Canada (Minister of Citizenship & Immigration) (2009), 2009 Car- swellNat 514, 2009 FC 237, 2009 CF 237, 2009 CarswellNat 6685, [2009] F.C.J. No. 280 (F.C.) — referred to Rukmangathan v. Canada (Minister of Citizenship & Immigration) (2004), 247 F.T.R. 147, 2004 CarswellNat 488, 2004 FC 284, 2004 CF 284, 2004 Car- swellNat 1673, [2004] A.C.F. No. 317, [2004] F.C.J. No. 317 (F.C.) — re- ferred to Sedighi v. Canada (Minister of Citizenship and Immigration) (2013), 2013 CF 445, 2013 FC 445, 2013 CarswellNat 1303, 2013 CarswellNat 1518 (F.C.) — followed Sharifi v. Canada (Minister of Citizenship and Immigration) (2013), 2013 Car- swellNat 1334, 2013 FC 453, 2013 CF 453, 2013 CarswellNat 2001 (F.C.) — considered Zhong v. Canada (Minister of Citizenship & Immigration) (2011), 2011 Car- swellNat 3181, 2011 FC 980, 100 Imm. L.R. (3d) 41, 2011 CF 980, 2011 CarswellNat 3932 (F.C.) — referred to Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 11(1) — considered s. 72(1) — pursuant to s. 87.3(1) [en. 2008, c. 28, s. 118] — considered s. 87.3(2) [en. 2008, c. 28, s. 118] — considered s. 87.3(3) [en. 2008, c. 28, s. 118] — considered s. 87.3(3.1) [en. 2012, c. 19, s. 706(5)] — considered s. 87.3(3.2) [en. 2012, c. 19, s. 706(5)] — considered s. 87.3(4) [en. 2008, c. 28, s. 118] — considered Regulations considered: Canada Shipping Act, 2001, S.C. 2001, c. 26 Marine Personnel Regulations, SOR/2007-115 Generally — referred to 236 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

Immigration and Refugee Protection Act, S.C. 2001, c. 27 Immigration and Refugee Protection Regulations, SOR/2002-227 Generally — referred to s. 76(3) — considered s. 78(2) — considered s. 83(1) — considered s. 83(2) — considered

APPLICATION by permanent resident applicant for judicial review of decision of Visa Officer refusing application for permanent residence as federal skilled worker.

Krassina Kostadinov, for Applicant Jane Stewart, for Respondent

James Russell J.:

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 Visa Officer (Officer) of the Embassy of Canada, Visa Sec- tion, in Warsaw, Poland, dated 9 March 2012 (Decision), which refused the Applicant’s application for permanent residence in Canada as a mem- ber of the Federal Skilled Worker class.

Background 2 The Applicant is a 42-year-old citizen of Iran. He applied for perma- nent residence in Canada as a Federal Skilled Worker in December, 2009. The Applicant self-evaluated himself as having 70 points under the Federal Skilled Worker grid, and in his cover letter requested a substi- tuted evaluation if he did not meet the required number of points. 3 The Applicant received an eight-year Doctorate Degree in the field of Medicine from Shahid Beheshti University of Medical Sciences in 1997. He has submitted a letter along with this application from the Education Department of the Ministry of Health, Treatment and Medical Education in Iran verifying that this degree is considered a Master’s degree in Iran (Applicant’s Record, pages 126-127). 4 After completing his Doctorate Degree, the Applicant obtained a spe- cialization in dermatology from Shahid Beheshti University of Medical Sciences. This is a four-year program which the Applicant completed in 2001. In total, the Applicant studied for 24 years. Dehghan v. Canada (MCI) James Russell J. 237

5 The Applicant’s wife also completed a Doctorate Degree in Medicine, and went on to do a four-year specialization in cardiology. In total, she studied for 23 years. 6 By letter dated 9 March 2012, the Canadian Embassy in Warsaw in- formed the Applicant that he had not obtained the minimum number of points required for a permanent residence visa. The Officer awarded the Applicant 66 points; the minimum required is 67. The missing points were due to the fact that the Officer did not consider the Applicant and his wife’s Iranian Doctorate Degrees to be graduate degrees. 7 The Applicant’s representative wrote to the Officer on 23 April 2012 requesting a review of the Decision and providing an explanation with respect to the Iranian educational system. The Officer responded on 5 June 2012 stating that the Decision was final and would not be reconsidered.

Decision under Review 8 The Decision in this case consists of the letter dated 9 March 2012 (Refusal Letter), as well as the Computer Assisted Immigration Process- ing System (CAIPS) Notes made by the Officer. 9 The Officer stated that the Applicant had completed a single degree which allowed him to practice medicine; there was no indication that there was a degree awarded prior to this degree or that the degree was awarded by a faculty of graduate studies. With regards to his specialist certificate in dermatology, the Officer said there was no indication that this certificate was awarded by a faculty of graduate studies. In coming to this conclusion, the Officer cited Operational Manual 6a (OP 6a), which says that: Medical doctor degrees are generally first-level university creden- tials, in the same way that a Bachelor of Law or a Bachelor of Sci- ence in Pharmacology is a first level, albeit “professional” degree and should be awarded 20 points. If it is a second-level degree and if, for example, it belongs to a Faculty of Graduate Studies, 25 points may be awarded. If a bachelor’s credential is a prerequisite to the credential, but the credential itself is still considered a first-level de- gree, then 22 points would be appropriate. 10 As the Officer considered the Applicant to have obtained a single de- gree followed by a specialist certificate, the Applicant was awarded 22 points for two or more university educational credentials at the bache- lor’s level and at least 15 years of full-time studies. The Applicant’s 238 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

spouse was awarded 4 points for the same level of studies. This rendered the Applicant’s total 66 points, which was insufficient to meet the mini- mum level of 67 points. As such, the Applicant did not meet the require- ments for permanent residence under the Federal Skilled Worker class.

Issues 11 The Applicant raises the following issue in this application: a. Was the Officer’s finding unreasonable in awarding the Applicant 22 points for education, despite evidence indicating that the Appli- cant had completed a specialization in dermatology? b. Did the Officer err in failing to exercise his discretion to approve the Applicant’s skilled worker application, given the unique cir- cumstances of this case?

Standard of Review 12 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 re- viewing court undertake a consideration of the four factors comprising the standard of review analysis. 13 The first issue involves an evaluation of the Officer’s award of points under the Federal Skilled Worker category. This is a fact-based assess- ment, and the case law has established that this is reviewable on a rea- sonableness standard (Zhong v. Canada (Minister of Citizenship & Immi- gration), 2011 FC 980 (F.C.) at paragraph 11; Malik v. Canada (Minister of Citizenship & Immigration), 2009 FC 1283 (F.C.) at paragraph 22). 14 The second issue is a review of the exercise of the Officer’s discre- tion in consideration of the Applicant’s application. This is reviewable on a standard of reasonableness (Kniazeva v. Canada (Minister of Citizenship & Immigration), 2006 FC 268 (F.C.); Ali v. Canada (Minister of Citizenship & Immigration), 2011 FC 1247 (F.C.); Hamza v. Canada (Minister of Citizenship and Immigration), 2013 FC 264 (F.C.)). However, issues around whether the Officer failed to actually consider the Applicant’s request for a substituted evaluation are evaluated are evaluated on a standard of correctness (Khan v. Canada (Minister of Citizenship & Immigration), 2011 FC 1314 (F.C.) at paragraph 23). Dehghan v. Canada (MCI) James Russell J. 239

15 When reviewing a decision on the standard of reasonableness, the analysis will be concerned with “the existence of justification, trans- parency and intelligibility within the decision-making process [and also with] whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.” See Dun- smuir, above, at 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 unrea- sonable in the sense that it falls outside the “range of possible, acceptable outcomes which are defensible in respect of the facts and law.” 16 In his arguments, the Applicant takes issue with the adequacy of the Officer’s reasons. He submits that this is a matter of procedural fairness. However in N.L.N.U. v. Newfoundland & Labrador (Treasury Board), 2011 SCC 62 (S.C.C.) [Newfoundland Nurses], the Supreme Court of Canada held at 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.” Thus, the adequacy of the reasons will be analysed along with the reasonableness of the Deci- sion as a whole. 17 The Applicant also raises an alternative argument to the first issue which involves his opportunity to adequately respond to the Officer’s concerns. This is a matter of procedural fairness (Kuhathasan v. Canada (Minister of Citizenship & Immigration), 2008 FC 457 (F.C.) at para- graph 18), and as stated by the Supreme Court in C.U.P.E. v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539 (S.C.C.) at paragraph 100, “it is for the courts, not the Minister, to provide the legal answer to procedu- ral fairness questions.” Accordingly, these issues will be reviewed on a standard of correctness.

Statutory Provisions 18 The following provisions of the Act are applicable in these proceed- ings: Application before entering 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 regula- tions. The visa or document may be issued if, following an examina- tion, the officer is satisfied that the foreign national is not inadmissi- ble and meets the requirements of this Act. 240 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

[...] 87.3 (1) This section applies to applications for visas or other docu- ments made under subsection 11(1), other than those made by per- sons referred to in subsection 99(2), to sponsorship applications made by persons referred to in subsection 13(1), to applications for permanent resident status under subsection 21(1) or temporary resi- dent status under subsection 22(1) made by foreign nationals in Can- ada, to applications for work or study permits and to requests under subsection 25(1) made by foreign nationals outside Canada. (2) The processing of applications and requests is to be conducted in a manner that, in the opinion of the Minister, will best support the attainment of the immigration goals established by the Government of Canada. (3) For the purposes of subsection (2), the Minister may give instruc- tions with respect to the processing of applications and requests, in- cluding instructions (a) establishing categories of applications or requests to which the instructions apply; (a.1) establishing conditions, by category or otherwise, that must be met before or during the processing of an application or request; (b) establishing an order, by category or otherwise, for the processing of applications or requests; (c) setting the number of applications or requests, by category or otherwise, to be processed in any year; and (d) providing for the disposition of applications and requests, in- cluding those made subsequent to the first application or request. (3.1) An instruction may, if it so provides, apply in respect of pend- ing applications or requests that are made before the day on which the instruction takes effect. (3.2) For greater certainty, an instruction given under paragraph (3)(c) may provide that the number of applications or requests, by category or otherwise, to be processed in any year be set at zero. (4) Officers and persons authorized to exercise the powers of the Minister under section 25 shall comply with any instructions before processing an application or request or when processing one. If an application or request is not processed, it may be retained, returned or otherwise disposed of in accordance with the instructions of the Minister. Dehghan v. Canada (MCI) James Russell J. 241

Visa et documents 11. (1) L’´etranger doit, pr´ealablement a` son entr´ee au Canada, de- mander a` l’agent les visa et autres documents requis par r`eglement. L’agent peut les d´elivrer sur preuve, a` la suite d’un contrˆole, que l’´etranger n’est pas interdit de territoire et se conforme a` la pr´esente loi. [...] 87.3 (1) Le pr´esent article s’applique aux demandes de visa et autres documents vis´ees au paragraphe 11(1) — sauf a` celle faite par la per- sonne vis´ee au paragraphe 99(2) — , aux demandes de parrainage faites par une personne vis´ee au paragraphe 13(1), aux demandes de statut de r´esident permanent vis´ees au paragraphe 21(1) ou de r´esi- dent temporaire vis´ees au paragraphe 22(1) faites par un etranger´ se trouvant au Canada, aux demandes de permis de travail ou d’´etudes ainsi qu’aux demandes pr´evues au paragraphe 25(1) faites par un etranger´ se trouvant hors du Canada. (2) Le traitement des demandes se fait de la mani`ere qui, selon le ministre, est la plus susceptible d’aider l’atteinte des objectifs fix´es pour l’immigration par le gouvernement f´ed´eral. (3) Pour l’application du paragraphe (2), le ministre peut donner des instructions sur le traitement des demandes, notamment des instructions: a) pr´evoyant les groupes de demandes a` l’´egard desquels s’appliquent les instructions; a.1) pr´evoyant des conditions, notamment par groupe, a` remplir en vue du traitement des demandes ou lors de celui-ci; b) pr´evoyant l’ordre de traitement des demandes, notamment par groupe; c) pr´ecisant le nombre de demandes a` traiter par an, notamment par groupe; d) r´egissant la disposition des demandes dont celles faites de nouveau. (3.1) Les instructions peuvent, lorsqu’elles le pr´evoient, s’appliquer a` l’´egard des demandes pendantes faites avant la date o`u elles prennent effet. (3.2) Il est entendu que les instructions donn´ees en vertu de l’alin´ea (3)c) peuvent pr´eciser que le nombre de demandes a` traiter par an, notamment par groupe, est de z´ero. (4) L’agent — ou la personne habilit´ee a` exercer les pouvoirs du ministre pr´evus a` l’article 25 — est tenu de se conformer aux instruc- 242 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

tions avant et pendant le traitement de la demande; s’il ne proc`ede pas au traitement de la demande, il peut, conform´ement aux instruc- tions du ministre, la retenir, la retourner ou en disposer. 19 The following provisions of the Regulations are applicable in this proceeding: Circumstances for officer’s substituted evaluation 76 (3) Whether or not the skilled worker has been awarded the mini- mum number of required points referred to in subsection (2), an of- ficer may substitute for the criteria set out in paragraph (1)(a) their evaluation of the likelihood of the ability of the skilled worker to become economically established in Canada if the number of points awarded is not a sufficient indicator of whether the skilled worker may become economically established in Canada. [...] Education (25 points) 78 (2) A maximum of 25 points shall be awarded for a skilled worker’s education as follows: (a) 5 points for a secondary school educational credential; (b) 12 points for a one-year post-secondary educational creden- tial, other than a university educational credential, and a total of at least 12 years of completed full-time or full-time equivalent studies; (c) 15 points for (i) a one-year post-secondary educational credential, other than a university educational credential, and a total of at least 13 years of completed full-time or full- time equivalent studies, or (ii) a one-year university educational credential at the bachelor’s level and a total of at least 13 years of completed full-time or full-time equivalent studies; (d) 20 points for (i) a two-year post-secondary educational credential, other than a university educational credential, and a total of at least 14 years of completed full-time or full- time equivalent studies, or (ii) a two-year university educational credential at the bachelor’s level and a total of at least 14 years of completed full-time or full-time equivalent studies; Dehghan v. Canada (MCI) James Russell J. 243

(e) 22 points for (i) a three-year post-secondary educational credential, other than a university educational credential, and a total of at least 15 years of completed full-time or full- time equivalent studies, or (ii) two or more university educational credentials at the bachelor’s level and a total of at least 15 years of completed full-time or full-time equivalent studies; and (f) 25 points for a university educational credential at the master’s or doctoral level and a total of at least 17 years of completed full-time or full-time equivalent studies. [...] Adaptability (10 points) 83. (1) A maximum of 10 points for adaptability shall be awarded to a skilled worker on the basis of any combination of the following elements: (a) for the educational credentials of the skilled worker’s accom- panying spouse or accompanying common-law partner, 3, 4 or 5 points determined in accordance with subsection (2); (b) for any previous period of study in Canada by the skilled worker or the skilled worker’s spouse or common-law part- ner, 5 points; (c) for any previous period of work in Canada by the skilled worker or the skilled worker’s spouse or common-law part- ner, 5 points; (d) for being related to a person living in Canada who is de- scribed in subsection (5), 5 points; and (e) for being awarded points for arranged employment in Canada under subsection 82(2), 5 points. Educational credentials of spouse or common-law partner (2) For the purposes of paragraph (1)(a), an officer shall evaluate the educational credentials of a skilled worker’s accompanying spouse or accompanying common-law partner as if the spouse or common-law partner were a skilled worker, and shall award points to the skilled worker as follows: (a) for a spouse or common-law partner who would be awarded 25 points, 5 points; 244 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

(b) for a spouse or common-law partner who would be awarded 20 or 22 points, 4 points; and (c) for a spouse or common-law partner who would be awarded 12 or 15 points, 3 points. Substitution de l’appr´eciation de l’agent a` la grille 76 (3) Si le nombre de points obtenu par un travailleur qualifi´e— que celui-ci obtienne ou non le nombre minimum de points vis´e au paragraphe (2) — n’est pas un indicateur suffisant de l’aptitude de ce travailleur qualifi´e a` r´eussir son etablissement´ economique´ au Can- ada, l’agent peut substituer son appr´eciation aux crit`eres pr´evus a` l’alin´ea (1)a). [...] Etudes´ (25 points) 78 (2) Un maximum de 25 points d’appr´eciation sont attribu´es pour les etudes´ du travailleur qualifi´e selon la grille suivante: a) 5 points, s’il a obtenu un diplˆome d’´etudes secondaires; b) 12 points, s’il a obtenu un diplˆome postsecondaire — autre qu’un diplˆome universitaire — n´ecessitant une ann´ee d’´etudes et a accumul´e un total d’au moins douze ann´ees d’´etudes a` temps plein compl`etes ou l’´equivalent temps plein; c) 15 points, si, selon le cas: (i) il a obtenu un diplˆome postsecondaire — autre qu’un diplˆome universitaire — n´ecessitant une ann´ee d’´etudes et a accumul´e un total de treize ann´ees d’´etudes a` temps plein compl`etes ou l’´equivalent temps plein, (ii) il a obtenu un diplˆome universitaire de premier cycle n´ecessitant une ann´ee d’´etudes et a accumul´e un total d’au moins treize ann´ees d’´etudes a` temps plein com- pl`etes ou l’´equivalent temps plein; d) 20 points, si, selon le cas: (i) il a obtenu un diplˆome postsecondaire — autre qu’un diplˆome universitaire — n´ecessitant deux ann´ees d’´etudes et a accumul´e un total de quatorze ann´ees d’´etudes a` temps plein compl`etes ou l’´equivalent temps plein, (ii) il a obtenu un diplˆome universitaire de premier cycle n´ecessitant deux ann´ees d’´etudes et a accumul´e un to- Dehghan v. Canada (MCI) James Russell J. 245

tal d’au moins quatorze ann´ees d’´etudes a` temps plein compl`etes ou l’´equivalent temps plein; e) 22 points, si, selon le cas: (i) il a obtenu un diplˆome postsecondaire — autre qu’un diplˆome universitaire — n´ecessitant trois ann´ees d’´etudes et a accumul´e un total de quinze ann´ees d’´etudes a` temps plein compl`etes ou l’´equivalent temps plein, (ii) il a obtenu au moins deux diplˆomes universitaires de premier cycle et a accumul´e un total d’au moins quinze ann´ees d’´etudes a` temps plein compl`etes ou l’´equivalent temps plein; f) 25 points, s’il a obtenu un diplˆome universitaire de deuxi`eme ou de troisi`eme cycle et a accumul´e un total d’au moins dix- sept ann´ees d’´etudes a` temps plein compl`etes ou l’´equivalent temps plein. [...] Capacit´e d’adaptation (10 points) 83. (1) Un maximum de 10 points d’appr´eciation sont attribu´es au travailleur qualifi´e au titre de la capacit´e d’adaptation pour toute combinaison des el´´ ements ci-apr`es, selon le nombre indiqu´e: a) pour les diplˆomes de l’´epoux ou du conjoint de fait, 3, 4 ou 5 points conform´ement au paragraphe (2); b) pour des etudes´ ant´erieures faites par le travailleur qualifi´e ou son epoux´ ou conjoint de fait au Canada, 5 points; c) pour du travail ant´erieur effectu´e par le travailleur qualifi´e ou son epoux´ ou conjoint de fait au Canada, 5 points; d) pour la pr´esence au Canada de l’une ou l’autre des personnes vis´ees au paragraphe (5), 5 points; e) pour avoir obtenu des points pour un emploi r´eserv´e au Can- ada en vertu du paragraphe 82(2), 5 points. Etudes´ de l’´epoux ou du conjoint de fait (2) Pour l’application de l’alin´ea (1)a), l’agent evalue´ les diplˆomes de l’´epoux ou du conjoint de fait qui accompagne le travailleur qualifi´e comme s’il s’agissait du travailleur qualifi´e et lui attribue des points selon la grille suivante: a) dans le cas o`u l’´epoux ou le conjoint de fait obtiendrait 25 points, 5 points; 246 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

b) dans le cas o`u l’´epoux ou le conjoint de fait obtiendrait 20 ou 22 points, 4 points; c) dans le cas o`u l’´epoux ou le conjoint de fait obtiendrait 12 ou 15 points, 3 points.

Arguments The Applicant Points Awarded for Education 20 The Applicant points out that had the Officer assessed him as having a masters or doctor level degree, he would have had the required number of points for his application. As such, the success of his application turned on this issue. 21 There was evidence before the Officer that in Iran a doctorate degree in medicine is equivalent to a master’s degree. The Applicant’s medical specialization was also listed as a Ph.D. degree in his application forms. Thus, contrary to the Officer’s statement that “there is no indication that there was a Bachelor’s or Master’s degree awarded prior to this degree or that the degree was awarded by a faculty of graduate studies,” this evi- dence was put before the Officer as part of the Applicant’s application. In light of this evidence, the Applicant submits that the Officer’s conclu- sion was unreasonable. 22 Moreover, OP 6a states that “It is important to refer to how the local authority responsible for educational institutions recognizes the creden- tial: i.e. as a first-level or second-level or higher university credit.” There is nothing in the Decision to indicate that the Officer even turned her mind to how a medical degree is recognized in Iran. Case law has indi- cated that an Officer’s neglect to follow the relevant immigration manual can constitute a reviewable error (Canada (Minister of Public Safety & Emergency Preparedness) v. Martinez-Brito, 2012 FC 438 (F.C.)). In this case, the Officer was guided by parts of OP 6a and ignored other parts; the Applicant submits that this was an error. 23 The Applicant has submitted a letter which clearly states that a doc- torate degree in medicine in Iran in recognized as a master’s level de- gree. Had the Officer viewed the Applicant’s educational credentials in the same way as Iranian authorities do — which is the approach man- dated by OP 6a — the Applicant would have earned sufficient points to qualify as a skilled worker. The Applicant submits that it was an error for Dehghan v. Canada (MCI) James Russell J. 247

the Officer to assess his doctorate degree in medicine and specialization at a bachelor’s level. 24 In the alternative, the Applicant submits that the Officer erred by not abiding by principles of procedural fairness in failing to advise the Ap- plicant of the concerns about his educational credentials (Rukmangathan v. Canada (Minister of Citizenship & Immigration), 2004 FC 284 (F.C.)), especially given that the Applicant had made a prima facie case of eligi- bility as a skilled worker. Had the Applicant been advised that the Of- ficer was going to assess his educational credentials in a different manner than how they are assessed in Iran, the Applicant could have made sub- missions to this effect.

The Officer’s Discretion 25 The Applicant points out that he was assessed by the Officer as hav- ing 66 points, which is only 1 point short of the required 67. The Appli- cant had requested substituted evaluation in the event that he fell short of the required points. Under subsection 76(3) of the Regulations, the Of- ficer may substitute the points assessment with his or her own evaluation of an applicant’s likelihood of becoming economically established in Canada if the “number of points awarded is not a sufficient indicator of whether the skilled worker may become economically established in Canada.” 26 In this case, there is no indication that the Officer considered any- thing besides the points. The Officer did not consider the unique aspects of the Applicant’s case, such as his and his spouse’s high level of educa- tion, in refusing to exercise her discretion. This has been found to be a reviewable error in other, similar cases (Choi v. Canada (Minister of Citizenship & Immigration), 2008 FC 577 (F.C.); Hernandez v. Canada (Minister of Citizenship & Immigration), 2004 FC 1398 (F.C.)). 27 In the alternative, the Applicant submits the reasons provided by the Officer are inadequate to explain the refusal to exercise her discretion in favour of the Applicant. In Adu v. Canada (Minister of Citizenship & Immigration), 2005 FC 565 (F.C.), the Court said at paragraph 11: The importance of providing ‘reasoned reasons’ was reiterated by the Supreme Court three years later in R. v. Sheppard, [2002] 1 S.C.R. 869, 2002 SCC 26, where the Court noted that unsuccessful litigants should not be left in any doubt as to why he or she was not success- ful. Although Sheppard was a criminal case, the reasoning in that case has been applied in the administrative law context generally, 248 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

and in the immigration context in particular, in cases such as Harkat (Re), [2005] F.C.J. No. 481, Mahy v. Canada, [2004] F.C.J. No. 1677, Jiang v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 597and Ahmed v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 1415. 28 In this case, the Officer simply states “I am satisfied that the points awarded accurately reflect the applicant’s ability to establish economi- cally in Canada.” The Officer does not provide any reasons beyond this, or any indication as to why the Applicant’s unique characteristics, such as his designation to practice dermatology, were insufficient to enhance the Applicant’s slight lack of points. The Applicant submits that the Of- ficer’s reasons are deficient and, as such, constitute a reviewable error (Jogiat v. Canada (Minister of Citizenship & Immigration), 2009 FC 815 (F.C.)).

The Respondent Points Awarded for Education 29 The Respondent points out that OP 6a states that two or more creden- tials at the bachelor’s level, even where a bachelor’s level degree is a prerequisite, are properly awarded 22 points under the Regulations. The Applicant claims that his medical degree is a graduate degree and his specialization in dermatology is a Ph.D., but this contention is not sup- ported by the record that was before the Officer. 30 The Applicant contends that the Officer failed to consider how a med- ical degree is viewed in Iran, as suggested by OP 6a, but there was no evidence before the Officer to suggest that a medical degree in Iran is considered a second-level degree. Rather, the evidence suggests that the Applicant entered medical school directly after finishing high school. 31 Moreover, the letter included in the Applicant’s record referring to a medical degree as a Master’s degree was not before the Officer. Thus, the Officer cannot be faulted for not considering this evidence, nor can the Applicant rely on it now (Hanif c. Canada (Ministre de la Citoyennet´e & de l’Immigration), 2009 FC 68 (F.C.) [Hanif] at paragraphs 31-32). In the Affidavit of Julia Gurr-Lacasse, the Officer notes that the letter does not evidence that the degree was granted by a school of graduate studies or provides any basis for its conclusions. The Respondent states that this letter is not sufficient to demonstrate that the Officer’s conclusion on equivalency is not accurate. Dehghan v. Canada (MCI) James Russell J. 249

32 Furthermore, the Respondent submits that the recent decision in Mahouri v. Canada (Minister of Citizenship and Immigration), 2013 FC 244 (F.C.) [Mahouri] is indistinguishable from the present case. In that case, an Iranian national was awarded 22 points for a medical degree and specialization. The Court affirmed that it was reasonable for the Officer to grant 22 points as a result of the applicant’s failure to provide suffi- cient evidence that the degree was granted by a school of graduate stud- ies and how the degrees would be viewed in Iran. 33 In this case, although the Applicant referred to the degrees as PhDs in his application form, there was no evidence on the record to demonstrate that the degrees would be viewed as more than first-level degrees in Iran. Given that the Applicant did not provide evidence that the degrees would be viewed as second or higher level degrees, the Officer did not commit an error in not addressing the issue in the reasons for the Decision. 34 The Respondent further submits that the Officer was not required to apprise the Applicant of any concerns with his application. The onus is on the Applicant to put forward all the relevant information and docu- ments to support his application (Oladipo v. Canada (Minister of Citizenship & Immigration), 2008 FC 366 (F.C.) at paragraph 24 [Oladipo]). There is no obligation on an officer to seek clarification or provide an application with an opportunity to address any concerns (Mahouri, above; Bellido v. Canada (Minister of Citizenship & Immigra- tion), 2005 FC 452 (F.C.) at paragraph 35 [Bellido]; Liao v. Canada (Minister of Citizenship & Immigration), [2000] F.C.J. No. 1926 (Fed. T.D.) [Liao]).

The Officer’s Discretion 35 The discretion afforded in section 76(3) is only intended to be exer- cised in “clearly exceptional” cases, and should not displace the underly- ing intent to achieve a consistent process for assessing applications (Requidan v. Canada (Minister of Citizenship & Immigration), 2009 FC 237 (F.C.) [Requidan] at paragraph 29). The decision is highly discre- tionary, and an applicant must provide good reasons why the points awarded do not reflect his or her ability to become economically estab- lished in Canada (Fernandes v. Canada (Minister of Citizenship & Immi- gration), 2008 FC 243 (F.C.) at paragraph 7). 36 In this case, the Applicant requested substituted evaluation, but pro- vided no additional reasons why it would be warranted in his case. The Officer considered the Applicant and his wife’s ages, education, and ex- 250 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

perience, and determined that the points awarded accurately reflected the Applicant’s ability to become economically established in Canada. There was no evidence presented to the contrary, and the Officer accordingly committed no error in this regard. 37 This Court has confirmed that the duty to give reasons on a substi- tuted evaluation is limited (Lee v. Canada (Minister of Citizenship & Im- migration), 2011 FC 617 (F.C.) at paragraph 61). Evidence that the Of- ficer turned his or her mind to such an evaluation is sufficient (Mina v. Canada (Minister of Citizenship & Immigration), 2010 FC 1182 (F.C.) at paragraph 18). 38 In this case, the Applicant’s request for substituted evaluation was limited and the decision was of a highly discretionary nature. Thus, the duty to give reasons was minimal. Moreover, the Officer’s reasons ade- quately explain the result: there was no evidence to indicate that the points awarded were an inaccurate reflection of the Applicant’s ability to become economically established and the Officer was therefore satisfied that the points were accurate.

The Applicant’s Reply 39 The Applicant submits that the Respondent’s arguments have failed to address the central issue in this case: that the Applicant’s medical spe- cialization should have been assessed taking into consideration how his educational credentials are recognized in his country of residence. This is specified in OP 6a. 40 The Applicant says that the Officer need not have seen the letter pro- vided with this application regarding the evaluation of medical doctor- ates in Iran to know that these degrees are evaluated as graduate level degrees. The information and documents provided by the Applicant were sufficient for the Officer to carry out an assessment of the educational credentials in the context of the “local authority.” There is no evidence in the CAIPS notes or in the affidavit provided by the Officer that indicates that how the Applicant’s education is assessed by the local authorities that oversee educational credentials in Iran was a matter that was even considered by the Officer. 41 With regards to procedural fairness, the Applicant says that the Re- spondent has cited a number of cases stating that an officer need not ap- prise an applicant of all his or her concerns; however, those cases specifi- cally refer to instances where the applicant was afforded an opportunity to respond to the officer and did not do so completely. Dehghan v. Canada (MCI) James Russell J. 251

42 In Oladipo, the applicant was provided with an opportunity to re- spond to credibility issues with an interview. In Bellido, the applicant did not provide any documents in support of her language ability, and the Court said that an officer is not required to inform applicants where a basic requirement, such as a language test, is not met. In Liao, the Court held that an officer ought to adopt of line of questioning or make reason- able inquiries that give the applicant an opportunity to respond. 43 In this case, the Applicant was not afforded an opportunity to provide the Officer with information about how his degree is assessed in Iran. There is no evidence from the Officer’s affidavit or the CAIPS notes that the Officer adopted a line of questioning or made reasonable inquiries either of the Applicant or from anyone else about how the Applicant’s educational credentials are evaluated by local authorities. Therefore, the Applicant reiterates that there was a breach of procedural fairness in the failure of the Officer to afford the Applicant an opportunity to disabuse him of his concerns about the assessment of his educational credentials, in spite of the clear assertions of the Applicant in his application. 44 As to substituted evaluation, the Applicant points out that the Of- ficer’s affidavit says that no reasons were provided for the request, and the Respondent’s memorandum states that no “additional reasons” were provided by the Applicant. However, the Applicant’s letter of 23 April 2012 clearly sets out reasons why the Applicant’s education, profession, age and family status, warrant the exercise of positive discretion. 45 In Nayyar v. Canada (Minister of Citizenship & Immigration), 2007 FC 199 (F.C.), the Court held that providing details of the applicant’s experience and credentials are good reasons. Therefore, the Officer erred in not exercising her discretion in this case. 46 The CAIPS notes do not reflect any reasoning for the Officer’s deter- mination that the points awarded to the Applicant “accurately reflect” his ability to become established in Canada. The Officer states that she took note of the Applicant’s request for substituted evaluation, but provides no insight or explanation as to why she found that the points awarded and the information provided “accurately reflect” the Applicant’s ability to become economically established. The Applicant does not know why the Officer arrived at this conclusion, and submits that the lack of suffi- cient reasons constitutes an error of natural justice (Jogiat v. Canada (Minister of Citizenship & Immigration), 2009 FC 815 (F.C.). 252 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

Analysis 47 As regards the educational assessment and procedural fairness issues, I agree with the Respondent that this case is indistinguishable from Mahouri, above, and Sedighi v. Canada (Minister of Citizenship and Im- migration), 2013 FC 445 (F.C.). 48 The onus was upon the Applicant to provide sufficient evidence that the medical qualifications of himself and his wife — however they might be designated — are regarded in Iran as more than first-level degrees. The Applicant submitted insufficient evidence to demonstrate that more points should have been awarded for education. 49 Also, on these facts, as in Mahouri and Sedighi, above, the Officer was under no duty to seek additional information from the Applicant re- garding the nature of the degrees. The question of whether the Applicant had sufficient credentials to warrant more points is squarely within the requirements of the legislation, and the onus is clearly on the Applicant to demonstrate that fact. 50 The Applicant argues that he “was not accorded procedural fairness as he was not provided with an opportunity to provide the officer with information about how his degree is assessed in Iran.” This is clearly not the case. The Applicant had the opportunity to submit whatever evidence he chose with his application to demonstrate how his credentials would be viewed in Iran. He simply chose not to avail himself of this opportu- nity. The onus is upon the Applicant to establish the worth of his creden- tials in his application. See Mahouri and Sedighi, above. 51 The Applicant has raised the argument that the Officer was under an obligation to know the situation in Iran regarding medical degrees and, if he did not, procedural fairness dictates that he should have contacted the Applicant and given him a chance to present evidence on this point. A similar argument was rejected by Justice Yvan Roy in Sedighi at para- graph 15. 52 The Applicant has attempted to overcome the jurisprudence estab- lished by Mahouri and Sedighi by citing the decision of Justice Sean Harrington in Sharifi v. Canada (Minister of Citizenship and Immigra- tion), 2013 FC 453 (F.C.) at paragraphs 14-16. Dehghan v. Canada (MCI) James Russell J. 253

53 In Sharifi, Justice Harrington found that the “visa officer should be taken to know the functions of a third engineer, even if they had not been spelled out”: Consequently, the visa officer is taken to know the Marine Personnel Regulations issued under the Canada Shipping Act, 2001. He would know that a fourth class engineer has at least six months of sea ser- vice as an engineer in charge of machinery on vessels that have a propulsive power of at least 500 kW, has attended various training courses and has successfully been examined with respect to applied mechanics, thermodynamics, electro technology, engineering knowl- edge of motor vessels and steamships and, once again, much, much more. 54 In Sharifi, Justice Harrington cites no authority for the degree or scope of expertise required of a visa officer and he does not refer to or distinguish the jurisprudence of the Court embodied in cases such as Mahouri and Sedighi. Consequently, I have to assume that Sharifi is con- fined to the facts of that case and, in particular, what the visa officer in Sharifi was deemed to know about the Marine Personnel Regulations issued under the Canada Shipping Act, 2001. 55 In my view, then, the present case is more in line with the reasoning applied in Mahouri and Sedighi which follows previous jurisprudence of this Court, and I feel I must follow that jurisprudence in this case. 56 The other issue raised by the Applicant is whether the Officer reason- ably dealt with his clear request for substituted evaluation. 57 As the Respondent points out, the discretion to consider substituted evaluation under section 76(3) of the Act is highly discretionary, and it should only be exercised in clearly exceptional cases so that it does not displace the consistency achieved by using a points system. See Re- quidan, above. 58 In the present case, the Applicant requested substituted evaluation, but he provided no evidence or reasons to demonstrate why the Officer should, notwithstanding the points awarded, apply substituted evaluation. Hence, there was nothing unreasonable or inadequate about the Officer’s conclusion that I am satisfied that the points awarded and the information provided accurately reflect the PA’s ability to become economically estab- lished in Canada. 59 The Applicant must be aware that the problem with his application was insufficiency of evidence because he has, as part of this judicial re- 254 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

view application, attempted to place before me additional evidence to support his case that he did not place before the Officer. The jurispru- dence is clear, however, that apart from certain well-recognized excep- tions — none of which is present on these facts — I can only review the Decision on the basis of the record before the Officer. See Hanif, above. 60 Counsel agree there is no question for certification and the Court concurs.

Judgment THIS COURT’S JUDGMENT is that 1. The application is dismissed. 2. There is no question for certification. Application dismissed. Albajjali v. Canada (MCI) 255

[Indexed as: Albajjali v. Canada (Minister of Citizenship and Immigration)] Mamdouh Issa Mamdouh Albajjali, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-8471-12 2013 FC 660 Yvon Pinard J. Heard: May 7, 2013 Judgment: June 20, 2013 Immigration and citizenship –––– Admission — Immigrants — Skilled workers — Categories (point system) — Adaptability –––– Applicant foreign national was 39-year-old citizen of Jordan — Visa officer refused foreign na- tional’s application for permanent residence under Federal Skilled Worker class — Officer did not award any points on adaptability despite foreign na- tional’s evidence that he had maternal relative in Canada because officer was not satisfied of blood relationship — Foreign national brought application for judi- cial review — Application dismissed — Officer did not breach duty of procedu- ral fairness by not providing foreign national with opportunity to submit addi- tional evidence — As officer’s concerns arose directly from regulations, he was under no duty to inform foreign national that he had provided insufficient infor- mation to establish blood relationship with stated relative — Officer reasonably found that foreign national had not satisfied him that he had blood relationship with his stated relative — Foreign national did not take issue with officer’s as- sessment that there was insufficient evidence to prove blood relation with his uncle. Immigration and citizenship –––– Admission — Appeals and judicial re- view — Judicial review — Duty of fairness –––– Applicant foreign national was 39-year-old citizen of Jordan — Visa officer refused foreign national’s ap- plication for permanent residence under Federal Skilled Worker class — Officer did not award any points on adaptability despite foreign national’s evidence that he had maternal relative in Canada because officer was not satisfied of blood relationship — Foreign national brought application for judicial review — Ap- plication dismissed — Officer did not breach duty of procedural fairness by not providing foreign national with opportunity to submit additional evidence — As officer’s concerns arose directly from regulations, he was under no duty to in- form foreign national that he had provided insufficient information to establish blood relationship with stated relative — Officer reasonably found that foreign 256 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th) national had not satisfied him that he had blood relationship with his stated rela- tive — Foreign national did not take issue with officer’s assessment that there was insufficient evidence to prove blood relation with his uncle. Cases considered by Yvon Pinard J.: Alabadleh v. Canada (Minister of Citizenship & Immigration) (2006), 2006 Car- swellNat 1611, 2006 FC 716, 2006 CF 716, 2006 CarswellNat 6053, [2006] F.C.J. No. 913 (F.C.) — referred to El Sherbiny v. Canada (Minister of Citizenship and Immigration) (2013), 2013 CarswellNat 101, 2013 FC 69, 2013 CF 69, 2013 CarswellNat 387 (F.C.) — considered Hassani v. Canada (Minister of Citizenship & Immigration) (2006), 2006 CF 1283, 2006 CarswellNat 5123, [2007] 3 F.C.R. 501, 2006 CarswellNat 3387, 2006 FC 1283, 302 F.T.R. 39 (Eng.), [2006] F.C.J. No. 1597 (F.C.) — re- ferred 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 Mansouri v. Canada (Minister of Citizenship and Immigration) (2012), 2012 FC 1242, 2012 CarswellNat 4049, 2012 CarswellNat 4482, 2012 CF 1242 (F.C.) — considered Marr v. Canada (Minister of Citizenship & Immigration) (2011), 2011 Car- swellNat 949, 2011 FC 367, 2011 CF 367, 2011 CarswellNat 2043, 98 Imm. L.R. (3d) 87, 387 F.T.R. 138 (Eng.), [2011] F.C.J. No. 520 (F.C.) — considered Uddin v. Canada (Minister of Citizenship and Immigration) (2012), 2012 FC 1005, 2012 CarswellNat 3077, 2012 CF 1005, 2012 CarswellNat 3736 (F.C.) — considered Veryamani v. Canada (Minister of Citizenship & Immigration) (2010), 2010 CF 1268, 2010 FC 1268, 2010 CarswellNat 5349, 2010 CarswellNat 5350, 379 F.T.R. 153 (Eng.), [2010] F.C.J. No. 1668 (F.C.) — referred to Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 72(1) — pursuant to Regulations considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Immigration and Refugee Protection Regulations, SOR/2002-227 Generally — referred to s. 83(1)(d) — considered s. 83(5) — considered Albajjali v. Canada (MCI) Yvon Pinard J. 257

s. 83(5)(a)(vi) — considered

APPLICATION by foreign national for judicial review of decision of visa of- ficer refusing foreign national’s application for permanent residence under Fed- eral Skilled Worker class.

Me Richard Kurland, for Applicant Me Hilla Aharon, for Respondent

Yvon Pinard J.:

1 This is an application for judicial review pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 (the “Act”) of a decision by a visa officer (the “officer”) with the visa office at the Embassy of Canada in Ankara, Turkey. In the decision, dated June 28, 2012, the officer refused the applicant’s application for permanent residence under the Federal Skilled Worker class. 2 The applicant is a 39-year-old citizen of Jordan who applied for a permanent resident visa under the Federal Skilled Worker class. He indi- cated that he had work experience as an electrician. 3 In support of his application and to be awarded five points under the adaptability factor, the applicant indicated that he had a maternal uncle living in Canada. 4 The applicant submitted numerous documents related to the said rela- tive’s status in Canada, including the relative’s Canadian citizenship card and Canadian passport. To establish the relative’s residency in Canada, the applicant also submitted the relative’s Ontario driver’s license, some credit card and utility bills and a letter from the relative’s lawyer regard- ing the purchase of a home in Mount Albert, Ontario. 5 The applicant provided two documents relating to his blood relation with the said relative: the applicant’s own birth certificate and a travel document belonging to the stated relative...... 6 The officer assessed the applicant’s points as follows: Points Maximum assessed Possible Age 10 10 Education 20 25 258 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

Points Maximum assessed Possible Experience 21 21 Arranged employment 0 10 Official language proficiency 10 24 Adaptability 4 10 TOTAL 65 100 7 The officer stated he was unable to award the applicant any points for having a relative in Canada, pursuant to subsection 83(5) of the Immigra- tion and Refugee Protection Regulations, SOR/2002-227 (the “Regula- tions”), as he was not satisfied a blood relationship existed between the applicant and his stated relative. The officer noted that the applicant had not provided birth certificates for his mother and his stated relative in Canada. 8 The officer provided more detail for the reasons for his decision in the Global Case Management System notes. The officer noted that the applicant had provided his birth certificate, which stated his mother’s name and his mother’s father’s name, and that he had also provided a copy of what appeared to be his stated relative’s travel document show- ing the relative’s mother’s name. However, the officer found there was insufficient documentation to allow him to conclude that there was in- deed a blood relationship between the applicant and his stated relative...... 9 Section 83 of the Regulations provides the following: 83. (1) A maximum of 10 points for adaptability shall be awarded to a skilled worker on the basis of any combination of the following elements: [...] (d) for being related to a person living in Canada who is de- scribed in subsection (5), 5 points; and [...] (5) For the purposes of paragraph (1)(d), a skilled worker shall be awarded 5 points if (a) the skilled worker or the skilled worker’s accompanying spouse or accompanying common-law partner is related by blood, marriage, common-law partnership or adoption to a person who is a Canadian citizen or permanent resident living in Canada and who is Albajjali v. Canada (MCI) Yvon Pinard J. 259

[...] (vi) a child of the father or mother of their father or mother, other than their father or mother, 83. (1) Un maximum de 10 points d’appr´eciation sont attribu´es au travailleur qualifi´e au titre de la capacit´e d’adaptation pour toute combinaison des el´´ ements ci-apr`es, selon le nombre indiqu´e: [...] d) pour la pr´esence au Canada de l’une ou l’autre des personnes vis´ees au paragraphe (5), 5 points; [...] (5) Pour l’application de l’alin´ea (1)d), le travailleur qualifi´e obtient 5 points dans les cas suivants: a) l’une des personnes ci-apr`es qui est un citoyen canadien ou un r´esident permanent et qui vit au Canada lui est unie par les liens du sang ou de l’adoption ou par mariage ou union de fait ou, dans le cas o`u il l’accompagne, est ainsi unie a` son epoux´ ou conjoint de fait: [...] (vi) un enfant de l’un des parents de l’un de leurs parents, autre que l’un de leurs parents, ..... 10 As a preliminary issue, the respondent submits, in his written memo- randum of argument, that the evidence attached to the applicant’s immi- gration consultant’s affidavit submitted in support of this application, namely copies of a birth certificate and a marriage document, is fresh evidence that was not before the visa officer. As such, the respondent states the evidence should not be included as part of the record on judi- cial review. 11 The applicant did not reply to this submission. 12 Upon judicial review of an administrative decision, evidence that was not before the decision-maker is only admissible in very limited circum- stances (Alabadleh v. Canada (Minister of Citizenship & Immigration), 2006 FC 716 (F.C.) at para 6). The applicant has not asserted how the fresh evidence adduced in the present case falls into the exceptional cir- cumstances of being admissible. I therefore agree with the respondent that the evidence is inadmissible. 13 The only issue raised on the merits of the application is whether the officer breached the duty of procedural fairness by not providing the ap- 260 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

plicant an opportunity to submit additional evidence. This is an issue that should be assessed on the correctness standard (Khosa v. Canada (Minister of Citizenship & Immigration), [2009] 1 S.C.R. 339 (S.C.C.) at para 43; Veryamani v. Canada (Minister of Citizenship & Immigration), 2010 FC 1268 (F.C.) at para 27)...... 14 It is well established that an officer is under no duty to inform an applicant about any concerns regarding his or her application that arise directly from the requirements of the legislation or regulations and do not pertain to the veracity of the documents (Hassani v. Canada (Minister of Citizenship & Immigration) (2006), [2007] 3 F.C.R. 501 (F.C.) at paras 23 and 24; Uddin v. Canada (Minister of Citizenship and Immigration), 2012 FC 1005 (F.C.) at para 38 [Uddin]). 15 As Justice Luc Martineau states in the recent case of El Sherbiny v. Canada (Minister of Citizenship and Immigration), 2013 FC 69 (F.C.), at paragraph 6: [6] On one hand, an applicant bears the onus of providing adequate and sufficient evidence in support of his application, which means that the immigration officer is under no obligation to request further clarification from an applicant if he or she finds there is not enough evidence initially submitted. On the other hand, where there is a question related to the credibility, accuracy, or genuineness of the information an applicant has submitted, then the officer must give the applicant the opportunity to respond to the officer’s concerns, but the credibility issue must be determinative. 16 In the previous case of Uddin, supra, Justice John O’Keefe also states, at paragraph 38: [38] ... The onus is always on the applicant to satisfy the officer of all parts of his application. The officer is under no obligation to ask for additional information where the applicant’s material is insufficient (see Sharma v Canada (Minister of Citizenship and Immigration), 2009 FC 786, [2009] FCJ No 910 at paragraph 8; and Veryamani v Canada (Minister of Citizenship and Immigration), 2010 FC 1268, [2010] FCJ No 1668 at paragraph 36). 17 In the case at bar, the officer reasonably found that the applicant had not satisfied him that he had a blood relationship with his stated relative pursuant to subsection 83(5). As the respondent underlines, the applicant only provided two documents to establish his blood relationship with his stated relative: his birth certificate showing his parent’s names and a Albajjali v. Canada (MCI) Yvon Pinard J. 261

travel document belonging to his stated relative in Canada which showed his relative’s mother’s name. Moreover, the applicant does not take issue with the officer’s assessment that there was insufficient evidence to prove the applicant’s blood relation with his uncle. 18 In my view, as the officer’s concerns arose directly from the Regula- tions, he was under no duty to inform the applicant that he had provided insufficient information to establish a blood relationship with the stated relative. 19 The applicant relies on Marr v. Canada (Minister of Citizenship & Immigration), 2011 FC 367 (F.C.) and Mansouri v. Canada (Minister of Citizenship and Immigration), 2012 FC 1242 (F.C.), but in both cases, the applicant sought reconsideration of a Federal Skilled Worker applica- tion and submitted new evidence to confirm previously disclosed facts shortly after a negative decision was issued. It was these circumstances that the Court found gave rise to a duty to reconsider a negative decision. In the case at bar, there is no evidence the applicant made a reconsidera- tion request accompanied by evidence to support his blood relationship with his uncle. I therefore fail to see the analogy between the present case and Marr or Mansouri...... 20 For these reasons, the application for judicial review is dismissed. 21 I agree with the parties that this is not a matter for certification.

Judgment The application for judicial review of the decision by a visa officer at the Embassy of Canada in Ankara, Turkey, dated June 28, 2012, is dismissed. Application dismissed. 262 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

[Indexed as: Mendez Valdez v. Canada (Minister of Citizenship and Immigration)] Suzany Charito Mendez Valdez, Christian Ferna Mendez, Kiana Solyami Donis, Applicants and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-3477-13 2013 FC 697, 2013 CF 697 Yvan Roy J. Heard: June 17, 2013 Judgment: June 21, 2013 Immigration and citizenship –––– Exclusion and removal — Removal from Canada — Removal orders — Stay of execution –––– Principal applicant was citizen of Guatemala and two other applicants, her children, were American citi- zens — Principal applicant left Guatemala in 2000 and lived in United States until her arrival in Canada on November 14, 2009 — Principal applicant suf- fered from serious renal disorder which required her to receive hemodialysis treatments three times a week; medical evidence established that without treat- ment she would die within four to seven days — Sparse evidence was presented regarding availability of dialysis clinics in Guatemala, along with letter from Vice-Minister of Health of Guatemala who suggested hemodialysis was often limited to once per week — Applicants’ 2011 claim for refugee protection and 2012 judicial review of that decision were rejected; their pre-removal risk as- sessment application was also unsuccessful — Applicants applied for permanent residence on humanitarian and compassionate grounds — Deportation order was issued on April 19, 2013 and was scheduled to take place on June 25, 2013; application for “administrative” stay of order was dismissed on May 15, 2013 — Applicants brought application for stay of deportation order pending application for leave and judicial review of May 15, 2013 decision — Application granted — Irreparable harm would have been caused to principal applicant if she were returned to Guatemala since there was insufficient evidence regarding treatment available there — Even though principal applicant entered Canada il- legally with view to obtaining health care services, when integrity of immigra- tion system weighed against tragic consequences if principal applicant were re- turned to Guatemala without having access to treatment she required, balance of convenience tipped in her favour — There was likelihood that underlying appli- cation for judicial review of refusal to grant administrative stay could have been successful, thus allowing for more adequate and complete examination when Mendez Valdez v. Canada (MCI) Yvan Roy J. 263

processing application for permanent residence on humanitarian and compas- sionate grounds. Cases considered by Yvan Roy J.: De Roman c. Canada (Ministre de la Citoyennet´e & de l’Immigration) (2013), 2013 CF 478, 2013 CarswellNat 1357, 2013 FC 478, 2013 CarswellNat 2231 (F.C.) — referred to RJR-MacDonald Inc. v. Canada (Attorney General) (1994), [1994] 1 S.C.R. 311, 1994 CarswellQue 120F, 1994 CarswellQue 120, 54 C.P.R. (3d) 114, (sub nom. RJR-MacDonald Inc. c. Canada (Procureur g´en´eral)) 164 N.R. 1, (sub nom. RJR-MacDonald Inc. c. Canada (Procureur g´en´eral)) 60 Q.A.C. 241, 111 D.L.R. (4th) 385, EYB 1994-28671, [1994] A.C.S. No. 17, [1994] S.C.J. No. 17 (S.C.C.) — referred to Toth v. Canada (Minister of Employment & Immigration) (1988), 86 N.R. 302, 6 Imm. L.R. (2d) 123, 1988 CarswellNat 64, 1988 CarswellNat 1571, [1988] F.C.J. No. 587 (Fed. C.A.) — referred to Wang v. Canada (Minister of Citizenship & Immigration) (2001), 13 Imm. L.R. (3d) 289, 2001 CarswellNat 2626, [2001] 3 F.C. 682, 2001 FCT 148, 2001 CarswellNat 406, 204 F.T.R. 5, [2001] F.C.J. No. 295 (Fed. T.D.) — considered Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 48 — considered

APPLICATION for stay of deportation order pending application for leave and judicial review of decision refusing to grant administrative stay.

Juliana Rodriguez, for Applicant Mich`ele Joubert, for Respondent

Yvan Roy J.:

[UNREVISED ENGLISH CERTIFIED TRANSLATION] 1 Each time an issue must be decided it becomes a challenge because rarely are solutions clear-cut. There are cases that involve particular cir- cumstances which make the decision-making even more burdensome. This is one of them. 2 The principal applicant is requesting a stay of the removal order to be enforced on June 25, 2013. She is the mother of the two other applicants, her young children. 264 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

3 The principal applicant is a citizen of Guatemala; the two other appli- cants are American citizens. The principal applicant left her country in 2000; she lived in the United States until she arrived in Canada on No- vember 14, 2009, at the point of entry in Stanstead, Quebec. At the time, she and her family were coming from Florida. 4 The evidence shows that the reason for the family’s arrival in Canada was medical treatment. The applicant clearly suffers from a serious renal disorder requiring her to receive hemodialysis treatments three times a week. The medical evidence established that, without treatment, she would die within four to seven days. Indeed, upon her arrival in Canada in November 2009, she had undergone treatment in the United States three days before. Her state was so precarious that she was immediately taken to the Centre hospitalier de l’Universit´e de Sherbrooke where she underwent emergency dialysis. Medical follow-up was provided by the institution and the numerous letters contained in her medical record from practitioners, including those from the Head of (the Division of) Nephrology, all stress the seriousness of the problems experienced by the principal applicant, describing them as end-stage renal disease. 5 Upon their arrival in Canada, the applicants made a claim for refugee protection, which was rejected on September 15, 2011. Leave for judicial review was denied on February 4, 2012. A pre-removal risk assessment application also proved unsuccessful on August 6, 2012. 6 An application for permanent residence on humanitarian and compas- sionate grounds was filed on February 4, 2013. It is reported that no deci- sion has been rendered as yet. 7 A deportation order was issued on April 19 and the deportation was scheduled to take place on June 25, 2013. In the face of that order, an application for a so-called “administrative” stay was filed on May 2; the application was dismissed on May 6. An application for leave and judi- cial review of that decision was filed on May 15, 2013. No decision has yet been made. That is, in fact, the legal remedy underlying this applica- tion for stay. 8 Before considering the application for a stay of removal, it is neces- sary to comment on the status to date. It seems clear from the record that the principal applicant came to Canada to benefit from, some would say take advantage of, the public health system. In addition, her immigration situation, which was precarious when she came to Canada claiming refu- gee status, has now become that of a person without status. She seeks to obtain permanent residence on humanitarian and compassionate grounds. Mendez Valdez v. Canada (MCI) Yvan Roy J. 265

9 As argued by counsel for the respondent, the applicant has known for months now that she is subject to deportation to her country. She knows better than anyone how precarious the state of her health is. However, it is clear from the record that instead of seeking to ensure that medical resources are available to her upon her arrival in Guatemala, if she were to return, she rather endeavoured to show that those resources would not be there upon her arrival. 10 Nor is the evidence any more satisfactory on the government’s end. The attempt to demonstrate that resources may exist in Guatemala is late and insufficient in my opinion. After all, the evidence shows that access to hemodialysis is a matter of life or death. Certainty as to the availability of resources appears crucial to me. Not only is it a matter of life or death, but death could be imminent if treatment is not available next week. 11 Counsel for the government, and this is entirely to her credit, made an effort to inform the Court. She argues that medical resources exist, but the evidence in that regard is sparse. Said evidence consists in a Web site that points to the existence of four dialysis centres in Guatemala and suc- cinct e-mails from the Regional Medical Office of Citizenship and Immi- gration Canada which state, without elaborating, that “[D]ialysis and nephrology specialist care are available in Guatemala” and provide, on June 17, 2013, the names of the specialists the principal applicant may try to contact in Guatemala. Moreover, counsel states that treatment would be free, referring to a Web site in Spanish of which a part trans- lated by a Department of Justice counsel. 12 Although the Court is indebted to counsel for her efforts, the fact re- mains that, for a matter of life or death, possibly in the short term, there is a form of improvisation caused in part only by the principal applicant’s inertia. To bring this into focus, it is sufficient to note that she en- deavoured to emphasize the seriousness of her health condition and made a general argument about the lack of resources in Guatemala, supported by a letter dated May 20, 2013. Said letter, addressed to the principal applicant’s treating physician in Canada, allegedly came from the “Vice- Minister of Health” of Guatemala; she advises that “[T]he expenses of the process involving hemodialysis are so high, and the machines operat- ing sometimes are not enough to cover all the patients, and the attention should prioritize the health conditions in every case” (English translation of the original letter written in Spanish). The letter concludes, also suc- cinctly, that hemodialysis is “limited in some cases to once per week.” 266 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

13 It is in this context that it is necessary to decide whether a stay should be granted. The well-known test in the subject matter must be applied: 1. Is there a serious issue to be tried before the appropriate decision- maker; 2. Will irreparable harm be caused to the applicant; 3. Does the balance of convenience favour the applicant. See Toth v. Canada (Minister of Employment & Immigration) (1988), 86 N.R. 302 (Fed. C.A.) and RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311 (S.C.C.). In order for the applicant to suc- ceed, she must satisfy the Court that she meets each element of the tripar- tite test. 14 It seems to me that the status of the record is such that the principal applicant meets the irreparable harm element. To date, there is insuffi- cient evidence in the record to support the finding that, if returned to Guatemala, her life would not be in jeopardy. In other words, the evi- dence is at best equivocal, in addition to being sparse, in regard to that issue. 15 The balance of convenience issue certainly makes it possible to weigh the importance for the Ministers of maintaining the integrity of the immi- gration system. However, balanced against that is the principal appli- cant’s health condition. As I indicated earlier, the evidence presented by the government regarding the health care services relevant to our case must be improved before making a finding. Although inertia can be held against the principal applicant, I am not prepared to find that she comes before this Court in bad faith with dirty hands. The principal applicant is destitute and vulnerable. Furthermore, as I explained at the hearing, if a stay is granted in this case, the onus will be on the principal applicant to make the efforts required to obtain the necessary services for her condi- tion if the most recent steps she has taken in the immigration process prove unsuccessful. The granting of a stay would not be a guarantee that other stays would be granted as well. 16 If it is true, as she claims, that the principal applicant is not a danger to Canada, it is nevertheless true that she entered Canada illegally with a view to obtaining health care services. The record shows that she does not work and does not have support from a spouse. Government re- sources are being made available to a person and her family who have entered the country illegally. In my view, what concludes the matter is the still uncertain situation on the access to heath care services in the Mendez Valdez v. Canada (MCI) Yvan Roy J. 267

country where she would be returned. While the integrity of the immigra- tion system should be weighed against the use of Canadian government resources, the fact remains that if the applicant were returned to Guate- mala without having access to treatment she requires, the consequence would be tragic. Thus, the balance of convenience, at this point, is in her favour. Of course that balance would be broken if the evidence of availa- bility of care is improved and reasonable steps are not taken by the applicant. 17 The question then remains whether there is a serious issue to be tried, thus providing grounds for a stay of the removal order. The three ele- ments of the tripartite test must be satisfied in order for the applicants to be granted the stay. 18 The legal remedy underlying the application for stay on which the Court must rule is the application for leave and judicial review of the refusal to grant an administrative stay by the Border Services Officer. The enforcement officer refused the stay on May 6, 2013. The issue to be resolved is therefore whether there is a serious issue to be tried in light of this judicial review. 19 The tripartite test for a stay, as for other areas of law, provides that the issue shall be deemed serious if it is not frivolous, vexatious or futile. The respondent argues that the test in this type of case is rather that of reasonableness. I agree. This Court’s decision in Wang v. Canada (Minister of Citizenship & Immigration), 2001 FCT 148, [2001] 3 F.C. 682 (Fed. T.D.) [.Wang], is an excellent example of the applicants’ bur- den when challenging a removal officer’s refusal to stay removal and seeking to stay their removal pending judicial review. I reproduce para- graph 10 of Wang: [10] The Supreme Court of Canada has held that the test of “serious issue to be tried” is simply that the issue being raised is one which is not frivolous. RJR-MacDonald Inc. v. Canada (Attorney General) [1994] 1 S.C.R. 311 at para 44, [1994] S.C.J. No. 17. On the other hand, to succeed in the underlying judicial review, the applicant will have to show that the decision not to defer was subject to review for error of law, jurisdictional error, factual error made capriciously, or denial of natural justice. Federal Court Act, R.S.C. 1985 c. F-7 sub- section 18.1(4). The result is that if the stay is granted, the relief sought will have been obtained on a finding that the question raised is not frivolous. If the stay is not granted and the matter proceeds to the application for judicial review, the applicant will have to demon- strate a substantive ground upon which the relief sought should be 268 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

awarded. The structure of the process allows the applicant to obtain his/her relief on a lower standard on the interlocutory application, notwithstanding the fact that the relief is the same as that sought in the judicial review application. It is this congruence of the relief sought in the interlocutory and the final application which leads me to conclude that if the same relief is sought, it ought to be obtained on the same basis in both applications. I am therefore of the view that where a motion for a stay is made from a Removal Officer’s refusal to defer removal, the judge hearing the motion ought not simply ap- ply the “serious issue” test, but should go further and closely ex- amine the merits of the underlying application. 20 Without disposing of the underlying judicial review, the “serious is- sue” element is examined not to find out whether the issue is not futile but rather to determine the likelihood that the underlying application could be allowed. As Justice Pelletier, as he then was, explained in Wang, above, a higher bar is necessary when the application for a stay seeks to obtain the same remedy as that sought by the underlying judicial review. 21 In the case at bar, the principal applicant claims that the Removal Officer did not adequately consider that she is not a danger. Furthermore, the best interests of the children and the family’s integration into Cana- dian society should have been in their favour. In my view, those argu- ments may have some weight in the application for permanent residence on humanitarian and compassionate grounds. However, the Removal Of- ficer’s discretion is very limited at that stage. Section 48 of the Immigra- tion and Refugee Protection Act, SC 2001, c 27, was recently amended to better delineate this type of discretion: 48. (1) A removal order is enforceable if it has come into force and is not stayed. (2) If a removal order is enforceable, the foreign national against whom it was made must leave Canada immediately and the order must be enforced as soon as possible. 48. (1) La mesure de renvoi est ex´ecutoire depuis sa prise d’effet d`es lors qu’elle ne fait pas l’objet d’un sursis. (2) L’´etranger vis´e par la mesure de renvoi ex´ecutoire doit im- m´ediatement quitter le territoire du Canada, la mesure devant etreˆ ex- ecut´´ ee d`es que possible. Mendez Valdez v. Canada (MCI) Yvan Roy J. 269

In my view, it is unlikely that such arguments could be successful; this could not be a serious issue. 22 I believe the other two arguments have a better of chance of being accepted upon judicial review, namely, the assessment of the medical ev- idence and the existence of an application for permanent residence on humanitarian and compassionate grounds. 23 The Removal Officer indicates that he was satisfied with the “medical evidence,” which I consider to be very limited. When you look at this evidence, taken from Web sites whose value has not been established, add to it the cursory statements made by Citizenship and Immigration Canada’s Medical Services (see De Roman c. Canada (Ministre de la Citoyennet´e & de l’Immigration) [2013 CarswellNat 1357 (F.C.)], IMM- 9467-12, order of September 14, 2012), and compare it to the needs of the applicant to stay alive, it seems to me that it is far from clear whether if the applicant were to return to Guatemala on June 25, 2013, she would receive the care that is vital to her. The evidence provided by the respon- dent must be improved to bridge the gap between the respondent’s evi- dence of the existence of certain resources, nothing more, and the real needs of the principal applicant. Furthermore, this gap that needs to be bridged is somewhat amplified by the equivocal letter of the Vice-Min- ister of Health of Guatemala. 24 There is a likelihood that the underlying application for judicial re- view of the refusal to grant an administrative stay could be successful, thus allowing for an adequate, and more complete, examination when processing the application for permanent residence on humanitarian and compassionate grounds. The government could provide evidence of availability, to the degree required, of the medical care the principal ap- plicant requires in the short term to survive. Indeed, all relevant consider- ations could be assessed, including the principal applicant’s inertia or, worse, her resistance, if any. 25 In light of the ambiguous, and insufficient, evidence and the type of issue under consideration, the Removal Officer’s decision could likely be reversed. This is a serious issue within the meaning of the three-part test. With respect, the unique facts of the case and the vulnerable situation in which the principal applicant would be placed requires a more in-depth examination, with higher evidence than that provided to date. 270 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

Order Therefore, the Court orders a stay of the removal scheduled for June 25, 2013, pending the Court’s final decision on the application for leave and the judicial review of the refusal to grant an administrative stay, with said negative decision being rendered on May 6, 2013. Application granted. R. v. Huen 271

[Indexed as: R. v. Huen] Regina v. Oi Ling Nicole Huen and Franco Yiu Kwan Orr British Columbia Supreme Court Docket: Vancouver 26094 2013 BCSC 1483 R.B.T. Goepel J. Heard: June 21, 2013 Judgment: June 21, 2013 Immigration and citizenship –––– Refugee protection — General princi- ples –––– In context of defining elements of offence, submissions were made by counsel as to meaning of word “employ” as set out in s. 124(1)(c) of Immigra- tion and Refugee Protection Act (IRPA) — Ruling was made on meaning of word “employ” — Definition of “work” as found in Immigration and Refugee Protection Regulations was not applicable — Terms defined in s. 2 of Regula- tions applied only to Regulations and definition of “work” was found in s. 2 — Word “work” in s. 30(1) of IRPA could not encompass definition of “work”as set out in Regulations — Offence found in s. 124(1)(c) was previously found in s. 96 of Immigration Act, 1976 — Prohibition in s. 124(1)(c) did not broaden scope of activity that was prohibited in Immigration Act, 1976 — Offence pro- hibited employment of certain foreign nationals — While term “employ” was not defined in IRPA, it was found to have meaning similar to that given to “em- ployment” in old Immigration Act, 1976 — Term “employ” continued to reflect concept of activity for which person received of might reasonably be expected to receive wages or other valuable consideration and jury would be charged accordingly. Statutes –––– Interpretation — Particular words — Miscellaneous –––– In context of defining elements of offence, submissions were made by counsel as to meaning of word “employ” as set out in s. 124(1)(c) of Immigration and Ref- ugee Protection Act (IRPA) — Ruling was made on meaning of word “em- ploy” — Definition of “work” as found in Immigration and Refugee Protection Regulations was not applicable — Terms defined in s. 2 of Regulations applied only to Regulations and definition of “work” was found in s. 2 — Word “work” in s. 30(1) of IRPA could not encompass definition of “work”as set out in Regu- lations — Offence found in s. 124(1)(c) was previously found in s. 96 of Immi- gration Act, 1976 — Prohibition in s. 124(1)(c) did not broaden scope of activity that was prohibited in Immigration Act, 1976 — Offence prohibited employ- ment of certain foreign nationals — While term “employ” was not defined in IRPA, it was found to have meaning similar to that given to “employment” in 272 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

old Immigration Act, 1976 — Term “employ” continued to reflect concept of activity for which person received of might reasonably be expected to receive wages or other valuable consideration and jury would be charged accordingly. Statutes considered: Immigration Act, 1976, S.C. 1976-77, c. 52 Generally — referred to s. 2(1) “employment” — referred to s. 96 — considered Immigration and Refugee Protection Act, S.C. 2001, c. 27 Generally — referred to s. 30(1) — considered s. 124(1)(c) — considered Regulations considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Immigration and Refugee Protection Regulations, SOR/2002-227 s. 1 — considered s. 2 “work” — considered Words and phrases considered: employ While the term “employ” is not defined in the IRPA[Immigration and Refugee Protection Act, S.C. 2001, c. 27], I find it has a meaning similar to that given to “employment” in the Old Act [Immigration Act, 1976, S.C. 1976-77, c. 52]. . . .the term “employ” continues to reflect the concept of activity for which a person receives or might reasonably be expected to receive wages or other valu- able consideration. . .

RULING regarding meaning of word “employ” as set out in s. 124(1)(c) of Im- migration and Refugee Protection Act.

P.R. La Prairie, C.F. Hough, for Crown N.J. Preovolos, for Accused

R.B.T. Goepel J. (orally):

1 In the context of defining the elements of the offence for the purpose of a jury charge, counsel have made submissions as to the meaning of the R. v. Huen R.B.T. Goepel J. 273

word “employ” as set out in s. 124(1)(c) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the “IRPA”). The section reads: Every person commits an offence who employs a foreign national in a capacity in which the foreign national is not authorized under this Act to be employed. 2 The Crown submits that the definition should reflect the definition of “work” that is found in s. 2 of the Immigration and Refugee Protection Regulations, SOR/2002-227 (the “Regulations”). That definition reads as follows: “Work” means an activity for which wages are paid or commission is earned or that is in direct competition with the activities of Canadian citizens or permanent residents in the Canadian labour market. 3 That definition suggests that “work” encompasses any activity which is in competition with the activities of Canadian citizens or permanent residences in the Canadian labour market regardless of whether or not a person has paid for that activity. 4 I have concluded that the definition of “work” as found in the Regula- tions is not applicable. In reaching this conclusion, I note that the terms defined in s. 1 of the Regulations apply to both the IRPA and Regula- tions. The terms defined in s. 2 of the Regulations apply only to the Reg- ulations. The definition of “work” is found in s. 2 so it applies only to the regulations. 5 In these circumstances I find that the word “work” as found in s. 30(1) of the Act cannot encompass the definition of “work” as set out in the Regulations. If it was the legislature’s intention that “work” in the IRPA means the same as “work” in the Regulations, “work” would have been defined in s. 1 of the Regulations. The legislature made a conscious decision not to do so. 6 The offence found in s. 124.(1)(c), which is the subject matter of this offence, was previously found in s. 96 of the Immigration Act, 1976, S.C., 1976-77, c. 52 (the “Old Act”). That section stated: Every person who knowingly engages in any employment of any per- son other than a Canadian citizen or permanent resident, who is not authorized under this Act to engage in that employment is guilty of an offence. 7 The Old Act defined “employment” as: any activity for which a person receives or might reasonably be ex- pected to receive valuable consideration. 274 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

8 The prohibition in 124.(1)(c) of the IRPA does not, in my view, broaden the scope of the activity that was prohibited in the Old Act. In both Acts it is an offence to employ someone. It is not an offence to give them unpaid work. 9 The offence prohibits the employment of certain foreign nationals. While the term “employ” is not defined in the IRPA, I find it has a mean- ing similar to that given to “employment” in the Old Act. 10 I find that the term “employ” continues to reflect the concept of activ- ity for which a person receives or might reasonably be expected to re- ceive wages or other valuable consideration, and I will charge the jury accordingly. Order accordingly. Gavriluta v. Canada (MCI) 275

[Indexed as: Gavriluta v. Canada (Minister of Citizenship and Immigration)] Dragos Ovidiu Gavriluta, Applicant and The Minister of Citizenship and Immigration, Respondent Claudia Gavriluta, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: T-946-12, T-947-12 2013 FC 705 E. Heneghan J. Heard: November 29, 2012 Judgment: June 25, 2013 Immigration and citizenship –––– Citizenship — Grant of citizenship — Re- quirements for grant of citizenship — Residence in Canada — Physical presence test — Time in residence –––– Applicants were citizens of Romania and permanent residents of Canada since 2005 — Male applicant told border control in 2008 when re-entering United States of America (USA) that he was permanent resident of USA — In 2009, applicants submitted applications for Canadian citizenship, declaring that they did not have permanent resident status in any other country — Male applicant later confirmed he held USA Green Card but did not provide information from American authorities that he was not resi- dent of USA — Citizenship judge dismissed applicants’ applications for citizen- ship on basis of residency requirements — Applicants appealed — Appeals dis- missed — Citizenship judge was allowed to choose physical presence test out of three possible tests for residency, and properly applied such test — Citizenship judge’s concerns about applicants’ credibility were well-founded and reasonably found that there were serious grounds to disbelieve male applicant — Citizen- ship judge made reasonable finding that applicants had misrepresented their sta- tus in USA and that such misrepresentation was material and relevant to all their claims — Citizenship judge acted reasonably in rejecting applicants’ application for citizenship. Cases considered by E. Heneghan J.: Balta v. Canada (Minister of Citizenship & Immigration) (2011), 2011 FC 1509, 2011 CarswellNat 5448, 403 F.T.R. 134 (F.C.) — referred to Dedaj v. Canada (Minister of Citizenship & Immigration) (2010), 2010 Car- swellNat 3105, 2010 CF 777, 90 Imm. L.R. (3d) 138, 2010 FC 777, 2010 276 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

CarswellNat 2485, 372 F.T.R. 61 (Eng.), [2010] F.C.J. No. 945 (F.C.) — referred to El-Khader v. Canada (Minister of Citizenship & Immigration) (2011), 2011 Car- swellNat 780, 2011 CF 328, 2011 CarswellNat 1704, 386 F.T.R. 142 (Eng.), 2011 FC 328, 386 F.T.R. 142, [2011] F.C.J. No. 426, [2011] A.C.F. No. 426 (F.C.) — referred to El Ocla v. Canada (Minister of Citizenship & Immigration) (2011), 99 Imm. L.R. (3d) 253, 2011 FC 533, 2011 CarswellNat 1547, 2011 CF 533, 2011 CarswellNat 2568, 389 F.T.R. 241, [2011] F.C.J. No. 667, [2011] A.C.F. No. 667 (F.C.) — referred to Koo, Re (1992), 19 Imm. L.R. (2d) 1, [1993] 1 F.C. 286, 59 F.T.R. 27, 1992 CarswellNat 83, 1992 CarswellNat 621, [1992] F.C.J. No. 1107 (Fed. T.D.) — followed Lam v. Canada (Minister of Citizenship & Immigration) (1999), 1999 Car- swellNat 489, 164 F.T.R. 177, 1999 CarswellNat 4749, [1999] F.C.J. No. 410 (Fed. T.D.) — referred to New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1, 69 Admin. L.R. (4th) 1, 69 Imm. L.R. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) [2008] 1 S.C.R. 190, 844 A.P.R. 1, (sub nom. Dunsmuir v. New Brunswick) 2008 C.L.L.C. 220-020, D.T.E. 2008T-223, 329 N.B.R. (2d) 1, (sub nom. Dunsmuir v. New Brunswick) 170 L.A.C. (4th) 1, (sub nom. Dunsmuir v. New Brunswick) 291 D.L.R. (4th) 577, 2008 CarswellNB 124, 2008 CarswellNB 125, 2008 SCC 9, 64 C.C.E.L. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) 95 L.C.R. 65, [2008] S.C.J. No. 9, [2008] A.C.S. No. 9 (S.C.C.) — followed Papadogiorgakis, Re (1978), 1978 CarswellNat 23, [1978] 2 F.C. 208, 88 D.L.R. (3d) 243, 1978 CarswellNat 23F, [1978] F.C.J. No. 31 (Fed. T.D.) — followed Pourghasemi, Re (1993), 1993 CarswellNat 77, 19 Imm. L.R. (2d) 259, 62 F.T.R. 122, [1993] F.C.J. No. 232 (Fed. T.D.) — followed 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(5) — pursuant to Federal Courts Act, R.S.C. 1985, c. F-7 s. 21 — considered Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 2(1) “permanent resident” — referred to Gavriluta v. Canada (MCI) E. Heneghan J. 277

Rules considered: Federal Courts Rules, SOR/98-106 Pt. 5 — referred to

APPEALS by applicants from decision of citizenship judge denying their appli- cations for citizenship.

Hilete Stein, for Applicant Nicole Rahaman, for Respondent

E. Heneghan J.: I. Introduction 1 Mr. Dragos Ovidiu Gavriluta and his wife Mrs. Claudia Gavriluta (collectively “the Applicants”) appeal from a decision of Citizenship Judge Aris Babikian (the “Citizenship Judge”) denying their applications for citizenship. The appeal is brought pursuant to subsection 14(5) of the Citizenship Act, R.S.C., 1985, c. C-29 (the “Act”). The applications for citizenship were denied on the basis that the Citizenship Judge was not satisfied that the Applicants had presented credible evidence to show that they had satisfied the residency requirements of the Act. 2 Pursuant to section 21 of the Federal Courts Act, R.S.C., 1985, c. F- 7, appeals under the Act proceed as applications governed by Part 5 of the Federal Courts Rules, SOR/98-106. The Applicants commenced in- dividual applications but in view of the overlap of the facts and argu- ments in these two appeals, I will review the background facts of both applications together.

II. Background 3 The Applicants are citizens of Romania. 4 The male Applicant claims that he began employment with Clariant Corporation in Minneapolis, Minnesota in August 2001. He says that he first entered Canada in November 2004, upon a work permit, for a busi- ness trip. He also claims that he was promoted to General Manager at Clariant (Canada) Inc. in January 2005. On August 14, 2005, he became a “permanent resident” of Canada within the meaning of that term in the Immigration and Refugee Protection Act, S.C. 2001, c. 27. His wife en- tered Canada in February 2005 and became a permanent resident on Au- gust 17, 2005. 278 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

5 On December 29, 2008, a “non-computer based entry” was made in the Field Operation Support System (“FOSS”) as follows: Received call from Officer Smith, Customs & Border Control at Windsor Ambassador Bridge stating that she is currently interview- ing the subject who is re-entering the USA after being in Canada for work for the last 2 weeks. Subject is employed by Clariant USA. Subject stated to Officer Smith that he has only lived in the USA (Minnesota) since 2004 and has never lived in Canada. Subject is a permanent resident in the USA A#097-963-928. 6 On March 8, 2009, the Applicants submitted applications for Cana- dian citizenship. They were required to meet the statutory residence re- quirements as set out in subsection 5(1) of the Act as follows: 5. (1) The Minister shall grant citizenship to any person who (a) makes application for citizenship; (b) is eighteen years of age or over; (c) is a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act, and has, within the four years immediately preceding the date of his or her application, accumulated at least three years of residence in Canada calculated in the following manner: (i) for every day during which the person was resident in Canada before his lawful admission to Canada for per- manent residence the person shall be deemed to have accumulated one-half of a day of residence, and (ii) for every day during which the person was resident in Canada after his lawful admission to Canada for per- manent residence the person shall be deemed to have accumulated one day of residence; (d) has an adequate knowledge of one of the official languages of Canada; (e) has an adequate knowledge of Canada and of the responsibili- ties and privileges of citizenship; and (f) is not under a removal order and is not the subject of a decla- ration by the Governor in Council made pursuant to section 20. 5. (1) Le ministre attribue la citoyennet´e a` toute personne qui, a` la fois: a) en fait la demande; b) est ag´ˆ ee d’au moins dix-huit ans; Gavriluta v. Canada (MCI) E. Heneghan J. 279

c) est un r´esident permanent au sens du paragraphe 2(1) de la Loi sur l’immigration et la protection des r´efugi´es et a, dans les quatre ans qui ont pr´ec´ed´e la date de sa demande, r´esid´e au Canada pendant au moins trois ans en tout, la dur´ee de sa r´esidence etant´ calcul´ee de la mani`ere suivante: (i) un demi-jour pour chaque jour de r´esidence au Canada avant son admission a` titre de r´esident permanent, (ii) un jour pour chaque jour de r´esidence au Canada apr`es son admission a` titre de r´esident permanent; d) a une connaissance suffisante de l’une des langues officielles du Canada; e) a une connaissance suffisante du Canada et des respon- sabilit´es et avantages conf´er´es par la citoyennet´e; f) n’est pas sous le coup d’une mesure de renvoi et n’est pas vis´ee par une d´eclaration du gouverneur en conseil faite en application de l’article 20. 7 In his application for citizenship the male Applicant said that he had been present in Canada for 1,214 days during the relevant period, that is the four years immediately preceding the date of his application for citi- zenship. He said he had been absent for 166.5 days. 8 The female Applicant declared physical presence in Canada of 1,298 days and an absence of 73 days. 9 Each Applicant, in their citizenship applications, also declared that they did not have permanent resident status in any other country. 10 On August 10, 2010, the Applicants completed a citizenship test. They were interviewed at that time by a citizenship officer. They were issued residence questionnaires which they returned approximately two weeks later, together with copies of other documents. 11 The Applicants’ file was reviewed by another citizenship officer in or around November 2011. This Officer, in examining copies of the Appli- cants’ passports, noticed that many stamps in the passports were im- printed “ARC”, sometimes with a number. This Officer formed the opin- ion that “ARC” meant “Alien Registration Card”. The Officer was also aware of the December 2008 FOSS notes referred to above. 12 As a result, on November 5, 2011, the Officer telephoned the male Applicant to discuss his residence status in the United States. According to the Global Case Management System notes, the Officer initially ad- vised the male Applicant only about the 2008 FOSS notes. According to the Officer, the male Applicant replied that he was not a resident of the 280 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

United States and that there had been a misunderstanding, but that it had been clarified. 13 When asked by the Officer if he knew the meaning of the “ARC” stamps in his passport, the male Applicant replied in the negative. When the Officer said that she believed “ARC” to stand for “Alien Registration Card”, the male Applicant admitted that he held a U.S. Green Card. The Officer then informed the male Applicant that he needed to obtain a letter from the American authorities stating that he is not a U.S. resident. The Officer provided her contact information. However, the male Applicant did not subsequently contact the Officer or provide the requested information. 14 The Officer decided that a hearing would be necessary in order to verify the period of the Applicants’ residency in Canada. On December 28, 2011, the Applicants appeared before the Citizenship Judge for their residence hearing. 15 Following the hearing, the Applicants were afforded further time to provide additional information. They submitted further documents throughout February 2012. The Citizenship Judge delivered his decision on April 10, 2012. 16 In his decision, the Citizenship Judge reviewed the conflicting evi- dence as to the male Applicant’s resident status in the United States. Page 2 of the decision provides, in part, as follows: On page 2 of the Canadian Citizenship Application (CIT 0002), and in response to Question 7(d) of that form which asks “Do you have permanent resident status in any other country,” the Applicant ticked the “No” box. Yet, in Port of Entry (FOSS) notes, NCB #Z011511300, created on Dec. 29, 2008, a Canadian officer received the following information from a US counterpart and noted: Received call from Officer Smith, Customs & Border Control at Windsor Ambassador Bridge stating that she is currently interviewing the subject [Mr. Gavriluta] who is reentering the USA after being in Canada for work for the last 2 weeks. Subject is employed by Clariant USA. Sub- ject stated to Officer Smith that he has only lived in the USA (Minnesota) since 2004 and has never lived in Can- ada. Subject is a permanent resident in the USA A#097- 963-928. The Applicant’s Romanian passport has many USA entry stamps with a hand-written imprint of “ARC.” The imprint “ARC” means Gavriluta v. Canada (MCI) E. Heneghan J. 281

Alien Registration Card.” Also, under some of these stamps the serial number A #097-963-928 is written. The serial number is identical to the number referred to in the FOSS notes mentioned above. [Empha- sis in original] 17 The Citizenship Judge then commented upon the examination of the male Applicant at the hearing of December 28, 2011, as follows: At the Dec. 28, 2011 hearing, I raised the Green Card issue with the Applicant and his response to Question 7(d) on Page 2 of the Cana- dian Citizenship Application (CIT 0002). He stated: The way I interpreted is that when it says ‘resident’ it means that where I reside. I have also Romanian passport but I do not reside there. It was misunderstanding. When I read him Question 7(d) on page 2 of the Citizenship Applica- tion and stated that the question is very clear about the issue of hav- ing permanent residency status in any other country, he replied: That’s how I understood it; it is misunderstanding. I asked him about the US Custom and Border Patrol Officer’s com- ments in the FOSS note. To this query he said, “It was misunder- standing.” I asked him if he still has his Green Card and if the US authorities are aware that he has permanent residency status in Can- ada. He replied “Yes” to both questions. I asked him to provide me a letter from the US authorities stating that they are aware that he is a permanent resident holder in the US and Canada simultaneously and then requested an outline of the policy on retaining the Green Card. He stated “I will go and ask them.” After interviewing Mr. and Ms. Gavriluta separately, I called them back together to my office to give them the new Residency Checklist to submit the missing supporting documents which they failed to sub- mit with the Aug. 10, 2010 [residency questionnaire] request. I also asked them to provide to me their US Green Card applications and a letter from US authorities stating that they are aware that the Appli- cants are permanent residents of Canada and stating the US policy vis-`a-vis Green Card Holders who reside in Canada. To this request, Ms. Gavriluta turned to her husband and said to him: “You will lose your Green Card.” Mr. Gavriluta then said to me, “We will consult our lawyer.” This response indicates that Ms. Gavriluta had an awareness that holding permanent residence status in two countries might raise red flags for immigration and citizenship officials in both countries. At the hearing the Applicant stated that he “files income tax in the US but he doesn’t pay.” This raises the question as to why would 282 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

someone who is living, working, and filing income tax in Canada has to file US income tax unless they have residence status in the US. The above observation leads me to conclude that Mr. Gavriluta has US residence status and this puts into question his physical presence in Canada, and the number of days he claims that he resided in Can- ada during the relevant period. 18 The Citizenship Judge also noted that two re-entries to Canada could be seen in the male Applicant’s Integrated Customs Enforcement System (“ICES”) Travel History and three in the female Applicant’s travel his- tory, none of which were declared by the Applicants in either their citi- zenship applications or their residency questionnaires. In the case of the male Applicant the undeclared re-entry dates were March 21, 2006, and November 25, 2007. In the case of his wife, the undeclared re-entry dates were March 4, June 17, and November 25, 2007. 19 By a letter dated February 10, 2012, the Applicants’ lawyer acknowl- edged these dates after receiving a copy of the ICES Travel History and advised that “Mr. and Ms. Gavriluta advised that these are 1-day return trips to the US as they are not stamped on their passport.” However, without documentary evidence to confirm that statement, the Citizenship Judge found that the departure dates, and the true length of the trips, could not be established. 20 After noting other minor inconsistencies in the travel dates given by the Applicants, the Citizenship Judge then reviewed the Applicants’ On- tario Health Insurance Plan (“OHIP”) usage history by examining their OHIP claims. He noted a break of approximately two years, that is from February 2006 to January 2008, in the male Applicant’s usage history. There was a thirteen month gap, that is from September 2006 to October 2007, in the female Applicant’s usage history. The Citizenship Judge ex- pressed the view that these breaks were inconsistent with the Applicants’ otherwise “extensive utilization of the medical system in Ontario.” 21 The Citizenship Judge then considered that the Applicants had not obtained the information and documents that they had been requested to obtain from the American authorities. The Citizenship Judge did not ac- cept their lawyer’s statement that the requested information and materials “were not available”. 22 The Citizenship Judge then proceeded to review other documents that had been provided by the Applicants, including Canada Revenue Agency Assessments, mortgage statements, municipal tax bills, and joint bank account statements. The Citizenship Judge characterized these docu- Gavriluta v. Canada (MCI) E. Heneghan J. 283

ments as “passive indicia” of residency. Overall, the Citizenship Judge was not satisfied that the Applicants had submitted credible evidence or that they had discharged their burden of proving, on a balance of probabilities, that they had met the residency requirements of the Act as set out in subsection 5(1) of the Act.

III. Issues 23 The within proceeding raises the following issues: i) What is the applicable standard of review; ii) Did the Citizenship Judge err in selecting the wrong test for resi- dency under paragraph 5(1)(c) of the Act; iii) Did the Citizenship Judge err in his assessment of credibility; and iv) Did the Citizenship Judge err in calculating the time for the pur- poses of establishing residency?

IV. Discussion and Disposition 24 The first issue to be addressed is the applicable standard of review. According to the decision in New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190 (S.C.C.), there are only two standards of review in the domain of administrative law, that is correctness for issues of law and procedural fairness, and reasonableness for questions of fact and mixed fact and law. 25 The Applicants argue that the Citizenship Judge’s selection of the ap- plicable test for residency is correctness, referring to several decisions including El Ocla v. Canada (Minister of Citizenship & Immigration) (2011), 389 F.T.R. 241 (F.C.) at para. 14, and Dedaj v. Canada (Minister of Citizenship & Immigration), 372 F.T.R. 61 (Eng.) (F.C.). 26 The Respondent submits that it remains within the discretion of the Citizenship Judge to decide which test to apply and that as long as one of these tests is correctly applied there will be no error on that basis alone; see the decisions in El-Khader v. Canada (Minister of Citizenship & Im- migration), 386 F.T.R. 142 (Eng.) (F.C.) at para. 10 and Balta v. Canada (Minister of Citizenship & Immigration) (2011), 403 F.T.R. 134 (F.C.) at para. 10. 27 In my opinion, since the jurisprudence allows for a choice among the tests for the purpose of establishing residency, the choice of test is a question of discretion for the Citizenship Judge; see the decision in Lam v. Canada (Minister of Citizenship & Immigration) (1999), 164 F.T.R. 284 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

177 (Fed. T.D.). Discretionary decisions are subject to deference; see Dunsmuir, supra, at para. 53. It follows that both the choice of the resi- dency test and its application are reviewable on the standard of reasonableness. 28 The Citizenship Judge chose to apply the residency test set out in Pourghasemi, Re (1993), 62 F.T.R. 122 (Fed. T.D.). This test relies upon a strict count of days, as opposed to the “centralized mode of living” test as per Papadogiorgakis, Re, [1978] 2 F.C. 208 (Fed. T.D.) at page 214, or the test of “substantial connection” as set out in Koo, Re (1992), 59 F.T.R. 27 (Fed. T.D.) at para. 10. 29 The Citizenship Judge was allowed to choose one of the three tests. The next question is whether he reasonably applied the test chosen, that is, did the Citizenship Judge reasonably conclude that the Applicants had failed to establish their physical presence in Canada for 1,095 days, in order to satisfy the requirements of the Act? 30 In addressing this issue, I must necessarily look at the manner in which the Citizenship Judge assessed the credibility of the Applicants, as well as his assessment of the reliability of the various documents that were submitted. 31 In my opinion, the Citizenship Judge’s concerns about the Appli- cants’ credibility were well-founded. The most obvious matter is the FOSS note entry, reproduced above, which shows that the male Appli- cant was not forthright about the history of his residence in both Canada and the United States. The male Applicant did not give a clear answer as to why he told the Canadian immigration officer that he had never lived in Canada and had been living in the United States since 2004. Accord- ing to the reasons of the Citizenship Judge, the male Applicant dismissed this statement as a “misunderstanding”. The Citizenship Judge reasona- bly found that there were serious grounds to disbelieve the male Applicant. 32 There is a further related serious concern about the Applicants’ truth- fulness and credibility, arising from the Applicants’ answer to question 7(d) on the citizenship application, that is the question “Do you have permanent resident status in any other country?” The Applicants gave a negative answer. Both Applicants were examined on this issue, separ- ately, according to the reasons of the Citizenship Judge. He concluded that the Applicants had misrepresented the facts in giving negative an- swers to this question. He did not accept their explanation that the nega- tive answers were a result of a misunderstanding. Gavriluta v. Canada (MCI) E. Heneghan J. 285

33 The Citizenship Judge made a reasonable finding that the Applicants had misrepresented their status in the United States. 34 The Applicants’ arguments about the “materiality” of their misrepre- sentation cannot succeed. They submit that the “damage” arising from the missing re-entry data can be limited to a certain range of dates, based on the “undisputed” re-entry dates entered in the record. However, even if those particular re-entry dates can be limited by the previously re- corded re-entry dates in the ICES travel history, there is no means of verifying the accuracy of the departure dates. 35 In these circumstances, the entire travel history of the Applicants is in doubt. No independent confirmation of their claim has been provided. I am satisfied that the Citizenship Judge considered the materiality of the Applicants’ misrepresentation and reasonably found that misrepresenta- tion to be relevant to all their claims. The Citizenship Judge acted rea- sonably in rejecting the Applicants’ claim to Canadian citizenship on the basis of the evidence before him. 36 Although the Citizenship Judge erred in setting out the relevant time period for determining residency, a point addressed by Counsel in post- hearing submissions, this error does not affect the ultimate decision and disposition of these appeals. 37 The Citizenship Judge found that the relevant period for assessing the residency required for the male Applicant was August 14, 2005, to March 8, 2009. This was wrong; the relevant period was March 8, 2005, to March 8, 2009. In my opinion, the error is immaterial since it is clear from the decision that the Citizenship Judge was applying the physical presence test and given the problems with the evidence submitted by the Applicants, he could not determine if the Applicants had met the thresh- old of 1,095 days of residency. 38 In conclusion, the Applicants have failed to show that the Citizenship Judge committed any reviewable error or that the decision fails to meet the standard of reasonableness. The decision falls within a range of pos- sible, acceptable outcomes which are defensible in respect of the facts and the law. 39 These reasons will be filed in cause number T-946-12 and placed on the file in cause number T-947-12. 40 The appeals will be dismissed. Since the Respondent did not seek costs, none will be awarded. Appeals dismissed. 286 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

[Indexed as: Banik v. Canada (Minister of Citizenship and Immigration)] Biswajit Banik, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-8552-12 2013 FC 777 James Russell J. Heard: June 4, 2013 Judgment: July 11, 2013 Immigration and citizenship –––– Exclusion and removal — Inadmissible classes — Health –––– Applicant was citizen of Bangladesh who applied for permanent residence in Canada, with his wife and son listed as dependants — Applicant’s son was nine years old and had autism spectrum disorder — Medi- cal officer made initial inadmissibility finding for excessive demand on social services — Immigration officer sent applicant procedural fairness letter (fairness letter) — Fairness letter asked applicant to provide individualized plan to ensure that no excessive demand would be imposed on social services — Applicant provided individualized plan, and his application for permanent residence was rejected for excessive demand on social services — Applicant brought applica- tion for judicial review — Application dismissed — It was not unreasonable for medical officer to indicate that his initial opinion had not changed, or for immi- gration officer to rely upon this unchanged assessment — Applicant had failed to provide relevant information about availability of private special education for son and costs of that education — Omission of this information made it im- possible for medical officer to assess applicant’s ability to pay, and overall feasi- bility of applicant’s plan — Onus was on applicant to establish reasonable work- ing plan that officers, in their respective roles, could assess — There was no duty on immigration officer to advise applicant on how to improve his applica- tion after he was provided with fairness letter — Fairness letter did not mislead applicant in any way as to what was required — Applicant was represented by immigration consultant, and any mistakes which he or his counsel made could not now be disregarded. Cases considered by James Russell J.: 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. Banik v. Canada (MCI) 287

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 Chaudhry v. Canada (Minister of Citizenship & Immigration) (2011), 2011 FC 22, 2011 CarswellNat 60, 95 Imm. L.R. (3d) 93, 382 F.T.R. 145 (Eng.), 2011 CarswellNat 6408, 2011 CF 22, [2011] F.C.J. No. 29 (F.C.) — referred to Hilewitz v. Canada (Minister of Citizenship & Immigration) (2005), 50 Imm. L.R. (3d) 40, 2005 SCC 57, 2005 CarswellNat 3234, 2005 CarswellNat 3235, 340 N.R. 102, 259 D.L.R. (4th) 244, 33 Admin. L.R. (4th) 1, [2005] 2 S.C.R. 706, [2005] S.C.J. No. 58 (S.C.C.) — considered Ikede v. Canada (Minister of Citizenship and Immigration) (2012), 2012 FC 1354, 2012 CarswellNat 4600, 2012 CarswellNat 5152, 2012 CF 1354 (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 N.L.N.U. v. Newfoundland & Labrador (Treasury Board) (2011), 2011 Car- swellNfld 414, 2011 CarswellNfld 415, 2011 SCC 62, 38 Admin. L.R. (5th) 255, (sub nom. Nfld. and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board)) 2011 C.L.L.C. 220-008, (sub nom. Newfoundland & Labrador Nurses’ Union v. Newfoundland & Labrador (Treasury Board)) 424 N.R. 220, 340 D.L.R. (4th) 17, D.T.E. 2012T-7, (sub nom. Newfoundland & Labrador Nurses’ Union v. Newfoundland & Labrador (Treasury Board)) [2011] 3 S.C.R. 708, 213 L.A.C. (4th) 95, 97 C.C.E.L. (3d) 199, (sub nom. Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board)) 986 A.P.R. 340, (sub nom. Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board)) 317 Nfld. & P.E.I.R. 340, [2011] S.C.J. No. 62 (S.C.C.) — considered New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1, 69 Admin. L.R. (4th) 1, 69 Imm. L.R. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) [2008] 1 S.C.R. 190, 844 A.P.R. 1, (sub nom. Dunsmuir v. New Brunswick) 2008 C.L.L.C. 220-020, D.T.E. 2008T-223, 329 N.B.R. (2d) 1, (sub nom. Dunsmuir v. New Brunswick) 170 L.A.C. (4th) 1, (sub nom. Dunsmuir v. New Brunswick) 291 D.L.R. (4th) 577, 2008 CarswellNB 124, 2008 CarswellNB 125, 2008 SCC 9, 64 C.C.E.L. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) 95 L.C.R. 65, [2008] S.C.J. No. 9, [2008] A.C.S. No. 9 (S.C.C.) — followed 288 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

Phillip v. Canada (Minister of Citizenship & Immigration) (2012), 2012 Car- swellNat 462, 2012 FC 242, 2012 CF 242, 2012 CarswellNat 1474 (F.C.) — considered Rounta v. Canada (Minister of Citizenship & Immigration) (2007), 2007 Car- swellNat 1842, 2007 CF 384, 2007 CarswellNat 834, 2007 FC 384 (F.C.) — referred to Sapru v. Canada (Minister of Citizenship & Immigration) (2011), 2011 Car- swellNat 1930, 2011 CAF 35, 413 N.R. 70, 330 D.L.R. (4th) 670, 2011 Car- swellNat 229, 2011 FCA 35, 93 Imm. L.R. (3d) 167, [2012] 4 F.C.R. 3, [2011] F.C.J. No. 148 (F.C.A.) — considered Sharma v. Canada (Minister of Citizenship & Immigration) (2010), 2010 Car- swellNat 879, 2010 FC 398, 2010 CarswellNat 2239, 2010 CF 398 (F.C.) — referred to Sketchley v. Canada (Attorney General) (2005), 2006 C.L.L.C. 230-002, 2005 CAF 404, 2005 CarswellNat 5119, [2006] 3 F.C.R. 392, 2005 FCA 404, 2005 CarswellNat 4194, 344 N.R. 257, 44 Admin. L.R. (4th) 4, 56 C.H.R.R. D/490, 263 D.L.R. (4th) 113, [2005] F.C.J. No. 2056 (F.C.A.) — considered S¨okmen v. Canada (Minister of Citizenship & Immigration) (2011), 2011 FC 47, 2011 CarswellNat 119, 96 Imm. L.R. (3d) 251, 2011 CF 47, 2011 Car- swellNat 492 (F.C.) — considered Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 11(1) — considered ss. 29-34 — referred to s. 38(1) — considered s. 42 — considered s. 72(1) — pursuant to Rules considered: Federal Courts Immigration and Refugee Protection Rules, SOR/93-22 R. 9 — referred to Regulations considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Immigration and Refugee Protection Regulations, SOR/2002-227 s. 1(1) “excessive demand” — considered s. 1(1) “health services” — considered s. 20 — considered

APPLICATION by citizen of Bangladesh for judicial review of decision refus- ing his application for permanent residence.

Erin Roth, for Applicant Banik v. Canada (MCI) James Russell J. 289

Michael Butterfield, 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 Visa Officer (Immigration Officer) of the Consulate Gen- eral of Canada in Sydney, Australia, dated 25 June 2012 (Decision), which refused the Applicant’s application for permanent residence in Canada because his son’s health condition might reasonably be expected to cause excessive demand on social services, thus rendering the Appli- cant inadmissible to Canada.

Background 2 The Applicant is a 43-year-old citizen of Bangladesh. The Appli- cant’s wife and son are also citizens of Bangladesh. The Applicant and his wife were trained in the medical field in Bangladesh. They have been studying in Australia since 2007, and reside there on student visas. In February, 2007, the Applicant submitted an application for permanent residence in Canada under the Federal Skilled Worker Category, with his wife and son listed as dependants. The Applicant’s son, Arkojeet, is 9 years old and has Autism Spectrum Disorder (ASD). 3 After applying for permanent residence, the Applicant received a let- ter from the Immigration Officer dated 12 April 2011, expressing con- cerns that Arkojeet’s health condition might reasonably be expected to cause excessive demand on social services in Canada (Applicant’s Re- cord, page 30). The letter said that Arkojeet would likely be identified as a High Needs Student, and the cost of his special education would range from $12,000 to $27,000 per year. Respite care for the parents would likely be from $2,000 to $4,000 per year. Arkojeet would also require a psychological assessment which would cost between $2,500 and $3,000. The Immigration Officer stated that, before a final decision was made, the Applicant could submit additional information, including information on the Applicant’s use of social services in Canada for the next five years, and an individualized plan to ensure that no excessive demand is imposed on Canadian social services. The letter stated that the Applicant must have a reasonable and workable plan, along with the financial means and intent to implement it. 290 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

4 In response to this letter, the Applicant submitted a package on 16 July 2011 detailing his financial resources and setting out a plan for car- ing for Arkojeet over the family’s first five years in Canada (Applicant’s Record, page 35). The Applicant included a chart listing the anticipated costs related to concerns identified by the Immigration Officer, measured against the family’s available assets. 5 In the Applicant’s plan, he noted that he and his wife are both medi- cally trained, and his wife has received special training in dealing with children who experience developmental delays. The Applicant has $262,423 in available funds, which includes a gift from his parents of $154,969, in the form of fixed deposits and savings certificates at differ- ent financial institutions in Bangladesh. The estimated cost of Arkojeet’s needs ranged from $72,500 to $158,000, but even taking the maximum projected cost, the Applicant says he will be financially capable of meet- ing it. The family would also have the financial support of the Appli- cant’s parents, should it be necessary. The Applicant’s sister-in-law re- sides in Ottawa, and would provide any required financial and other support to the Applicant, as the family intends to reside in Ottawa. 6 The Applicant also requested that humanitarian and compassionate (H&C) factors be considered. He pointed out that he has been waiting for a decision since January, 2007, and that the special education Arkojeet requires is not available in Bangladesh. The Applicant submitted that Arkojeet has been doing well at his Australian school, and provided cop- ies of his progress reports. Arkojeet has been attending a special school in Australia and has never used any publicly funded services there. The Applicant and his wife are both highly educated, and would be able to make valuable contributions to Canadian society. Further, the Applicant has significant family support. 7 By letter dated 25 June 2012, the Immigration Officer concluded that Arkojeet is inadmissible to Canada because he might reasonably be ex- pected to cause excessive demand on social services, and refused the application.

Decision under Review 8 The Decision under review in this application consists of the Exclu- sion Letter dated 25 June 2012 and the Officer’s Global Case Manage- ment Systems notes (Notes). 9 In the Notes dated 25 June 2012, the Immigration Officer noted that the Applicant’s submissions on his plan for Arkojeet’s care had been sent Banik v. Canada (MCI) James Russell J. 291

to a medical officer (Medical Officer) at Overseas Health Management Services in Singapore for review. The Medical Officer found that the Ap- plicant’s submissions did not modify the initial inadmissibility finding for excessive demand on social services. 10 The Applicant provided copies of communications between him and a school in Ottawa, but the representative of the school said that without an assessment she was unsure what would be the most appropriate place- ment for Arkojeet. The Immigration Officer noted that the Applicant did not provide any information on the cost or availability of private school- ing if Arkojeet is not accepted into one of the special education public schools. 11 The Applicant said he may be able to acquire private health insurance at a cost of $120 a month, but no documentation was provided from health providers, so the Immigration Officer was unable to determine what this insurance would cover. No details were provided about the costs of other therapies. 12 The Applicant stated that during year 2 of his 5-year plan he intends to work part-time to care for his son while his wife enrols in a university program in either nursing or physiotherapy. The Applicant indicated that he would be financially dependant on his family during his initial reloca- tion period to Canada. 13 The Applicant said that the family intends to live in Ottawa, where his wife’s sister resides. The Applicant provided a Letter of Assurance from the sister, who said that she would provide the family with accom- modation and financial support. However, the Applicant made enquiries of the University of Regina, McGill University, and McMaster Univer- sity, all of which are outside the Ottawa region. The Applicant did not account for the additional cost if one parent is required to be away from Ottawa. 14 The Immigration Officer found that the Applicant’s submissions did not change the determination that Arkojeet might reasonably be expected to cause excessive demand on social services. Thus, the Applicant re- mained inadmissible.

Issues 15 The Applicant raises the following issues in this application: a. Should the reasons provided in the medical inadmissibility pro- ceedings include the reasons of the Medical Officer? 292 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

b. Did the Medical Officer and the Immigration Officer err in failing to provide adequate reasons? c. Did the Medical Officer and the Immigration Officer err in failing to conduct an individualized assessment?

Standard of Review 16 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 re- viewing court undertake a consideration of the four factors comprising the standard of review analysis. 17 The first issue was discussed by the Federal Court of Appeal in Sapru v. Canada (Minister of Citizenship & Immigration), 2011 FCA 35 (F.C.A.) [Sapru]. The Court of Appeal characterized the obligations of the Medical Officer as a question of law and as involving matters of pro- cedural fairness (Sapru at paragraphs 24-27). As such, this issue is re- viewable on a correctness standard. 18 Both parties agree that the standard of review applicable to a decision on medical inadmissibility is reasonableness (Sapru). 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 rea- sons is not a stand-alone basis for quashing a decision. Rather, “the rea- sons must be read together with the outcome and serve the purpose of showing whether the result falls within a range of possible outcomes.” Thus, any issue that may arise as to the adequacy of reasons will be con- sidered in a context of the reasonableness of the Decision. 19 When reviewing a decision on the standard of reasonableness, the analysis will be concerned with “the existence of justification, trans- parency and intelligibility within the decisionmaking process [and also with] whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.” See Dun- smuir, above, at paragraph 47, and Khosa 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 unrea- sonable in the sense that it falls outside the “range of possible, acceptable outcomes which are defensible in respect of the facts and law.” Banik v. Canada (MCI) James Russell J. 293

20 The Supreme Court of Canada emphasized in Hilewitz v. Canada (Minister of Citizenship & Immigration), 2005 SCC 57 (S.C.C.) [Hilewitz] that medical inadmissibility must be considered in an individ- ualized manner. Justice Luc Martineau recently found in S¨okmen v. Canada (Minister of Citizenship & Immigration), 2011 FC 47 (F.C.) at paragraph 3 that whether or not an officer’s assessment was individual- ized is an issue that is determined on a standard of correctness. 21 In C.U.P.E. v. Ontario (Minister of Labour), 2003 SCC 29 (S.C.C.), the Supreme Court of Canada held at paragraph 100 that it “is for the courts, not the Minister, to provide the legal answer to procedural fair- ness questions.” Further, the Federal 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 circum- stances, or has breached this duty.” The standard of review applicable to the issue in this application is correctness.

Statutory Provisons 22 The following provisions of the Act are applicable in this proceeding: Application before entering 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 regula- tions. The visa or document may be issued if, following an examina- tion, the officer is satisfied that the foreign national is not inadmissi- ble and meets the requirements of this Act. [...] Health grounds 38. (1) A foreign national is inadmissible on health grounds if their health condition (a) is likely to be a danger to public health; (b) is likely to be a danger to public safety; or (c) might reasonably be expected to cause excessive demand on health or social services. [...] Inadmissible family member 42. A foreign national, other than a protected person, is inadmissible on grounds of an inadmissible family member if 294 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

(a) their accompanying family member or, in prescribed circum- stances, their nonaccompanying family member is inadmissi- ble; or (b) they are an accompanying family member of an inadmissible person. Visa et documents 11. (1) L’´etranger doit, pr´ealablement a` son entr´ee au Canada, de- mander a` l’agent les visa et autres documents requis par r`eglement. L’agent peut les d´elivrer sur preuve, a` la suite d’un contrˆole, que l’´etranger n’est pas interdit de territoire et se conforme a` la pr´esente loi. [...] Motifs sanitaires 38. (1) Emporte, sauf pour le r´esident permanent, interdiction de ter- ritoire pour motifs sanitaires l’´etat de sant´e de l’´etranger constituant vraisemblablement un danger pour la sant´e ou la s´ecurit´e publiques ou risquant d’entraˆıner un fardeau excessif pour les services sociaux ou de sant´e. [...] Inadmissibilit´e familiale 42. Emportent, sauf pour le r´esident permanent ou une personne pro- t´eg´ee, interdiction de territoire pour inadmissibilit´e familiale les faits suivants: a) l’interdiction de territoire frappant tout membre de sa famille qui l’accompagne ou qui, dans les cas r´eglementaires, ne l’accompagne pas; b) accompagner, pour un membre de sa famille, un interdit de territoire. 23 The following provisions of the Immigration and Refugee Protection Regulations, SOR/2002-27 are applicable in this proceeding: Definitions 1. (1) The definitions in this subsection apply in the Act and in these Regulations. [...] “excessive demand” means (a) a demand on health services or social services for which the anticipated costs would likely exceed average Canadian per capita health services and social services costs over a period Banik v. Canada (MCI) James Russell J. 295

of five consecutive years immediately following the most re- cent medical examination required under paragraph 16(2)(b) of the Act, unless there is evidence that significant costs are likely to be incurred beyond that period, in which case the period is no more than 10 consecutive years; or (b) a demand on health services or social services that would add to existing waiting lists and would increase the rate of mortal- ity and morbidity in Canada as a result of an inability to pro- vide timely services to Canadian citizens or permanent re- sidents. “health services” “health services” means any health services for which the majority of the funds are contributed by governments, including the services of family physicians, medical specialists, nurses, chiropractors and physiother- apists, laboratory services and the supply of pharmaceutical or hospital care. D´efinitions 1. (1) Les d´efinitions qui suivent s’appliquent a` la Loi et au pr´esent r`eglement. [...] « fardeau excessif » Se dit: a) de toute charge pour les services sociaux ou les services de sant´e dont le coˆut pr´evisible d´epasse la moyenne, par habitant au Canada, des d´epenses pour les services de sant´e et pour les services sociaux sur une p´eriode de cinq ann´ees cons´ecutives suivant la plus r´ecente visite m´edicale exig´ee en application du paragraphe 16(2) de la Loi ou, s’il y a lieu de croire que des d´epenses importantes devront probablement etreˆ faites apr`es cette p´eriode, sur une p´eriode d’au plus dix ann´ees cons´ecutives; b) de toute charge pour les services sociaux ou les services de sant´e qui viendrait allonger les listes d’attente actuelles et qui augmenterait le taux de mortalit´e et de morbidit´e au Canada vu l’impossibilit´e d’offrir en temps voulu ces services aux citoyens canadiens ou aux r´esidents permanents. « services de sant´e » Les services de sant´e dont la majeure partie sont fi- nanc´es par l’´etat, notamment les services des g´en´eralistes, des sp´ecialistes, des infirmiers, des chiropraticiens et des physi- oth´erapeutes, les services de laboratoire, la fourniture de m´e- dicaments et la prestation de soins hospitaliers. 296 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

Arguments The Applicant Preliminary Matter 24 As a preliminary matter, the Applicant raises the question of whether the reasons provided under Rule 9 of the Federal Courts Immigration and Refugee Protection Rules, SOR/93-22 (Rules) ought to have in- cluded the Medical Officer’s reasoning. The Applicant submits that the reasons of the Medical Officer are essential in assessing whether a deci- sion of medical inadmissibility is reasonable. It may also save judicial resources, because if full reasons are provided, litigation may not be necessary. 25 In Sapru, above, the Federal Court of Appeal highlighted the impor- tance of a medical officer’s reasoning at paragraph 41: Having reviewed the respective roles of the immigration and medical officers, it follows from the obligation placed on an immigration of- ficer to review the reasonableness of a medical officer’s opinion that a medical officer must provide the immigration officer with suffi- cient information to enable the immigration officer to be satisfied that the medical officer’s opinion is reasonable. 26 The Applicant submits that he ought to have access to the Medical Officer’s opinion, and that this issue goes beyond the mere adequacy of reasons. The Medical Officer’s notes have now been submitted by the Respondent as part of the Affidavit of Stephanie Dodds, however, the Applicant submits that Rule 9 requires disclosure of both Officers’ rea- sons and that waiting to provide the Medical Officer’s reasons until after leave is granted is unacceptable.

The Reasonableness of the Decision The Adequacy of Reasons 27 The Applicant submits that the reasons provided must allow the re- viewing court to ascertain whether a decision is reasonable. The Federal Court of Appeal affirmed that this applies to a medical officer at paragraphs 42-43 of Sapru: ...a medical officer may provide adequate reasons in a report to the immigration officer. However, adequate reasons could also be pro- vided orally if the immigration officer records the oral advice in the CAIPS notes, or in a combination of written and oral communica- tions where the oral advice is recorded in the CAIPS notes. Thus, a Banik v. Canada (MCI) James Russell J. 297

medical officer might transmit his or her notes reflecting the medical officer’s review and assessment of all of the relevant information, or an immigration officer might record in the CAIPS notes the relevant observations and conclusions of a medical officer made during the course of the collaborative process between the officers contemplated by Operational Bulletin 063. In every case, an immigration officer may seek clarification from a medical officer and record the response of the medical officer in the CAIPS notes. The reasons of a medical officer may be conveyed to an immigration officer by a combination of these or other methods. What is important is that at the time the immigration officer makes his or her decision on admissibility, the immigration officer must have sufficient information from the medical officer to allow the im- migration officer to be satisfied that the medical officer’s opinion is reasonable. 28 The Applicant says that there is no indication in the Decision that the Medical Officer provided an explanation to the Immigration Officer as to why, after receiving the response to the procedural fairness letter, his or her opinion was not changed. The Immigration Officer simply summa- rizes the Applicant’s submissions and then concludes that “Having care- fully considered all the documentation provided it did not change this assessment of PA’s family member’s health condition, which has now become final...” 29 The Applicant says that it is unclear, based on the above, which Of- ficer actually arrived at the conclusion that Arkojeet’s health condition is likely to constitute an excessive demand on social services. The decision in Sapru clearly states that it is an immigration officer’s duty to review the reasonability of the medical officer’s opinion, and not the reasonabil- ity of the applicant’s response. There is no indication on the record as to what the Medical Officer’s reasoning was, or how his analysis contrib- uted to the ultimate conclusion. 30 The Applicant points out that there is no way to evaluate whether or not the Medical Officer did, in fact, conduct the required re-assessment. Had both Officers undertaken their respective duties, there ought to have been some explanation as to why the Medical Officer’s opinion had not been altered after receiving the Applicant’s materials. In the absence of this, the Applicant submits that the assessment and reasons provided are inadequate. 31 The Supreme Court of Canada stated in Hilewitz, above, at paragraph 55 that medical officers must consider both medical and non-medical 298 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

factors. As such, the Medical Officer had an obligation to assess the rea- sonability of the Applicant’s care plan, and his ability and intent to mini- mise the demand on social services. There is no indication that the Medi- cal Officer considered any non-medical factors, such as the Applicant’s financial position. The reasons simply state that the evidence did not change the Medical Officer’s opinion of Arkojeet’s “health condition.” 32 The Applicant submits that had the Medical Officer adequately con- sidered all medical and non-medical factors, this assessment would have appeared in the reasons for the Decision. Specifically, the Applicant’s submissions spoke to the lack of available educational options for Arkojeet in Bangladesh, and the significant progress that he has made at his specialized school in Australia. There is no way to know if this was considered at all in the Medical Officer’s opinion. The Applicant submits that the reasons provided are lacking in transparency and are wholly unreasonable.

The Role of the Officers 33 The Applicant says that section 20 of the Regulations and sections 29-34 of the Act clearly delineate the roles of a medical officer and an immigration officer — the medical officer is to determine whether the applicant or his dependants has a health condition likely to cause exces- sive demand, and the immigration officer is to assess whether the medi- cal officer’s determination is reasonable (Sapru at paragraph 36). 34 In this case, the Medical Officer left the Immigration Officer to assess the Applicant’s financial ability and intent. In Hilewitz at paragraph 68, the Supreme Court of Canada was critical of the medical officer in that case doing the same thing. As such, the Applicant submits that the Medi- cal Officer failed to discharge his legislated responsibility, and that be- cause of this the Immigration Officer rendered an unreasonable decision.

Individualized Assessment 35 In Hilewitz, the Supreme Court stated that officers must conduct “in- dividualized assessments;” it is not enough to simply set forth what ser- vices a particular individual may have access to. They must assess the cost of the services that the person is likely to require: 56 This, it seems to me, requires individualized assessments. It is im- possible, for example, to determine the “nature”, “severity” or proba- ble “duration” of a health impairment without doing so in relation to a given individual. If the medical officer considers the need for po- Banik v. Canada (MCI) James Russell J. 299

tential services based only on the classification of the impairment rather than on its particular manifestation, the assessment becomes generic rather than individual. It is an approach which attaches a cost assessment to the disability rather than to the individual. This in turn results in an automatic exclusion for all individuals with a particular disability, even those whose admission would not cause, or would not reasonably be expected to cause, excessive demands on public funds. 36 It is clearly stated at paragraph 58 of Hilewitz that “The threshold is reasonable probability, not remote possibility.” 37 As per paragraph 55 of Hilewitz, the Applicant states that the Medical Officer was required to (1) assess cost estimates, (2) determine whether the cost estimates were reasonable, and (3) assess the “willingness and ability of the applicant or his or her family to pay for the services.” The Applicant submits that all the Medical Officer said was that the Appli- cant had “provided some estimates of the cost of Arkojeet’s education,” and that this did not meet the standard set out in Hilewitz. Not only that, but the cost estimates mentioned by the Medical Officer were the maxi- mum costs from the procedural fairness letter. 38 The Applicant submits that the Immigration Officer committed the same errors discussed in Hilewitz. The Immigration Officer’s notes pro- vide that the Applicant and his wife “would be eligible for respite ser- vices” and that the services would “typically be in the range of $2,000 to $4,000 per year.” In response to this, the Applicant provided a plan and financial documentation to demonstrate his ability to offset any excessive demand, should this be required. There is no discussion as to why the Officers believed the Applicant and his wife would make use of such services, considering they have not done so in the past. The Applicant submits that this demonstrates that a generic methodology, as discussed in Hilewitz at paragraph 56, was applied. 39 Further, the maximum cost of special education for Arkojeet was de- termined to be $27,000 per year. In response, the Applicant confirmed his commitment to pay this amount, and demonstrated his financial ca- pacity to do so. The Applicant is a citizen of Bangladesh, with limited knowledge of the Canadian education system, but clearly communicated his intention to offset the costs of public schooling. The e-mail response to the Applicant from the Ottawa-Carleton District School Board said: “You mentioned that your child will not qualify for government funding and you would have to pay for education. Is this included in the informa- tion you received from Citizenship and Immigration Canada? Could you 300 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

please send us a copy of the informat ion you received to this effect.” The Applicant submits that this indicates clearly that he had no intention for Arkojeet’s education costs to be paid for by the government, and that he was simply unaware that he could not pay into the public school system. 40 Further, the family has been privately funding Arkojeet’s education in Australia for the past several years. In light of this, it was reasonable for the Applicant to believe that his statement that he was willing and able to pay for Arkojeet’s education in the highest amount proposed by the Of- ficer, together with proof of his financial resources, would be sufficient to alleviate this concern. 41 The reasons do not indicate that the Immigration Officer had con- cerns about the Applicant’s willingness or ability to assume the costs as set out. The Applicant’s intention to contribute $27,000 annually towards Arkojeet’s education was clearly set out, regardless of whether it would be spent in the public or the private school system. 42 The Applicant submits that his particular circumstances and inten- tions were not acknowledged and assessed. The Immigration Officer even noted that the Applicant “has made great efforts to research both opportunities for himself and the care of his son.” The Applicant submits that the Immigration Officer’s failure to assess his particular circum- stances was an error.

The Respondent The Reasonableness of the Decision Adequacy of Reasons 43 The Respondent submits that the Sapru decision does not support the Applicant’s argument that in every case an immigration officer must in- clude the detailed reasons of a medical officer (particularly when the medical officer’s position has not changed). Sapru held that the prospec- tive immigrant must be provided with a “fairness letter” that sets out all relevant concerns and provides a true opportunity for the person to mean- ingfully respond to all the government’s concerns. 44 A medical officer must provide the immigration officer with suffi- cient information to permit the immigration officer to be satisfied that the medical officer’s opinion is reasonable. The Respondent submits that this was complied with in this case. As the Federal Court of Appeal said in Banik v. Canada (MCI) James Russell J. 301

Sapru, an applicant is not the focus as far as adequacy of reasons is con- cerned: 54 To conclude on this issue, when considering the inadequacy of the reasons of a medical officer the primary concern is not whether at the end of the day the appellants received adequate reasons. The concern is whether the inadequacy of the reasons prevented the immigration officer from assessing the reasonableness of the medical officer’s opinion. 45 The record indicates the Medical Officer reviewed all the Applicant’s materials. The Immigration Officer would have been aware that the Med- ical Officer’s decision was based on having reviewed all the evidence presented by the Applicant. 46 The basis of the Immigration Officer’s decision echoed the rationale described by the Medical Officer. Both decisions turned on the insuffi- ciency of the Applicant’s evidence and deficiencies in the proposed plan. The Applicant even acknowledged that his plan was deficient when it came to special education costs for his son. He stated in his covering letter that he believed the exact amount could only be determined after the family became landed immigrants and a psychological assessment was done. The Respondent submits that it is unreasonable for the Appli- cant to take issue with the medical assessment and then acknowledge that he did not provide the Officers with the information they requested in order to have a reasonable basis on which to avoid a medical inadmissi- bility finding. 47 Jurisprudence of the Federal Court has confirmed that when a pro- spective immigrant claims the identified health condition will not create “excessive demand” because they have a plan to mitigate the likely de- mand, the plan must be “choate,” in the sense of complete, developed and certain (Chaudhry v. Canada (Minister of Citizenship & Immigra- tion), 2011 FC 22 (F.C.) [Chauhdry] at paragraph 49; Sharma v. Canada (Minister of Citizenship & Immigration), 2010 FC 398 (F.C.) at paragraphs 16, 18; Rounta v. Canada (Minister of Citizenship & Immi- gration), 2007 FC 384 (F.C.) at paragraph 15). 48 Specifically, in Sapru the Federal Court of Appeal said that “when an applicant submits a plan for managing the condition, the medical officer must consider and advise the immigration officer about things such as the feasibility and availability of the plan.” The Immigration Officer in the present case recognized the Applicant’s sincerity in putting together a plan which he believed would be sufficient, but the Applicant’s failure to 302 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

adequately research the availability and cost of private school special ed- ucation simply left both Officers without sufficient evidence to reasona- bly approve the plan. The Respondent submits that the Applicant’s plan was inchoate and therefore it was reasonably rejected. 49 The Applicant simply accepted the cost estimates made by the Medi- cal Officer and asserted he had the financial resources to pay for any services required out of his own resources. What he failed to do was investigate what is and is not available for his son in the Ottawa area. The onus is on the prospective immigrant to research his or her options and submit a detailed and realistic plan (Chaudhry at paragraph 50). An immigration officer must make a decision based on the information put forward by the applicant. 50 Instead of acknowledging that he misunderstood the Canadian educa- tional system, the Applicant points to an email from the Ottawa-Carlton School Board in an effort to demonstrate that he anticipated paying for his son’s school privately. This is the sort of “indirect” evidence the Medical Officer made reference to, and it was not the sort of information requested of the Applicant. 51 The Applicant has acknowledged that he made a mistake by not pro- viding information about private schools in Canada that provide special education. A “reasonable and workable plan” must be based on informa- tion that is correct, yet despite this significant error the Applicant be- lieves that his plan is still somehow “reasonable and workable,” and that his “financial means and intent to implement this plan” should have been enough to satisfy the Officer. 52 The Applicant tries to rely on the leading jurisprudence concerning medical inadmiss ibility, but this case law is of no assistance to him be- cause his plan of care was bereft of any information that directly re- sponded to the Officers’ concerns. The inadequacy of the plan of care hampered the Officers’ ability to assess non-medical factors such as the Applicant’s financial ability and intent to implement the plan. 53 The Respondent submits there is no evidence that Hilewitz and Sapru were not complied with just because the Immigration Officer did not in- clude the Medical Officer’s reaction to the Applicant’s fairness materials in the reasons or the Notes. Furthermore, the Applicant asserts that his response was not sent to the Medical Officer, when the Notes clearly indicate that the response was sent. In this case, the two Officers did in fact “operate in tandem to assess admissibility on health grounds.” Banik v. Canada (MCI) James Russell J. 303

54 Furthermore, the Respondent submits that the Medical Officer did un- derstand the scope of his responsibilities. The Medical Officer made the preliminary inadmissibility finding, which then caused the Immigration Officer to send out the procedural fairness letter. The Medical Officer then considered the Applicant’s submissions, made a final determination, and sent it to the Immigration Officer for review. 55 The Applicant submits that the Medical Officer did not properly as- sess the Applicant’s “ability or intent to offset excessive demand,” but this was because the Applicant did not provide the Medical Officer with the relevant information he needed. Thus, any assessment would have been meaningless because it would have been based on incomplete infor- mation (Sapru, paragraph 36). 56 In the alternative, if the Court does find that there was a breach of procedural fairness, the Respondent submits that this type of error does not necessarily require the Decision to be redetermined. There is a line of jurisprudence from this Court standing for the proposition that a breach of natural justice is important only if it is material to the claim. Recently, the Court held in Phillip v. Canada (Minister of Citizenship & Immigra- tion), 2012 FC 242 (F.C.) at paragraph 29: 29 In reaching this conclusion, Justice Mactavish relied on previous jurisprudence that only breaches of natural justice that affect the re- sult will warrant a decision being set aside (see for example Mughal v Canada (Minister of Citizenship and Immigration), 2006 FC 1557, [2006] FCJ no 1952 at paras 39-41; Fontenelle v Canada (Minister of Citizenship and Immigration), 2006 FC 1432, [2006] FCJ no 1796 at para 15; Yassine v Canada (Minister of Employment and Immigra- tion), (1994), 27 Imm LR (2d) 135, [1994] FCJ no 949 at para 11 (FCA); Mobile Oil Canada Ltd et al v Canada-Newfoundland Off- shore Petroleum Board, [1994] 1 SCR 202; [1994] SCJ no 14 at para 53). 57 The Respondent submits that the Applicant was not prejudiced by the breach of procedural fairness that he alleges occurred in the assessment of his application. Even if both Officers carried out their roles perfectly, it would not have remedied the fundamental flaw in the Applicant’s sub- mission — that he did not provide proper information in regards to Arkojeet’s education in Canada. The final determination would have been the same; the application would have been rejected. 304 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

Individualized Assessment 58 Contrary to the Applicant’s arguments, the Respondent asserts that both Officers did perform individualized assessments for what services, and their associated costs, would likely be required. Both Officers noted the contents of a report by a specialist, which outlined exactly what Arkojeet’s challenges are, as well as the Applicant’s evidence of the needs of his son. Neither Officer considered services that were a remote possibility, but pointed out services and needs for the Applicant’s son that were based on a reasonable probability, in compliance with Hilewitz.

The Applicant’s Reply 59 The Applicant submits that the Medical Officer’s notes, attached in the Affidavit of Stephanie Dodds, do not provide an answer to the Appli- cant’s concerns. The notes are merely a recitation of the Applicant’s sub- missions, with the Medical Officer only commenting on the Applicant’s error of approaching the public school board. It was the Immigration Of- ficer’s duty to assess the reasonability of the Medical Officer’s conclu- sions. In order to do this the Immigration Officer should have been pro- vided with the Medical Officer’s reasoning, not merely a statement that the original opinion has not changed since the Applicant did not identify the correct school. 60 The Applicant continues to submit that the Medical Officer was re- quired to provide “adequate reasons” to the Immigration Officer (Sapru at paragraphs 42, 54), and the Immigration Officer was required to assess the reasonability of those reasons. In respect to the Medical Officer’s notes, the Applicant is particularly concerned with the conclusion that the “assessment of the applicant’s ‘ability and intent’ I leave to the visa officer to assess.” The Medical Officer must assess both medical and non-medical factors; in not considering all the submissions provided, the Medical Officer in this case failed to perform that duty.

Procedural Fairness 61 The Applicant clearly believed he would be required to pay the amount set forth in the procedural fairness letter and provided evidence that he could do so. The Applicant continues to maintain that in failing to review all the evidence provided, the Officer did not conduct an individ- ualized assessment. 62 The Respondent is critical of the Applicant for not having researched private schooling in Canada for Arkojeet, and speaks of the “onus” rest- Banik v. Canada (MCI) James Russell J. 305

ing with the Applicant. Although the Applicant contacted the public school board, he clearly believed that his son would “not qualify for gov- ernment funding.” The Applicant submits that this was a legitimate mis- apprehension. The Officers knew of this mistake for over a year before refusing the application, and the Applicant states that fairness dictates that they should have given his plan more consideration and disabused him of the misapprehension.

Analysis 63 In my view, and taking into account the evolving submissions of the parties, the gravamen of the Applicant’s complaint is that the Immigra- tion Officer in this case rendered an unreasonable decision by relying upon the opinion of the Medical Officer who failed to discharge his duty of assessing excessive demand. The Applicant also now says that it was obvious that he had misapprehended the need to provide information and a viable plan regarding private education and support for Arkojeet, so that it was procedurally unfair not to alert him that such information was required, and not to give him an opportunity to make further submissions on point. 64 In the present case, the Applicant says that the Medical Officer pro- vided an opinion that did not address the Applicant’s individual circum- stances and specifically left considerations of financial ability and intent to the Immigration Officer. In other words, he says, the Medical Officer failed to discharge his legal duty to assess excessive demand on the basis of the individualized circumstances of this case, so that, in relying upon the Medical Officer’s opinion, the Immigration Officer rendered an un- reasonable Decision. 65 I agree that the Medical Officer was obliged to conduct an individual- ized assessment that would take into account both medical and non-med- ical factors, “such as the availability, scarcity or cost of publicly funded services, along with the willingness and ability of the applicant or his or her family to pay for the services.” See Hilewitz, above, at paragraphs 43 and 44. 66 As the record before me shows, the Medical Officer made a prelimi- nary inadmissibility finding and the Applicant was given the opportunity to submit a detailed individualized plan “along with the financial means and intent to implement this plan.” As the Applicant points out in his 306 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

affidavit submitted with this application, he did not understand that he should have addressed private school costs: Had we known that we could only pay for private school, we would have gladly researched private school options and covered these costs. In my view, this is a clear acknowledgment that the plan submitted by the Applicant was deficient in this highly material respect. 67 The plan submitted by the Applicant did not provide information about the private education that Arkojeet might require in Canada. This information was needed to directly address the Medical Officer’s con- cerns and, without it, the Medical Officer could not have assessed the non-medical factors such as the Applicant’s financial ability to imple- ment the plan, which the jurisprudence says the Medical Officer was obliged to assess. When the Medical Officer reviewed the documentation submitted by the Applicant, he noted that the Applicant had not ad- dressed his concerns. 68 The Applicant argues that the Medical Officer specifically left assess- ment of financial ability and intent to the Immigration Officer. However, the Medical Officer simply did not have all of the information required to make such an assessment, and this is because the Applicant had failed to provide relevant information about the availability of private special edu- cation for Arkojeet in the Ottawa area and the costs of that education. The Applicant provided no information or evidence about private schools in the Ottawa area where Arkojeet could be enrolled, the curriculum of- fered, how any such curriculum would meet Arkojeet’s needs, or the ac- tual costs of enrollment and associated services. The omission of this in- formation made it impossible for the Medical Officer to assess the Applicant’s ability to pay, and the overall feasibility of the Applicant’s plan. Hence, it was not unreasonable for the Medical Officer to indicate that his initial opinion had not changed or for the Immigration Officer to rely upon this unchanged assessment. 69 The onus was on the Applicant to establish a reasonable working plan that the Officers, in their respective roles, could assess. As the Medical Officer pointed out in his assessment, In the information provided by the applicant concerning the demand on Canadian health and social services that the applicant has not di- rectly addressed the issue of costs as required nor his/her “ability and intent” to pay for the services. Banik v. Canada (MCI) James Russell J. 307

Note: The applicant has contacted people in the public school system in Ottawa for advice concerning resources for the special needs of his autistic and mentally challenged son and has provided some esti- mates on the cost of Arkojeet’s special education. There is however no mention of the private school in which he would be registered nor the yearly costs of the programs which often include physiotherapy and occupational therapy. In order to judge whether the Applicant has a viable plan, one needs specific information concerning who the providers are, preferably with letters of intent, and the yearly costs that would accrue...” 70 The Applicant says that this mistake would have been obvious to both Officers and they should have alerted him to the deficiencies in his plan and provided him with an opportunity to make further submissions on point. As the Respondent points out, there was no duty on an Immigra- tion Officer to advise the Applicant on how to improve his application after he was provided with a procedural fairness letter. See Ikede v. Canada (Minister of Citizenship and Immigration), 2012 FC 1354 (F.C.) at paragraph 23. 71 As the Applicant’s affidavit submitted with this application makes clear, the Applicant was fully aware that the cost of education was “of most concern to the Officer,” but, not realizing that the family “cannot pay for education in the Ottawa-Carleton District School Board,” the family did not research or make submissions on “private school options” and their costs. 72 The procedural fairness letter clearly asks the Applicant to address the “social services required in Canada for the period indicated above,” and that the Applicant provide an “individualized plan to ensure that no excessive demand will be imposed on Canadian social services for the entire period indicated above, and your signed Declaration of Ability and Intent.” 73 Hence, I do not think the Fairness Letter misled the Applicant in any way as to what was required. His failure to research private school op- tions and their costs was, he now acknowledges, his mistake because he did not realize that the family could not pay for public education in the Ottawa-Carleton School District. I accept that the Applicant did his best to address the issues raised in the procedural fairness letter, but he was represented by an immigration consultant and any mistakes which he or his counsel made cannot now be disregarded. 308 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

74 In the end, this case is about the failure of the Applicant to submit sufficient information on a crucial point of concern to the Officers. As Justice Roger Hughes pointed out in Sharma, above, at paragraph 18, “The onus rests on the Applicants to make out their case, including such factors as may be relevant in setting out a workable plan. The Officer committed no reviewable error in dealing with the matter based on the information available.” 75 As the Federal Court of Appeal made clear in Sapru, above, at para- graph 32, It follows that I would answer the first certified question as follows: A medical officer is not obligated to seek out information about the applicants’ ability and intent to mitigate exces- sive demands on social services from the outset of the in- quiry. It is sufficient for the medical officer to provide a Fairness Letter that clearly sets out all of the relevant con- cerns and provides a true opportunity to meaningfully re- spond to all of the concerns of the medical officer. In my view, the procedural fairness letter in the present case clearly sets out all of the relevant concerns and provided the Applicant with a true opportunity to respond to those concerns. The Applicant’s own affidavit makes it clear that he understood it was the costs of education that was “of most concern to the Officer,” and that he failed to fully address this concern because of his own misapprehension about public education in the Ottawa-Carleton School District. Although I am extremely sympa- thetic to the Applicant and the lost opportunity that this case represents, I cannot on the jurisprudence make the Applicant’s own admitted mistake the responsibility of the Officers, either by finding procedural fairness or an unreasonable error. 76 Counsel agree there is no question for certification and the Court concurs.

Judgment THIS COURT’S JUDGMENT is that i. The application is dismissed. ii. There is no question for certification. Application dismissed. Manga v. Canada (MCI) 309

[Indexed as: Manga v. Canada (Minister of Citizenship and Immigration)] Muhammad Naveed Manga, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-7940-12 2013 FC 799 Yvan Roy J. Heard: May 6, 2013 Judgment: July 18, 2013 Immigration and citizenship –––– Refugee protection — Convention refugee or person in need of protection seeking resettlement –––– Applicant, citizen of Pakistan, had purchased plot of land that he and his brother wanted to use in order to build interfaith English school — Applicant had been politically active since 2007 — Members of extremist organization who opposed use of land for non-Islamic school were responsible for violent events of increasing severity to- wards applicant beginning in May 2010 — Land was taken away from applicant in August 2010 and he and his brother were threatened and beaten on site — Applicant’s brother moved 100 miles away from site and on December 2, 2010, applicant fled to Canada, claiming refugee protection — Member of Refugee Protection Division of Immigration and Refugee Board (member) denied refu- gee claim on basis that applicant was not Convention refugee or person in need or protection as defined in ss. 96 and 97 of Immigration and Refugee Protection Act — Applicant brought application for judicial review of decision — Applica- tion granted — It was not possible to ascertain if member’s decision was reason- able based on reasons given; redetermination was required by different panel — Member negated nexus with Convention grounds by concluding that motivation for acts of violence was merely land and not connected to possible religious or political motivation; absence of analysis with respect to what constituted heart of matter could not be condoned. Immigration and citizenship –––– Refugee protection — Elements of pro- tected refugee status — Fear of persecution — Well-founded fear — Sub- jective fear –––– Applicant, citizen of Pakistan, had purchased plot of land that he and his brother wanted to use in order to build interfaith English school — Applicant had been politically active since 2007 — Members of extremist or- ganization who opposed use of land for non-Islamic school were responsible for violent events of increasing severity towards applicant beginning in May 2010 — Land was taken away from applicant in August 2010 and he and his 310 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th) brother were threatened and beaten on site afterward — Applicant’s brother moved 100 miles away from site and on December 2, 2010 applicant fled to Canada, claiming refugee protection — Member of Refugee Protection Division of Immigration and Refugee Board (member) denied refugee claim on basis that applicant was not Convention refugee or person in need or protection as defined in ss. 96 and 97 of Immigration and Refugee Protection Act — Applicant brought application for judicial review of decision — Application granted — It was not possible to ascertain if member’s decision was reasonable based on rea- sons given; redetermination was required by different panel — Member con- tested applicant’s subjective fear, since his brother had not fled Pakistan, but brother did move away from violence for fear of retribution; to some extent that may have shown fear — Member contested subjective fear on basis that appli- cant could have merely sold land at any price in order to diminish or eliminate risk to himself and his family; member did not consider that acts of violence increased in severity after plot of land was taken away. Cases considered by Yvan Roy J.: A.T.A. v. Alberta (Information & Privacy Commissioner) (2011), 339 D.L.R. (4th) 428, 2011 CarswellAlta 2068, 2011 CarswellAlta 2069, 2011 SCC 61, (sub nom. Alberta Teachers’ Association v. Information & Privacy Commissioner (Alta.)) 424 N.R. 70, 52 Alta. L.R. (5th) 1, 28 Admin. L.R. (5th) 177, [2012] 2 W.W.R. 434, (sub nom. Alberta (Information & Privacy Commissioner) v. Alberta Teachers’ Association) [2011] 3 S.C.R. 654, (sub nom. Alberta Teachers’ Association v. Information and Privacy Commis- sioner) 519 A.R. 1, (sub nom. Alberta Teachers’ Association v. Information and Privacy Commissioner) 539 W.A.C. 1, [2011] S.C.J. No. 61 (S.C.C.) — considered Agraira v. Canada (Minister of Public Safety and Emergency Preparedness) (2013), 2013 CarswellNat 1983, 2013 CarswellNat 1984, 2013 SCC 36, 52 Admin. L.R. (5th) 183 (S.C.C.) — considered N.L.N.U. v. Newfoundland & Labrador (Treasury Board) (2011), 2011 Car- swellNfld 414, 2011 CarswellNfld 415, 2011 SCC 62, 38 Admin. L.R. (5th) 255, (sub nom. Nfld. and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board)) 2011 C.L.L.C. 220-008, (sub nom. Newfoundland & Labrador Nurses’ Union v. Newfoundland & Labrador (Treasury Board)) 424 N.R. 220, 340 D.L.R. (4th) 17, D.T.E. 2012T-7, (sub nom. Newfoundland & Labrador Nurses’ Union v. Newfoundland & Labrador (Treasury Board)) [2011] 3 S.C.R. 708, 213 L.A.C. (4th) 95, 97 C.C.E.L. (3d) 199, (sub nom. Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board)) 986 A.P.R. 340, (sub nom. Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board)) 317 Nfld. & P.E.I.R. 340, [2011] S.C.J. No. 62 (S.C.C.) — followed Manga v. Canada (MCI) Yvan Roy J. 311

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 Generally — referred to s. 72(1) — pursuant to s. 96 — considered s. 97 — considered

APPLICATION for judicial review of decision by member of Refugee Protec- tion Division which determined applicant was not Convention refugee or person in need of protection as defined in ss. 96 and 97 of Immigration and Refugee Protection Act.

G. Michael Sherritt, for Applicant Camille N. Audain, for Respondent

Yvan Roy J.:

1 This is an application for judicial review made pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 (the “Act”) of the decision of a member of the Refugee Protection Division of the Immigration and Refugee Board (the “Board”). The Board deter- mined the applicant, Mr. Muhammad Naveed Manga, a citizen of Paki- stan, was not a Convention refugee or a person in need of protection as defined in sections 96 and 97 of the Act. 2 The Court has determined that, in view of the record before the Board, the matter has to be returned before a new adjudicator for deci- sion. The reasons provided by the Board do not meet the required stan- dard. They do not serve the basic purpose of demonstrating that the deci- sion falls within a range of possible outcomes. Given my conclusion, I do not express any opinion as to whether or not the applicant qualifies under sections 96 and 97 of the Act. 312 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

Facts 3 It will not be necessary to delve into the facts of this case, other than to point to the abundance of articulated allegations before the Board that the applicant was subjected to physical violence, indeed death threat, due to political and religious reasons. 4 The applicant fled to Canada on December 2, 2010, after a series of events starting in May 2010. The whole case turns on a plot of land, in Pakistan, that the applicant and his brother wanted to use in order to build an interfaith English school. 5 The applicant alleges that the piece of land was taken from him by people who opposed the use of the land for a non-Islamic school. 6 The applicant also alleged that he was politically active since 2007. As part of his activities, he would have been involved in attempts to dis- credit a member of the provincial assembly with, allegedly, ties to an Islamic extremist organization. Members of the extremist organization would be largely responsible for the violent events in relation to the ap- plicant that took place, starting in May 2010.

Decision 7 In spite of the evidence led, and the abundance of allegations made that violent incidents were related to political and religious motivations, the Board seems, for all intents and purposes, to have ignored the issue in its June 29, 2012 decision. Without providing any analysis or reason, the Board categorizes the taking away of the land as merely a land dispute. That characterization does not give rise to an application of section 96 of the Act because the persecution would not be on the basis of a Conven- tion ground. As for section 97 of the Act, the Board concludes that the applicant is not at risk if he does not try to regain his land. 8 The interrogation of the applicant by the Board went over two hear- ings. Much attention was given to the applicant’s allegations about the violence towards him being over a plot of land. Indeed, the interrogation of the applicant conducted by the Board looked like a cross-examination more than once. Yet, the Board offers in the end little analysis for its decision.

Arguments and Standard of Review 9 The parties agree that the standard of review is reasonableness. I con- cur. We are not confronted in this case with a situation where reasons are not provided when they should be. There are reasons. The question Manga v. Canada (MCI) Yvan Roy J. 313

before the Court is one of mixed fact and law that attracts a standard of reasonableness. As the Supreme Court of Canada ruled in A.T.A. v. Alberta (Information & Privacy Commissioner), [2011] 3 S.C.R. 654 (S.C.C.), at paragraph 39: When considering a decision of an administrative tribunal interpret- ing or applying its home statute, it should be presumed that the ap- propriate standard of review is reasonableness. 10 Where the issue is whether or not the reasons for a decision are defi- cient, a standard of reasonableness applies. In N.L.N.U. v. Newfoundland & Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708 (S.C.C.) [Newfoundland and Labrador Nurses’ Union], the Court dis- poses of the issue thus: [22] It is true that the breach of a duty of procedural fairness is an error in law. Where there are no reasons in circumstances where they are required, there is nothing to review. But where, as here, there are reasons, there is no such breach. Any challenge to the reason- ing/result of the decision should therefore be made within the reason- ableness analysis. 11 The applicant argues that the findings made by the Board were made in a perverse and capricious manner. Furthermore, the Board erred in the view of the applicant “in finding that the alleged risk lacked a nexus to a Convention ground” and was unreasonable in finding a lack of subjective fear. 12 The respondent relies heavily if not exclusively on the deference that is owed to administrative tribunals.

Analysis 13 The starting point of the analysis of what constitutes a reasonable de- cision is of course New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190 (S.C.C.) [Dunsmuir]. It is paragraph 47 which de- scribes the qualities that make a decision reasonable. The paragraph reads: Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards of rea- sonableness: certain questions that come before administrative tribu- nals do not lend themselves to one specific, particular result. Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range of accept- able and rational solutions. A court conducting a review for reasona- bleness inquires into the qualities that make a decision reasonable, 314 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

referring both to the process of articulating the reasons and to out- comes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. 14 The reviewing Court will show deference, but it will not abdicate its role. At the end of paragraph 48 of Dunsmuir, the Court acknowledges that much. 15 On the other hand, the adequacy of reasons cannot, in and of itself, support the quashing of an administrative tribunal decision. The Supreme Court of Canada, in N.L.N.U., cited above, saw the reasons being consid- ered together with the outcome: [14] Read as a whole, I do not see Dunsmuir as standing for the pro- position that the “adequacy” of reasons is a stand-alone basis for quashing a decision, or as advocating that a reviewing court under- take 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 (loose-leaf), at ss.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, refer- ring both to the process of articulating the reasons and to outcomes” (para. 47). 16 In the case at bar, the Board negates the nexus with Convention grounds by simply concluding, without more, that the motivation for the acts of violence was the land. It never connects the taking of the land with a possible religious or political motivation. Not every argument or small bit of evidence need be addressed in reasons. But an absence of analysis with respect to what constitutes the heart of the matter cannot be condoned. The Court in N.L.N.U., at paragraph 16, provides some gui- dance as to when reasons will suffice: Reasons may not include all the arguments, statutory provisions, ju- risprudence 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 decision-maker is not required to make an explicit finding on each constituent element, however subordinate, leading to its final conclusion (Service Employ- ees’ International Union, Local No. 333 v. Nipawin District Staff Manga v. Canada (MCI) Yvan Roy J. 315

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. 17 Such is the test: the reasons must allow the Court to know why the decision was made. The reasons that would allow this Court to under- stand why the evidence of political and religious motivation must be dis- counted are non-existent. They do not have that intelligibility required by the law. It is not enough, in my view, to state facts and to reach a conclu- sion not even connected with the facts without offering any articulation. There has to be a reason for reaching a conclusion. In some cases, it may be implicit. In others, it must be articulated, even minimally, or enough to understand why it was made. 18 There are many examples that could be used to illustrate the point. Thus, it is difficult to understand why the Board considers what it refers to as “the situation of similarly situated people in Pakistan.” The evi- dence shows that the applicant’s brother chose to leave the place where the plot of land is located following the violent expulsion. It would ap- pear that the reference to “similarly situated people” might be for the purpose of contesting the legitimacy of the applicant’s subjective fear or risk. However, how that is relevant remains a matter of conjecture since it is the subjective fear of the applicant that counts, not that of his brother. Indeed the applicant’s brother may not have left Pakistan but he also departed and would have moved some 100 miles from where the violence took place for fear of retribution. That, to some extent, may well show fear. 19 The Board also contests the subjective fear on the basis that the appli- cant could have diminished or even eliminated the risk had he and his family sold the land at any price. To say the least, this is rather odd. This is in line though with the Board’s belief that this was only a land issue. As it notes, the protection of property rights is not recognized as a valid basis for refugee protection. But in doing so, the Board, without reasons that could make understandable to a reviewing court its decision, does not seem to even consider that the acts of violence increased in their se- verity after the plot of land was taken away in August 2010 and the ap- plicant and his brother were threatened and beaten on the site itself. 20 It will suffice for the purpose of this decision to note that the appli- cant alleges that he continued to be the subject of violent attacks, even 316 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

after the plot of land had been taken over. One such incident would have taken the applicant to hospital. Less than a month later, following a visit to a lawyer, four men on two motorcycles opened fire on a car he was in. 21 In the end, the Board states on numerous occasions that the refugee claim fails, but without articulating reasons, whatever they may be, for such rejection. The reviewing court is left with bold statements, but with- out knowing if the evidence was misapprehended or disbelieved, and if so, why it is disbelieved. Another possibility for rejecting the refugee claim could be that the Board found that the actions in Pakistan did not rise to the level of persecution or that other alternatives were available to the applicant. However, on the record before this Court, there is no way to tell. 22 The admonition of the Supreme Court that “(R)eviewing judges should pay ‘respectful attention’ to the decision maker’s reasons, and be cautious about substituting their own view of the proper outcome by designating certain omissions in the reasons to be fateful” (N.L.N.U., supra, at paragraph 17) is well taken. In this case, it is not so much cer- tain omissions in the reasons that are problematic as a general lack of articulation of reasons to make understandable the outcome chosen by the Board. 23 As was again pointed out very recently by the Supreme Court in a case involving this Act, the Minister’s reasons were found to be reasona- ble because “(A)lthough brief, they made clear the process he had al- lowed in ruling on the applicant’s application. He reviewed and consid- ered all the material and evidence before him. ... In short, his reasons allow this Court to clearly understand why he made the decision he did” (Agraira v. Canada (Minister of Public Safety and Emergency Prepared- ness), 2013 SCC 36 (S.C.C.), at para 89). 24 My Reasons for Judgment should be taken for what they are. This Court has found that it was not possible, on the basis of the decision of the Board, to ascertain if the decision is reasonable. Accordingly, it must be returned to a different panel for redetermination. Nothing in my rea- sons should be taken to suggest any assessment of whether or not the applicant is a refugee under the Act. That determination is for a differ- ently constituted panel of the Board to make.

Judgment THIS COURT’S JUDGMENT is that 1. The application for judicial review is granted. Manga v. Canada (MCI) Yvan Roy J. 317

2. This matter is to be returned to a different panel of the Refugee Protection Division of the Immigration and Refugee Board for redetermination. 3. There is no question of general importance to certify. Application granted. 318 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

[Indexed as: Kathirgamathamby v. Canada (Minister of Citizenship and Immigration)] Sabanayagam Kathirgamathamby, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-2972-12 2013 FC 811 E. Heneghan J. Heard: January 31, 2013 Judgment: July 23, 2013 Immigration and citizenship –––– Exclusion and removal — Inadmissible classes — Criminality –––– Applicant was citizen of Sri Lanka who landed at Los Angeles airport in possession of fraudulent passport — Applicant was ar- rested and charged with fraud under United States Code — Applicant pleaded guilty to charge and was held in immigration custody from September 2007 until April 2009 — Applicant subsequently entered Canada and was found to be refu- gee — Applicant, wife and child applied for permanent residence — Applicant was found inadmissible under s. 36(1) of Immigration and Refugee Protection Act for offence of fraud in United States — Applicant brought application for judicial review — Application granted — Application of s. 133 of Act did not arise — Officer committed reviewable error in conduct of equivalency analy- sis — Officer’s decision stated that American offence was equivalent to s. 403 of Criminal Code, however there was neither any evidence in record to support this finding, nor any reasoning from officer explaining how he reached this con- clusion — Decision failed to meet criteria of transparency and intelligibility — Officer further erred in declining to consider H&C factors. Cases considered by E. Heneghan J.: Abid v. Canada (Minister of Citizenship & Immigration) (2011), 2011 CF 164, 2011 CarswellNat 1139, 2011 FC 164, 2011 CarswellNat 347, 96 Imm. L.R. (3d) 140, 384 F.T.R. 74 (Eng.), [2011] F.C.J. No. 208 (F.C.) — considered Hill v. Canada (Minister of Employment & Immigration) (1987), 73 N.R. 315, 1987 CarswellNat 15, 1 Imm. L.R. (2d) 1, [1987] F.C.J. No. 47 (Fed. 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. Kathirgamathamby v. Canada (MCI) E. Heneghan J. 319

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 Uppal v. Canada (Minister of Citizenship & Immigration) (2006), 2006 FC 338, 2006 CarswellNat 697, 2006 CF 338, 53 Imm. L.R. (3d) 284, 2006 Car- swellNat 2800, 289 F.T.R. 196, [2006] F.C.J. No. 455 (F.C.) — considered Statutes considered: Criminal Code, R.S.C. 1985, c. C-46 s. 403 — considered Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 25 — considered s. 36(1) — considered s. 36(1)(b) — considered s. 44 — referred to s. 133 — considered Crimes and Criminal Procedure Code, 18 U.S.C. 47 s. 1028(a)(4) — considered Rules considered: Federal Courts Immigration and Refugee Protection Rules, SOR/93-22 R. 9 — considered

APPLICATION for judicial review of decision by officer finding applicant inad- missible to Canada.

Micheal Crane, for Applicant Asha Gafar, for Respondent

E. Heneghan J.: Introduction 1 Mr. Sabanayagam Kathirgamathamby (the “Applicant”) seeks judi- cial review of the decision of an officer (the “Officer”) at Citizenship and Immigration Canada at the Case Processing Centre in Vegreville, Al- berta, dated March 6, 2012, denying his application for permanent resi- dence. The application was refused because the Applicant was found to be inadmissible to Canada pursuant to paragraph 36(1)(b) of the Immi- gration and Refugee Protection Act, S.C. 2001, c. 27 (the “Act”). 320 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

Background 2 The Applicant is a citizen of Sri Lanka. On September 25, 2007, he landed at the Los Angeles airport, from Sri Lanka, in possession of a fraudulent passport. He was arrested and charged with fraud under the United States Code, particularly 18 U.S.C. §1028(a)(4). He pleaded guilty to the charge on December 13, 2007. He was held in immigration custody from September 2007 until April 2009. 3 In May 2009, the Applicant entered Canada and applied for refugee protection. A report was prepared, pursuant to section 44 of the Act, on October 2, 2009. On February 1, 2011, the Applicant was found to be a Convention refugee. 4 On February 18, 2011, the Applicant, his wife and two children ap- plied for permanent residence in Canada. On November 21, 2011, Citi- zenship and Immigration Canada (“CIC”) asked the Applicant to explain his criminal charge in the United States and to amend his application to reflect his conviction. By letter dated November 30, 2011, the Applicant explained that because his life was in danger in Sri Lanka, he “had to obtain a fraudulent passport to escape Sri Lanka.” 5 By letter dated March 6, 2012, the Officer informed the Applicant that he was found inadmissible under subsection 36(1) of the Act for the offence of fraud in the United States in 2007. The Officer found the of- fence under the United States Code 1028(a)(4) to be equivalent to section 403 of the Criminal Code, R.S.C. 1985, c. C-46 (the “Criminal Code”), an offence punishable by imprisonment for a term not exceeding ten years. Accordingly, the Officer refused the Applicant’s permanent resi- dence application.

Submissions 6 The Applicant focused his initial arguments upon the equivalency as- sessment conducted by the Officer. He argued that he could not be charged or convicted in Canada, in the face of section 133 of the Act. He submits that there cannot be equivalency in the circumstances of a Con- vention refugee who was convicted of any offence equivalent to those set out in section 133. 7 Further, the Applicant submits that the Officer erred in the equivalency analysis. He argues that section 403 of the Criminal Code relates to the use of documents relative to identity theft. He says that since this essential element of section 403 was not established, the Of- Kathirgamathamby v. Canada (MCI) E. Heneghan J. 321

ficer erred in finding equivalency between the American offence of which he was convicted and section 403. 8 The Applicant also argues that the Officer unreasonably failed to con- sider the availability of humanitarian and compassionate (“H&C”) fac- tors, pursuant to section 25 of the Act, when rejecting his permanent resi- dence application. 9 The Minister of Citizenship and Immigration (the “Respondent”) dis- putes the Applicant’s view of section 133 of the Act and submits that section 133 does not apply to his situation because he was not a refugee claimant in Canada when he was charged and convicted. 10 The Respondent initially argued that the Officer reasonably con- cluded that section 403 was equivalent to the offence for which the Ap- plicant was convicted in the United States. 11 The Respondent also argues that the Officer reasonably did not con- sider H&C factors, on the basis that the Applicant had not requested such consideration and had failed to disclose his conviction of an offence. 12 In the course of the hearing of this application for judicial review fur- ther arguments arose as to the evidentiary basis for the Officer’s equivalency analysis and the parties were given the opportunity to file further submissions, first by the Respondent with submissions to be filed by the Applicant in reply. The Respondent, by further submissions filed on February 15, 2013, argued that the Officer had not been authorized to conduct an equivalency analysis because the Applicant had already been found inadmissible for his conviction in the United States. As well, the Respondent sought to file the affidavit of Helen Medeiros, together with exhibits, in support of its further submissions. 13 By reply submissions dated March 7, 2013, Counsel for the Applicant objected to the Respondent’s attempts to introduce further evidence and argued that the Respondent’s defence had been based on the Officer’s purported equivalency exercise, and not on a prior inadmissibility finding.

Discussion and Disposition 14 The dispositive issue in this application for judicial review is the Of- ficer’s finding of inadmissibility on the basis of subsection 36(1), specifi- cally paragraph 36(1)(b). This finding depends on the equivalency analy- sis conducted by the Officer. The inadmissibility finding then is a question of mixed fact and law reviewable on the standard of reasonable- 322 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

ness; see the decision in New Brunswick (Board of Management) v. Dun- smuir, [2008] 1 S.C.R. 190 (S.C.C.) at para. 51. 15 In the present case, the three issues raised by the Applicant are sub- ject to review on the standard of reasonableness. The issues of the availa- bility of a section 133 defence and the Officer’s equivalency analysis involve questions of mixed fact and law, while the issue of the Officer’s failure to consider H&C factors relates to the exercise of his discretion. 16 In Dunsmuir, supra, para. 47, the Supreme Court of Canada stated: ...A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the pro- cess of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justifica- tion, transparency and intelligibility within the decision-making pro- cess. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in re- spect of the facts and law. 17 I agree with the Respondent that the application of section 133 does not arise here. The decision in Uppal v. Canada (Minister of Citizenship & Immigration) (2006), 289 F.T.R. 196 (F.C.) is determinative. The Ap- plicant used a fraudulent document to enter the United States, not Can- ada. At paragraphs 21-25, Justice Layden-Stevenson made it clear that section 133 could shield a person from a finding of inadmissibility only if the fraudulent document was used for the purpose of entering Canada. 18 However, in my opinion, there is a problem with the Officer’s treat- ment of the equivalency issue and with the Respondent’s submissions concerning the same. 19 In his initial submissions, the Respondent took the position that the Officer had reasonably concluded that there was equivalency between the American offence and section 403 of the Criminal Code but in the supplementary submissions, he argues that the Officer was not author- ized to conduct an equivalency assessment because the Applicant had already been found to be inadmissible. 20 In my opinion, those two positions advanced by the Respondent are inconsistent and diametrically opposed. The basis for the inadmissibility finding was the alleged equivalency between the offence in the United States and the offence described in section 403 of the Criminal Code. Further, in any event, in my view the equivalency finding is flawed be- cause the Certified Tribunal Record (“CTR”) does not contain evidence that would support that finding. This evidentiary defect is not cured by Kathirgamathamby v. Canada (MCI) E. Heneghan J. 323

the affidavit which the Respondent sought to file with his further submis- sions of February 15, 2013. 21 The Respondent seeks to rely on the material contained in the re- sponse to the request made under Rule 9 of the Federal Courts Immigra- tion and Refugee Protection Rules, SOR/93-22 as constituting the evi- dence for the equivalency analysis. In my opinion, this argument cannot succeed. 22 The Rule 9 response, according to the terms of Rule 9, is the decision and the reasons for that decision. The decision itself cannot be the “evi- dence” in support of the decision. 23 In any event, neither the Rule 9 response nor the CTR contain evi- dence as to the constituent elements of the American offence for the pur- pose of conducting the tests for equivalency as set out in the decision in Hill v. Canada (Minister of Employment & Immigration) (1987), 73 N.R. 315 (Fed. C.A.). The absence of a reliable evidentiary foundation for the equivalency analysis means, in my opinion, that that analysis is not reasonable. 24 The Officer committed a reviewable error in the conduct of the equivalency analysis. The Officer’s decision simply states that the Amer- ican offence is equivalent to section 403 of the Criminal Code. However, there is neither any evidence in the record to support this finding, nor any reasoning from the Officer explaining how he reached this conclusion. The decision accordingly fails to meet the criteria of transparency and intelligibility. 25 In my opinion, the Officer further erred in declining to consider H&C factors. Although the Applicant did not explicitly request consideration of H&C factors, he did point out that he used a fraudulent passport in order to escape danger to his life. He provided an explanation. 26 This fact, together with the fact that he was recognized in Canada as a Convention refugee, invites consideration of all relevant factors that could promote the continuing protection of the Applicant. The H&C dis- cretion conferred by section 25 of the Act is such a relevant factor, a point recognized by Justice Snider in Abid v. Canada (Minister of Citizenship & Immigration), 384 F.T.R. 74 (Eng.) (F.C.) at paras. 35 and 39, as follows: [35] The first error made by the Officer, in my view, is that he incor- rectly found that no submissions on H&C grounds were made. While the submissions of the Applicants’ consultant leave much to be de- sired, there are a number of references to H&C grounds (albeit with- 324 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

out use of the term “humanitarian and compassionate grounds”). The consultant refers to the status of the Principal Applicant as a Conven- tion refugee. Moreover, the letter of January 26, 2010 from the con- sultant contains the following: It is also important to understand my client is a very de- cent, honest and credible person.... It is true that he made a mistake 17 years ago and he paid for that mistake and he is now a family man and a licensed technician in Canada. He has no criminal records in Canada or anywhere in the world after 1993. In my view, these were clear H&C submissions. [...] [39] The H&C Guidelines provide that, when assessing criminal in- admissibility and an exemption for it, an officer is required to take into account a series of factors. One of the key factors is the likeli- hood of re-offending. 11.4. Criminal inadmissibilities When considering the H&C factors, officers should assess whether the known inadmissibility, for example, a crimi- nal conviction, outweighs the H&C grounds. They may consider factors such as the applicant’s actions, including those that led to and followed the conviction. Officers should consider: • the type of criminal conviction; • what sentence was received; • the length of time since the conviction; • whether the conviction is an isolated incident or part of a pattern of recidivist criminality; and • any other pertinent information about the circum- stances of the crime 27 In the result, this Application for judicial review is allowed, the deci- sion is set aside and the matter remitted to a different officer for re-con- sideration, no question for certification arising.

Order THIS COURT ORDERS that this Application for judicial review is allowed, the decision is set aside and the matter remitted to a different officer for re-consideration, no question for certification arising. Application granted. Beri v. Canada (MCI) 325

[Indexed as: Beri v. Canada (Minister of Citizenship and Immigration)] Csaba Beri Piroska Korbely Csaba Martin Beri Virginia Beri Kevin Beri, Applicants and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-5804-12 2013 FC 854 Cecily Y. Strickland J. Heard: March 19, 2013 Judgment: August 9, 2013 Immigration and citizenship –––– Refugee protection — Elements of pro- tected refugee status — Protection of country of nationality — Sufficiency of state protection — Efforts to access state protection –––– Applicants were citizens of Hungary of Roma ethnicity — Refugee Protection Division (RPD) of Immigration and Refugee Board determined that applicants were not Conven- tion refugees and were not persons in need of protection pursuant to ss. 96 and 97 of Immigration and Refugee Protection Act — RPD acknowledged documen- tary evidence confirming that violent attacks against Roma continued and that Roma were discriminated against in almost all fields of life in Hungary — RPD concluded that, on totality of evidence, applicants failed to rebut presumption of state protection and that applicants had not taken all reasonable steps to avail themselves of that protection before making refugee claim — Applicants brought application for judicial review of decision of RPD — Application granted — RPD erred in its state protection analysis by focusing almost exclu- sively on efforts being made by Hungarian government to curb persecution against Roma, while conducting little or no analysis of operational effectiveness of those measures — RPD also focused on applicants’ alleged failure to seek out protection from alternate authorities without regard to practical significance of that reporting to real issue of state protection — RPD’s decision was unreasona- ble and had to be set aside. Cases considered by Cecily Y. Strickland J.: Balogh v. Canada (Minister of Citizenship & Immigration) (2012), 2012 FC 216, 2012 CarswellNat 396, 2012 CF 216, 2012 CarswellNat 1252, [2012] F.C.J. No. 230, [2012] A.C.F. No. 230 (F.C.) — considered 326 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

Bautista v. Canada (Minister of Citizenship & Immigration) (2010), 2010 CF 126, 2010 CarswellNat 1440, 2010 CarswellNat 260, 2010 FC 126, [2010] F.C.J. No. 153 (F.C.) — referred to Beharry v. Canada (Minister of Citizenship & Immigration) (2011), 2011 CF 111, 2011 CarswellNat 994, 96 Imm. L.R. (3d) 288, 2011 CarswellNat 228, 2011 FC 111, 383 F.T.R. 161 (Eng.) (F.C.) — referred to Carrillo v. Canada (Minister of Citizenship & Immigration) (2008), 2008 FCA 94, 69 Imm. L.R. (3d) 309, 2008 CAF 94, (sub nom. Flores Carrillo v. Canada (Minister of Citizenship & Immigration)) [2008] 4 F.C.R. 636, 2008 CarswellNat 1953, 2008 CarswellNat 605, 377 N.R. 393, [2008] F.C.J. No. 399 (F.C.A.) — considered Da Souza v. Canada (Minister of Citizenship & Immigration) (2010), 2010 FC 1279, 2010 CarswellNat 5019, 383 F.T.R. 9 (Eng.), [2010] F.C.J. No. 1658 (F.C.) — referred to Flores v. Canada (Minister of Citizenship & Immigration) (2008), 2008 Car- swellNat 1702, 2008 FC 723, 2008 CarswellNat 2800, 2008 CF 723, [2008] F.C.J. No. 969 (F.C.) — referred to Flores Alcazar v. Canada (Minister of Citizenship & Immigration) (2011), 2011 CarswellNat 1174, 2011 CF 173, 97 Imm. L.R. (3d) 21, 2011 CarswellNat 307, 2011 FC 173 (F.C.) — referred to Garcia v. Canada (Minister of Citizenship & Immigration) (2007), 2007 FC 79, 2007 CarswellNat 187, 2007 CF 79, 2007 CarswellNat 1055, [2007] 4 F.C.R. 385, 308 F.T.R. 54 (Eng.), [2007] F.C.J. No. 118 (F.C.) — referred to Gulyas v. Canada (Minister of Citizenship and Immigration) (2013), 2013 Car- swellNat 1907, 2013 CF 254, 2013 FC 254, 2013 CarswellNat 550, 16 Imm. L.R. (4th) 1 (F.C.) — considered Hercegi v. Canada (Minister of Citizenship & Immigration) (2012), 2012 FC 250, 2012 CarswellNat 408, 2012 CarswellNat 1713, 2012 CF 250, [2012] F.C.J. No. 273 (F.C.) — considered Hinzman, Re (2007), 2007 CarswellNat 950, 2007 FCA 171, (sub nom. Hinzman v. Canada (Minister of Citizenship & Immigration)) 282 D.L.R. (4th) 413, 2007 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.) — referred to Horvath v. Canada (Minister of Citizenship & Immigration) (2012), 2012 Car- swellNat 466, 2012 FC 253, 2012 CarswellNat 1715, 2012 CF 253, [2012] F.C.J. No. 275 (F.C.) — considered Jaroslav v. Canada (Minister of Citizenship & Immigration) (2011), 2011 FC 634, 2011 CarswellNat 2106, 2011 CF 634, 2011 CarswellNat 3891, 29 Ad- min. L.R. (5th) 35, (sub nom. Spacil v. Canada (Minister of Citizenship & Immigration)) 390 F.T.R. 248 (Eng.), [2011] A.C.F. No. 816, [2011] F.C.J. No. 816 (F.C.) — referred to Beri v. Canada (MCI) 327

Kemenczei v. Canada (Minister of Citizenship and Immigration) (2012), 14 Imm. L.R. (4th) 265, 2012 CarswellNat 4549, 2012 FC 1349, 2012 Car- swellNat 5569, 2012 CF 1349, [2012] A.C.F. No. 1457, [2012] F.C.J. No. 1457 (F.C.) — considered Kis v. Canada (Minister of Citizenship & Immigration) (2012), 2012 FC 606, 2012 CarswellNat 1554, 2012 CF 606, 2012 CarswellNat 4089, [2012] F.C.J. No. 603 (F.C.) — considered 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.) — re- ferred to Majoros v. Canada (Minister of Citizenship and Immigration) (2013), 2013 CF 421, 2013 CarswellNat 1388, 2013 FC 421, 2013 CarswellNat 1112 (F.C.) — followed Mendez v. Canada (Minister of Citizenship & Immigration) (2008), 2008 Car- swellNat 2780, 2008 CF 584, 2008 CarswellNat 1499, 2008 FC 584, [2008] F.C.J. No. 771 (F.C.) — referred to Meza Varela v. Canada (Minister of Citizenship & Immigration) (2011), 2011 CarswellNat 4927, 2011 FC 1364, 2011 CF 1364, 2011 CarswellNat 5374, [2011] F.C.J. No. 1663 (F.C.) — considered Moczo v. Canada (Minister of Citizenship and Immigration) (2013), 2013 FC 734, 2013 CF 734, 2013 CarswellNat 2233, 2013 CarswellNat 2513 (F.C.) — considered Molnar v. Canada (Minister of Citizenship & Immigration) (2012), 2012 FC 530, 2012 CarswellNat 1344, 2012 CF 530, 2012 CarswellNat 5125 (F.C.) — considered New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1, 69 Admin. L.R. (4th) 1, 69 Imm. L.R. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) [2008] 1 S.C.R. 190, 844 A.P.R. 1, (sub nom. Dunsmuir v. New Brunswick) 2008 C.L.L.C. 220-020, D.T.E. 2008T-223, 329 N.B.R. (2d) 1, (sub nom. Dunsmuir v. New Brunswick) 170 L.A.C. (4th) 1, (sub nom. Dunsmuir v. New Brunswick) 291 D.L.R. (4th) 577, 2008 CarswellNB 124, 2008 CarswellNB 125, 2008 SCC 9, 64 C.C.E.L. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) 95 L.C.R. 65, [2008] S.C.J. No. 9, [2008] A.C.S. No. 9 (S.C.C.) — followed Orgona v. Canada (Minister of Citizenship and Immigration) (2012), 2012 Car- swellNat 4831, 2012 FC 1438, 2012 CarswellNat 5316, 2012 CF 1438, [2012] F.C.J. No. 1545 (F.C.) — considered Ortega v. Canada (Minister of Citizenship & Immigration) (2012), 2012 FC 611, 2012 CarswellNat 1553, 2012 CarswellNat 4050, 2012 CF 611 (F.C.) — referred to 328 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

Racz v. Canada (Minister of Citizenship & Immigration) (2012), 2012 Car- swellNat 1149, 2012 FC 436, 2012 CarswellNat 1733, 2012 CF 436 (F.C.) — considered Samuel v. Canada (Minister of Citizenship & Immigration) (2008), 2008 CF 762, 2008 CarswellNat 2807, 2008 FC 762, 2008 CarswellNat 1969, [2008] F.C.J. No. 963 (F.C.) — referred to Ward v. Canada (Minister of Employment & Immigration) (1993), (sub nom. Canada (Attorney General) v. Ward) 103 D.L.R. (4th) 1, (sub nom. Canada (Attorney General) v. Ward) 153 N.R. 321, 20 Imm. L.R. (2d) 85, 1993 Car- swellNat 90, 1993 CarswellNat 1382, [1997] I.N.L.R. 42, (sub nom. Canada (Attorney General) v. Ward) [1993] 2 S.C.R. 689, [1993] S.C.J. No. 74, EYB 1993-67292 (S.C.C.) — considered Statutes considered: Federal Courts Act, R.S.C. 1985, c. F-7 s. 18.1(4) [en. 1990, c. 8, s. 5] — referred to Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 72(1) — pursuant to s. 96 — considered s. 96 “r´efugi´e” — referred to s. 97 — considered s. 97(1) — referred to

APPLICATION for judicial review of decision of Refugee Protection Division of Immigration and Refugee Board.

Mieszko Wlodarczyk, for Applicants Meva Motwani, for Respondent

Cecily Y. Strickland J.:

1 This is an application for judicial review of a decision of the Refugee Protection Division (RPD) of the Immigration and Refugee Board of Canada. The RPD determined that the Applicants are not Convention ref- ugees and are not persons in need of protection pursuant to section 96 and 97, respectively, of the Immigration and Refugee Protection Act, SC 2001, c 27 (the IRPA). This application is brought pursuant to subsection 72(1) of the IRPA.

Background 2 The Applicants are citizens of Hungary of Roma ethnicity. They are Csaba Beri, his wife Piroska Korbely and their children Virginia Beri, Beri v. Canada (MCI) Cecily Y. Strickland J. 329

Kevin Beri and Csaba Martin Beri. They claim to fear persecution in Hungary from racist Hungarians, including skinheads, the Hungarian Guard and the Jobbik Party. 3 The Applicants described discrimination and persecution to which they and their extended family were exposed throughout their lives in Hungary. They fled and arrived at the Lester B. Pearson Airport in To- ronto on November 7, 2010, claiming refugee protection the same day. 4 The RPD found that the Applicants are not Convention refugees pur- suant to section 96, and are not persons in need of protection pursuant to section 97 of the IRPA (the Decision). That Decision is the subject of this judicial review.

Decision Under Review 5 The RPD acknowledged the documentary evidence confirming that violent attacks against Roma continue and that Roma are discriminated against in almost all fields of life in Hungary. Accordingly, and taking into account the particular circumstances relating to the Applicants’ claim, the RPD found that state protection was the determinative issue before it. 6 The RPD stated that the Applicants have the legal burden of rebutting the presumption that adequate state protection exists by adducing clear and convincing evidence which satisfies the RPD, on a balance of probabilities, that the state cannot protect its citizens. 7 The RPD considered that Csaba Beri was assaulted on several occa- sions. Csaba Berri stated that he did not report a 2001 assault to the po- lice because he did not know the names of his attackers and thought the police would not do anything about the incident. In May of 2008, Csaba Beri was again assaulted while looking for a job. He asked a security guard to help him but was told to go home. He did not report this to the police because he was afraid of them and did not believe they would assist him either. The RPD also noted that in July 2009, Csaba Beri was violently forced out of a caf´e because he was a “gypsy”. He did not re- port this incident to police as he feared the police and did not believe they would be of assistance, but thought that they would instead humili- ate him. 8 The RPD also considered that the child, Csaba Martin Beri, was at- tacked by skinheads in the summer of 2009. While the police were nearby, they did not prevent the incident. The Applicants did not report the incident to the police for the same reasons as set out above. 330 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

9 The RPD noted that in March of 2010, Csaba Beri and his wife, Piroska Korbely, were assaulted and that medical care was required for Ms. Korbely. Csaba Beri attended at the police station and, although the police were not courteous, they allowed him to file a report. Upon return some time later to follow up on the incident, the police informed him that they would be closing the case as they were unable to identify the assailants. 10 The RPD considered that Csaba Beri had approached the Roma Mi- nority Government (RMG) in search of assistance for the discrimination targeted against his child at school. The RMG ineffectively attempted to address the problem and advised that it had contacted the police in other cases with no results. The RMG was only able to hear the complaints filed and confirm racism. 11 The RPD noted that the Applicants did not attempt to elevate their complaints to a higher authority in spite of being dissatisfied by police actions. The RPD noted that the Applicants had not heard of the Roma Police Association or the Independent Police Complaints Board. It also considered that the Applicants were aware of, but had not approached, the Ombudsman for Minority Rights, as they did not know what its role was. 12 The RPD was not satisfied that the Applicants had rebutted the pre- sumption of state protection. There was insufficient information to sug- gest that the police were not making genuine and earnest efforts to inves- tigate Csaba Beri’s allegations and apprehend the perpetrator. The RPD also did not find Csaba Beri’s response regarding the effectiveness of state protection to be persuasive. It preferred the documentary evidence to the Applicants’ testimony. 13 Relying on the documentary evidence, the RPD also found that Hun- gary candidly acknowledges its past problems and is making serious ef- forts through several measures to rectify the treatment of minorities, es- pecially in the case of the Roma. The RPD also found that despite reports of police corruption, several sources demonstrated that Hungary re- sponds to complaints that are made. Furthermore, if the Applicants faced discrimination, they could access the Equal Treatment Authority, seek compensation through the courts or file complaints with the Roma Police Officers’ Association. 14 The RPD noted that Hungary faces criticism of the measures it has used to implement the laws it has enacted to address discrimination and persecution and combat racism, particularly against the Romani people. Beri v. Canada (MCI) Cecily Y. Strickland J. 331

However, it was important to note that Hungary is a part of the European Union (EU), and therefore it is responsible for upholding various stan- dards to maintain its EU membership. Therefore, the RPD found that, on the balance of probabilities, Hungary is taking measures to implement the standards that are so mandated. 15 The RPD concluded that, on the totality of the evidence, the Appli- cants failed to rebut the presumption of state protection and that the Ap- plicants had not taken all reasonable steps to avail themselves of that protection before making a refugee claim. The RPD was not convinced that protection would not be forthcoming if sought. There was insuffi- cient persuasive evidence that there is a serious possibility that the Appli- cants would face persecution pursuant to section 96 or, on balance of probabilities, face a risk to their lives or to cruel and unusual punishment of a danger of torture pursuant to section 97 if they were returned to Hungary.

Issues 16 The Applicants submit that the RPD erred in law or fact in determin- ing that they are not Convention refugees or persons in need of protec- tion by: a. failing to reasonably assess the evidence as a whole and not hav- ing regard for the totality of the evidence; b. misinterpreting the issue of persecution and failing to assess the cumulative nature of the acts of discrimination and violence suf- fered by the Applicants in the aggregate; and c. erring in its assessment of state protection. 17 It is clear from the RPD’s Decision that the determinative issue was state protection. As there is no specific discussion regarding persecution or risk, it can be assumed that the RPD conceded this component of the analysis. Accordingly, in my view, the issue here is whether the RPD’s determination that state protection was available in Hungary was reason- able having regard to all the evidence before it.

Standard of Review 18 The Supreme Court of Canada in New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9, [2008] 1 S.C.R. 190 (S.C.C.) [Dunsmuir] at para 57 held that a standard of review analysis need not be conducted in every instance. Instead, where the standard of review appli- cable to a particular question before the court is well-settled by past juris- 332 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

prudence, the reviewing court may adopt that standard. (Dunsmuir, above; Kisana v. Canada (Minister of Citizenship & Immigration), 2009 FCA 189 (F.C.A.) [Kisana] at para 18). 19 This Court has confirmed that determinations of state protection are reviewable on a reasonableness standard (Hinzman, Re, 2007 FCA 171 (F.C.A.) at para 38; Ortega v. Canada (Minister of Citizenship & Immi- gration), 2012 FC 611 (F.C.) at para 7; Mendez v. Canada (Minister of Citizenship & Immigration), 2008 FC 584, [2008] F.C.J. No. 771 (F.C.) at paras 11-13). Accordingly, reasonableness is the applicable standard of review in the present case.

Analysis Applicants’ Position 20 The Applicants submit that because the RPD did not make a negative credibility finding, their allegations should be accepted as fact. While the RPD acknowledged that Roma suffer discrimination in almost all facets of life, it failed to assess the issue of persecution separately. This leads to the presumption that it accepted that the Applicants were persecuted in Hungary. 21 The Applicants also argue that the RPD was required to consider the cumulative nature of the incidents of harm and discriminatory incidents suffered by the Applicants to determine if it constitutes a well founded fear of persecution. If it did not, the RPD was required to explain why it did not amount to persecution. 22 Regarding state protection, the Applicants submit that the Board had evidence that the Applicants did seek police protection and made some twenty or more reports to the Roma Minority Government. 23 The Applicants also argue that the RPD erred in its analysis by dis- counting uncontradicted evidence that supported their testimony and pre- ferring the documentary evidence. The Applicants presented evidence of a specific and general lack of adequate state protection in Hungary which the RPD disregarded. The Applicants submit that the RPD also failed to assess the “operational adequacy” of Hungary’s efforts to address dis- crimination and persecution of Hungarian Roma. Therefore, the RPD stopped short of a full assessment of the claims. The Applicants provide a lengthy review of the case law that they consider to support this position. Beri v. Canada (MCI) Cecily Y. Strickland J. 333

Respondent’s Position 24 The Respondent submits that the RPD’s Decision was reasonable for three reasons. First, the evidence of the discrimination faced by the Ap- plicants did not rise to the level of persecution. Second, the Applicants did not make reasonable efforts to seek protection. Finally, the documen- tary evidence demonstrated that state efforts to protect the Roma were yielding results. 25 The RPD assessed the totality of the evidence, and while doing so, it was entitled to prefer the documentary evidence over the Applicants’ tes- timonies, even in the absence of an adverse credibility finding. The Re- spondent argues that the Applicants are simply asking this Court to re- weigh the evidence. 26 The Respondent submits that even if the RPD had found that the Ap- plicants had suffered persecution, this does not establish future persecu- tion. The Respondent acknowledges that evidence that in and of itself does not constitute persecution, but forms a pattern of persecution, can- not be ignored. However, it submits that the Applicants have failed to demonstrate that the RPD ignored such evidence of persecution because the RPD referred to the discriminatory practices against all family mem- bers at school and in regard to access to clubs, jobs and public venues. The RPD clearly noted that any discriminatory acts did not constitute a well founded fear of persecution because the Applicants have recourse to state protection. 27 The Respondent submits that the RPD’s state protection findings were reasonable. The onus of rebutting the presumption of state protec- tion lies with the Applicants and they failed to satisfy this onus. Further- more, requiring state protection to be effective is an unattainable stan- dard and the proper test for state protection is whether it is adequate. 28 The RPD reviewed the Applicant’s evidence regarding state protec- tion together with the documentary evidence including the contradictory evidence. The RPD’s reasons demonstrate that it referred to the efforts being made by the state, but also considered the results of those efforts. 29 Furthermore, in order to rebut the presumption of state protection, the Applicants must convince the RPD that they approached the state for protection where such protection might reasonably be forthcoming. In several instances, the Applicants did not make police reports and there was insufficient information to suggest that the police were not genuinely investigating the allegations and attempting to apprehend assailants. 334 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

30 The Respondent submits that the Applicants’ subjective reluctance to seek state protection is insufficient to rebut the presumption of state pro- tection as are unsuccessful attempts at police protection. State protection can also be available from state-run or state-funded agencies.

Analysis 31 The RPD found that the determinative issue in the Applicants’ claim was the availability of state protection. There were no issues of credibil- ity as is confirmed by the transcript of the hearing before the RPD. When Applicants’ counsel raised the issue of credibility, the RPD responded that: “I’m going to stop you there Counsel, because I think your client was very credible”. 32 The Respondent argues that requiring state protection to be effective is an unattainable standard and the proper test is whether state protection is adequate. In that regard it relies on Samuel v. Canada (Minister of Citizenship & Immigration), 2008 FC 762 (F.C.) [Samuel] at paras 10 and 13; Mendez v. Canada (Minister of Citizenship & Immigration), 2008 FC 584 (F.C.) [Mendez] at para 23; Flores v. Canada (Minister of Citizenship & Immigration), 2008 FC 723 (F.C.) [Suarez] at paras 9-11; Kis v. Canada (Minister of Citizenship & Immigration), 2012 FC 606 (F.C.) [Kis]; Molnar v. Canada (Minister of Citizenship & Immigration), 2012 FC 530 (F.C.) [Molnar]; Racz v. Canada (Minister of Citizenship & Immigration), 2012 FC 436 (F.C.) [Racz]; Horvath v. Canada (Minister of Citizenship & Immigration), 2012 FC 253 (F.C.) [Horvath]; Balogh v. Canada (Minister of Citizenship & Immigration), 2012 FC 216 (F.C.) [Balough]. 33 Neither Racz, above nor Balogh, above, concerned the operational ef- fectiveness of state protection in Hungary. In Kis, above, Justice Near found that the appropriate test for state protection is adequacy and not effectiveness per se. 34 It is perhaps helpful to clarify the principles of state protection which apply to the present case. These principles were previously set out in Ward v. Canada (Minister of Employment & Immigration), [1993] 2 S.C.R. 689 (S.C.C.) [Ward] and Carrillo v. Canada (Minister of Citizenship & Immigration), 2008 FCA 94, [2008] F.C.J. No. 399 (F.C.A.) [Carillo] and hold that a claimant “must adduce relevant, relia- ble and convincing evidence which satisfies the trier of fact on a balance of probabilities that the state protection is inadequate” (Carrillo, above at para 30). Beri v. Canada (MCI) Cecily Y. Strickland J. 335

35 State protection need not be perfect, but it must be adequate, and “only in situations in which state protection ‘might reasonably have been forthcoming’ will the claimant’s failure to approach the state for protec- tion defeat his claim” (Ward, above, at para 49; Da Souza v. Canada (Minister of Citizenship & Immigration), 2010 FC 1279 (F.C.) [Da Souza] at paras, 15, 18). Adequate state protection involves more than making “serious efforts” to address problems and protect citizens (Garcia v. Canada (Minister of Citizenship & Immigration), 2007 FC 79, [2007] 4 F.C.R. 385 (F.C.)). 36 Instead, the focus of the RPD must be on what is actually happening in a country, that is, evidence of actual or operational level protection, and not on efforts that a state is endeavouring to put in place. As stated in Hercegi v. Canada (Minister of Citizenship & Immigration), 2012 FC 250 (F.C.) at para 5 [Hercegi], regarding the Hungarian Roma applicants in that case: [5] [...] It is not enough to say that steps are being taken that some day may result in adequate state protection. It is what state protection is actually provided at the present time that is relevant. In the present case, the evidence is overwhelming that Hungary is unable presently to provide adequate protection to its Roma citizens. I repeat what I wrote in Lopez v Canada (Minister of Citizenship and Immigration), 2010 FC 1176 (CanLII), 2010 FC 1176 at paragraphs 8 to 11: 8 Another error of law is with respect to what is the nature of state protection that is to be considered. Here the Mem- ber found that Mexico “is making serious and genuine ef- forts” to address the problem. That is not the test. What must be considered is the actual effectiveness of the pro- tection. [...] 37 The finding in Hercegi, above, has been echoed in many other cases including Majoros v. Canada (Minister of Citizenship and Immigration), 2013 FC 421 (F.C.) at para 12; Gulyas v. Canada (Minister of Citizenship and Immigration), 2013 FC 254 (F.C.) at para 81; Orgona v. Canada (Minister of Citizenship and Immigration), 2012 FC 1438 (F.C.) at paras 11-12; Flores Alcazar v. Canada (Minister of Citizenship & Immigration), 2011 FC 173 (F.C.); Jaroslav v. Canada (Minister of Citizenship & Immigration), 2011 FC 634 (F.C.) at para 75; Beharry v. Canada (Minister of Citizenship & Immigration), 2011 FC 111 (F.C.) at para 9; Meza Varela v. Canada (Minister of Citizenship & Immigration), 2011 FC 1364 (F.C.) at para 16; and Bautista v. Canada (Minister of Citizenship & Immigration), 2010 FC 126 (F.C.) at paras 8-15. 336 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

38 It has also been recognized by this Court that the situation in Hungary is a difficult one. As Justice Russell states in Molnar, above, in a country such as Hungary where there are obvious and clearly recognized human rights abuses, a state protection analysis is not easy: [105] The Hungarian situation is very difficult to gauge. Much will depend upon the facts and evidence adduced in each case, and on whether the RPD goes about the analysis in a reasonable way. Where it does, it is my view that it is not for this Court to interfere even if I might come to a different conclusion myself. It is my view that a reasonable analysis was conducted in this case that was alive to the governing principles and that applied them to the facts on the record in a responsive way. On this basis, I cannot interfere with the Decision. 39 In Molnar, above, Justice Russell rejected the claim that the RPD only considered Hungary’s efforts to protect without regard for the oper- ational adequacy of state protection. However, that case may be distin- guished from the present matter as, while not materially affecting the state protection analysis, there the applicants’ credibility was questioned and the RPD thoroughly considered state protection based on the record it had before it. 40 In Horvath, above, at para 16, cited by the Respondent, Justice Ren- nie found that the case before him was not one where the RPD “made generalizations about the country without considering the specific evi- dence before it, nor did it refer only to efforts or good intentions without considering implementation and actual results.” Based on the evidence before the RPD, it reasonably found that state protection was available to the applicants. However, Justice Rennie qualified this finding by stating: [18] In reaching this conclusion I do not detract from the observa- tions of my colleague, Justice Michel Shore, in Kovacs, at paragraph 66, wherein he noted: Thus, it cannot be sufficient to show the changes and im- provements in the Hungarian state, including a number of options for recourse and the possibility to obtain state pro- tection. It still remains to be proven that the changes have been effectively implemented in practice. Proof of the state’s willingness to improve and its progress should not be, for the decision-maker, a decisive indication that the potential measures amount to effective protection in the country under consideration. As the case law above shows, willingness, as sincere as it may be, does not amount to action. Beri v. Canada (MCI) Cecily Y. Strickland J. 337

41 In this case, the RPD acknowledged that violent attacks against the Roma continue and that the Roma are discriminated against in almost all fields of life citing the United States, 8 April 2011, Department of State. “Hungary.” Country Reports on Human Rights Practices for 2010 (the 2010 US Country Report). The RPD states that, “Hungary candidly ac- knowledges its past problems and is making serious efforts to rectify the treatment of minorities in that country, especially in the case of the Roma”. The RPD further states that: The Board recognizes that there are some inconsistencies among sev- eral sources within the documentary evidence; however, the prepon- derance of the objective evidence regarding current country condi- tions suggest that, although not perfect, there is an adequate state protection in Hungary for Roma who are the victims of crime, police abuse, discrimination or persecution, that Hungary is making serious efforts to address these problems, and that the police and government officials are both willing and able to protect victims. 42 In canvassing the documentary evidence, the RPD states that the “Hungarian government has taken a number of legal and institutional measures to improve the situation of the Romani minority”. While the RPD notes the criticisms facing the implementation of Hungarian laws enacted to address the discrimination and persecution of its minorities, particularly the Romani, it also states that the government is making ef- forts to “specifically address issues faced by the Roma population...” 43 Regarding specific measures which are in place in Hungary, the RPD noted the following: • In 2008, the extreme nationalist Hungarian Guard was ordered dissolved, which was upheld by the country’s Supreme Court later that year; • Roma, like the other official minorities, are entitled to elect their own minority self governments which organize minority activities and handle cultural and educational affairs, and the president of the minority self government has the right to speak at local gov- ernment assemblies; • While there are reports of police corruption, and the use of exces- sive force against Roma, the state takes action when complaints are made. • The Independent Police Complaints Board (IPCB) began opera- tion in 2008. While this body is set up to independently review complaints of police actions which violate fundamental rights and 338 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

make recommendations to the head of the National Police, there is criticism that the police follow up on only a small portion of the IPCB’s recommendations; • In the first 10 months of 2009, over 4000 police officers were found responsible for breaches of discipline, petty offences, crimi- nal offences, or were unfit duty. During the same period almost 390 officers were sentenced by the courts to prison terms, sus- pended sentences, fines, demotions or dismissals; • The IPCB investigated violations and omissions by the police that affected fundamental human rights, and found 157 violations which it forwarded to the police chief, who agreed with the find- ing of the IPCB in one case, partially accepted the findings in 27, and rejected the remainder (2010 US Country Report); • The Parliamentary Commissioner for National and Ethnic Minor- ity Rights took complaints from any person that felt his or her minority rights were violated as a result of a government agency’s actions. The evidence also indicated many other similar initiatives undertaken by the Hungarian government to address the problem of corruption within the police forces; • Police still do commit abuse against the Roma, but there is also evidence that indicates it is reasonable to expect authorities to take action in those cases (no reference to supporting documentary evidence); • There is recourse to the Equal Treatment Authority, which has provided individuals with a direct avenue of redress for violations of the prohibition of discrimination in a variety of public and pri- vate law relationships since 2005; • There are remedies such as seeking compensation through the courts, or turning to one of the Parliamentary Commissioners (Council of Europe 24 February 2009, European Commission Against Racism and Intolerance (ECRI). ECRI Report on Hun- gary (Fourth Monitoring Cycle); Response to Information Request HUN103232.E, 15 October 2009) or the Roma Police Officers’ Association. Complaints filed with the latter generally deal with discrimination in employment, discriminatory treatment and dis- crimination by law enforcement authorities or police officers (Re- sponse to Information Request HUN103091.E 21 April 2009); Beri v. Canada (MCI) Cecily Y. Strickland J. 339

• Hungary has one of the most advanced systems for minority pro- tection in the region, and has taken a number of initiatives relating to the situation of the Roma, including education, employment, housing, health and political representation (Societe Institute; Re- sponse to Information Request HUN103232.F 6 October 2009 and HUN103267.F 16 October 2009); • The government had made a number of efforts to specifically ad- dress issues faced by the Roma population (2010 US Country Re- port April 8, 2011); • Hungary is part of the European Union, and thus responsible for upholding a number of various standards to maintain its membership; 44 In my view, the RPD’s Decision as regards to state protection is more descriptive in nature than it is analytical. That is, it describes state efforts intended to address discrimination, persecution and protection of the Roma but undertakes no real analysis of the operational adequacy or suc- cess of those efforts. As stated by Justice Mosley in Meza Varela v. Canada (Minister of Citizenship & Immigration), 2011 FC 1364, [2011] F.C.J. No. 1663 (F.C.) [EYMV]: [16] The Board did not provide any analysis of the operational ade- quacy of the efforts undertaken by the government of Honduras and international actors to improve state protection in Honduras. While the state’s efforts are indeed relevant to an assessment of state pro- tection, they are neither determinative nor sufficient (Jaroslav v. Canada (Minister of Citizenship and Immigration), 2011 FC 634, [2011] F.C.J. No. 816 at para 75). Any efforts must have “actually translated into adequate state protection” at the operational level (Beharry v. Canada (Minister of Citizenship and Immigration), 2011 FC 111 at para 9. 45 In Kemenczei v. Canada (Minister of Citizenship and Immigration), 2012 FC 1349 (F.C.) [Kemenczei] at para 57, Justice Russell states the following about the RPD’s failure to address the operational adequacy of mechanisms in place to protect the Roma population in Hungary: [57] In my view, this analysis runs counter to what the RPD is obliged to do. The analysis is about a legislative and procedural framework (steps) that the government of Hungary has attempted to implement. It is not about the operational adequacy of those steps. 46 The RPD’s analysis is also similar to the situation in Moczo v. Canada (Minister of Citizenship and Immigration), 2013 FC 734 (F.C.) 340 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

[Moczo]. In Moczo, the RPD dismissed the applicants’ claim based on its conclusion that state protection is available to the Roma community in Hungary. Justice O’Reilly stated the following at para 10: [10] With regard to the documentary evidence, the Board concen- trated on descriptions of the state’s efforts to improve the situation in Hungary and the activities of non-state actors to help. However, evi- dence of a state’s efforts does not help answer the main question that arises in cases of state protection — that is, looking at the evidence as a whole, including the evidence relating to the state’s capacity to protect its citizens, has the claimant shown that he or she likely faces a reasonable chance of persecution in the country of origin? To an- swer that question, the Board had to decide whether the evidence re- lating to the state resources actually available to the applicants indi- cated that they would probably not encounter a reasonable chance of persecution if they returned to Hungary (see Muvangua v Canada (Minister of Citizenship and Immigration), 2013 FC 542 (CanLII), 2013 FC 542, at paras 7, 9). 47 In Orgona v. Canada (Minister of Citizenship and Immigration), 2012 FC 1438 (F.C.) at para 11 [Orgona], Justice Zinn makes the follow- ing finding which is directly relevant to the circumstances before this Court: [11] Actions, not good intentions, prove that protection from perse- cution is available. See the following on this point among the many, many decisions of this Court involving state protection in Hungary: Balogh v Canada (Minister of Citizenship and Immigration), 2002 FCT 809 (CanLII), 2002 FCT 809, at para 37; Kovacs v Canada (Minister of Citizenship and Immigration), 2010 FC 1003 (CanLII), 2010 FC 1003, at para 70; Bors v Canada (Minister of Citizenship and Immigration), 2010 FC 1004 (CanLII), 2010 FC 1004, at para 63; Hercegi v Canada (Minister of Citizenship and Immigration), 2012 FC 250 (CanLII), 2012 FC 250, at para 5; Kanto v Canada (Minister of Citizenship and Immigration), 2012 FC 1049 (CanLII), 2012 FC 1049, at para 40; Sebok v Canada (Minister of Citizenship and Immigration), 2012 FC 1107 (CanLII), 2012 FC 1107, at para 22; Katinszki v Canada (Minister of Citizenship and Immigration), 2012 FC 1326 (CanLII), 2012 FC 1326, at para 17; Kemenczei v Canada (Minister of Citizenship and Immigration), 2012 FC 1349 (CanLII), 2012 FC 1349, at paras 57 - 60. 48 In the present case, the RPD states that it prefers the “documentary evidence over the [Applicants’] testimony since it is drawn from a wide range of publically [sic] accessible documents, from reliable nongovern- Beri v. Canada (MCI) Cecily Y. Strickland J. 341

mental and government organizations.” However, with regard to the doc- umentary evidence, the RPD concentrated on the state’s efforts to im- prove the situation in Hungary and the activities of non-state actors to help. It failed to look at the operational adequacy of those measures simi- lar to some of the jurisprudence cited above (Orgona, Moczo, Kemenczei, Meza Varela, all above). 49 For example, the 2010 US Country Report, above, states that, “Human rights NGOs complained that law enforcement authorities, pros- ecutors, and courts were reluctant to recognize racial motivation for many crimes”. In addition, the 2009 Country Report indicates that the Hungarian Government has not implemented laws against official cor- ruption effectively, and that corruption in the executive and legislative branches of government reportedly increased during 2009. 50 The 2010 US Country Report also indicates that, “Violent attacks against Roma continued, generating strong public concern and intense disputes as to the existence and scale of racially motivated crimes...” In addition, “Roma were detained and subjected to racial profiling more fre- quently than non-Roma”. The report states that according to the Hun- garian Civil Liberties Union (HCLU), “police and municipalities selec- tively applied laws against the Romani community to keep Roma segregated and to restrict their free movement” (page 34 report/page 190 record). Furthermore, “Human rights NGOs reported that Roma were discriminated against in almost all fields of life, particularly in employ- ment, education, housing, penal institutions, and access to public places, such as restaurants and bars.” Also, the Hungarian Civil Liberties Union (HCLU), “asserted that police and municipalities selectively applied laws against the Romani community to keep Roma segregated and to restrict their free movement.” 51 In addition, the Council of Europe. 24 February 2009. European Commission against Racism and Intolerance (ECRI). ECRI Report on Hungary (Fourth Monitoring Cycle) states that, “A particularly alarming development has occurred in Hungary since ECRI’s third report, in the form of a sharp rise in racism in public discourse”. The ECRI also notes that “incidents of police brutality towards Roma continue to be re- ported.” The Romas in Hungary continue to face racist violence, racism in public disclosure, as well as racially motivated crimes. 342 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

52 The ECRI also makes several recommendations which largely con- cern the lack of monitoring of compliance with legislation and measures as well as implementing those measures. The ECRI states: ECRI reiterates its recommendation that ways of measuring the situa- tion of minority groups in different fields of life be identified, stressing that such monitoring is crucial in assessing the impact and success of policies put in place to improve the situation... 52 The ECRI also refers to NGO’s which emphasize that: [...] a rarity of reports of racists violence is not in itself an indication that such acts are not committed, as victims of such acts may often be reluctant to come forward at all or to report the racist elements of violence offences against the person, whether owing to a sense of shame, due to fear of retribution, or because they feel it is unlikely that serious follow-up will be given to this aspect of a crime. 53 In addition, Amnesty International has expressed concerns that “Hun- garian authorities are failing to take necessary steps to prevent and re- spond to violence against Roma effectively due to shortcomings and gaps in the criminal justice system (November 2010. Violent Attacks Against Roma in Hungary. (EUR 27/0010/2010) [Amnesty International Re- port]). In addition, the Amnesty International Report states that, “The provisions on hate crimes that exist are not being thoroughly implemented...” 54 Further, the European Roma Rights Centre states the following: [...] discrimination pervades all aspects of life for Roma in Hungary, most egregiously in the fields of education, housing and access to public services. The Government has failed to prevent, prohibit and eradicate practices of racial segregation in education and housing. Legal prohibition and other legal administrative measures against ra- cial discrimination have to date been ineffective in prohibiting and bringing to an end racial discrimination against Roma in Hungary. Moreover, there is no available statistical data concerning race and ethnicity, which hinders the exposure and tackling of discrimination on these grounds (European Roma Rights Centre, Chance for Chil- dren Foundation and the Hungarian Helsinki Committee Concerning Hungary (For Consideration by the United Nations Committee at its 98th Session)). Beri v. Canada (MCI) Cecily Y. Strickland J. 343

55 With respect to the RPD’s finding that the claimants did not take all reasonable steps to seek protection, the following paragraph of Justice Zinn’s from Majoros, above, applies to the present situation: [20] As I stated above, what the Board fails to address is the ques- tion: how would state protection be more forthcoming if the appli- cants had followed up with, e.g., the Minorities Ombudsman’s Of- fice? Would they be any safer or any more protected? Again, instead of treating the applicants’ interactions with the police as having evi- dentiary relevance to the legal issue — Is state protection availa- ble? — the Board treated the applicants’ (in its view) inadequate ef- forts in relation to the police as a disqualifier for refugee protection. To repeat: that was an error. 56 Similarly in this case, the RPD concluded that the Applicants failed to rebut the presumption of state protection, in part, because they had not sought it. However, the evidence indicates that the Applicants made one police report and, in response to a follow up inquiry from the Applicants, the police advised that they were closing the case as they had not been able to identify the assailants. This does not support the RPD finding that there was insufficient evidence to suggest that the police were not mak- ing genuine and earnest efforts to investigate the allegations and appre- hend the perpetrators. Further, “where protection is not likely to be forth- coming, there is no requirement to seek it” (Ward, above). 57 As to the suggestion that the Applicants had not attempted to elevate their complaints, it is of note that the Roma Police Association, referred to in this context by the RPD, is described in the country conditions re- ports as an agency primarily concerned with assisting its police mem- bers. Similarly, as indicated by the RPD, the Equal Treatment Authority is concerned primarily with discrimination in public and private law rela- tionships. The RPD also noted the presence of the Parliamentary Com- mission for National and Ethnic Minority Rights which can be sought for compensation. However, as stated in Majoros, above, it is difficult to see how state protection would be any more forthcoming or effective had the Applicants redirected their complaints to such agencies. Indeed, the Ap- plicants reported making over twenty complains to the RMG with respect to discrimination experienced by their child at school. This was ineffec- tive and did not serve to make state protection any more available. 58 As to the Independent Police Complaints Board (the IPCB), the RPD stated that this body was set up to independently review complaints of police actions which violate fundamental rights and to make recommen- dations to the head of the National Police. However, as acknowledged by 344 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

the RPD, there is criticism that the police follow up only on a small por- tion of the complaints. In addition, the country reports indicate that the IPCB’s investigative rights are “insufficient” and are usually limited to the complaint and the file of the case as submitted by the police, making it difficult for the IPCB to reconstruct the facts (Hungarian Helsinki Committee (HHC). 21 September 2009. Krisztina Fodor Lukacs, Andras Kadar and Judit Kovac Zsolt Kortvelyesi. GusztaNagy. Evaluating a Year and a Half. The Most Important Problems Emerged in the Practice of the Independent Police Complaints Board of Hungary). 59 In summary, the RPD erred in its state protection analysis by focusing almost exclusively on the efforts being made by the Hungarian govern- ment to curb persecution against the Roma, while conducting little or no analysis of the operational effectiveness of those measures. The RPD also focused on the Applicants’ alleged failure to seek out protection from alternate authorities without regard to the “practical significance of that reporting to the real issue of state protection” similar to the situation in Majoros, above, at para 21. Accordingly, based on the evidence before me, the RPD’s Decision is unreasonable and must be set aside.

Judgment THIS COURT’S JUDGMENT is that this application for judicial re- view is allowed, the RPD’s decision is set aside and the matter is remit- ted back for re-determination by a differently constituted panel of the RPD. No question of general importance for certification has been pro- posed and none arises. Application granted.

Annex

The following provision of the Federal Courts Act, RSC 1985 c F-7 is relevant to this proceeding: 18.1 [...] (4) The Federal Court may grant relief under subsection (3) if it is satisfied that the federal board, commission or other tribunal (a) acted without jurisdiction, acted beyond its jurisdiction or re- fused to exercise its jurisdiction; (b) failed to observe a principle of natural justice, procedural fair- ness or other procedure that it was required by law to observe; Beri v. Canada (MCI) Cecily Y. Strickland J. 345

(c) erred in law in making a decision or an order, whether or not the error appears on the face of the record; (d) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it; (e) acted, or failed to act, by reason of fraud or perjured evi- dence; or (f) acted in any other way that was contrary to law. The following provisions of the Immigration and Refugee Protection Act, SC 2001, c 27 are relevant to this proceeding: 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. 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 resi- dence, would subject them personally (a) to a danger, believed on substantial grounds to exist, of tor- ture 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 indi- viduals in or from that country, (iii) the risk is not inherent or incidental to lawful sanc- tions, unless imposed in disregard of accepted interna- tional standards, and (iv) the risk is not caused by the inability of that country to provide adequate health or medical care.