IMMIGRATION LAW REPORTER Fourth Series/Quatri`Eme S´Erie Recueil De Jurisprudence En Droit De L’Immigration VOLUME 11 (Cited 11 Imm

IMMIGRATION LAW REPORTER Fourth Series/Quatri`eme s´erie Recueil de jurisprudence en droit de l’immigration VOLUME 11 (Cited 11 Imm. L.R. (4th))

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[Indexed as: R. v. Pham] Her Majesty the Queen (Respondent) and Hoang Anh Pham (Appellant) and Thai Quoc Ly (Not a Party on Appeal) Alberta Court of Appeal Docket: Calgary Appeal 1101-0206-A 2012 ABCA 203 Peter Martin, Jack Watson, J.D. Bruce McDonald JJ.A. Heard: May 23, 2012 Judgment: June 28, 2012 Criminal law –––– Narcotic and drug control — Offences — Production under Controlled Drugs and Substances Act — Sentencing –––– Adult offenders — Impact of loss of immigration appeal — Accused with record of offences — Accused, male with previous record of offences including previous convictions for trafficking in controlled substance and possession of controlled substance for purpose of trafficking, was convicted on charges of cultivation of marijuana and possession of marijuana for purpose of trafficking — Accused was in control of large-scale marijuana “grow-op”, containing 591 plants valued at some $738,750 on ounce-sale basis — Accused, non-citizen, was made subject to deportation order — Accused was sentenced to two-year term of imprisonment, which sentence barred accused from appeal of deportation order — Ac- cused appealed from sentence on basis that loss of immigration appellate rights was unintended consequence of sentence — Appeal dismissed — While Crown consented to appeal, accused had lost benefit of right of consideration of immigration consequences in present case — This was so because of accused’s previous criminal record, particularly previous drug convictions — As principle accused was previous record of offences should not have sentence reduced to avoid impact of unintended immigration consequences, and appeal was accordingly properly dismissed. Criminal law –––– Narcotic and drug control — Offences — Possession for purpose of trafficking — Sentencing –––– Adult offenders — Impact of loss of immigration appeal — Accused with record of offences — Accused, male with previous record of offences including previous convictions for trafficking in 2 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th) controlled substance and possession of controlled substance for purpose of trafficking, was convicted on charges of cultivation of marijuana and possession of marijuana for purpose of trafficking — Accused was in control of large-scale marijuana “grow-op”, containing 591 plants valued at some $738,750 on ounce- sale basis — Accused, non-citizen, was made subject to deportation order — Accused was sentenced to two-year term of imprisonment, which sentence barred accused from appeal of deportation order — Accused appealed from sentence on basis that loss of immigration appellate rights was unintended consequence of sentence — Appeal dismissed — While Crown consented to appeal, accused had lost benefit of right of consideration of immigration consequences in present case — This was so because of accused’s previous criminal record, particularly previous drug convictions — As principle accused was previous record of offences should not have sentence reduced to avoid impact of unintended immigration consequences, and appeal was accordingly properly dismissed. The accused, a male non-citizen with a previous record of offences including two past drug-related convictions, was convicted on charges of cultivation of marijuana and possession of marijuana for purpose of trafficking. The accused was running a commercial marijauna “grow-op” containing 591 plants at three distinct stages of development. Sold wholesale by the pound, the estimated value of the marijauna was $461,718; sold retail by the ounce, at $738,750. The accused was made subject to a deportation order issued pursuant to the Im- migration and Refugee Protection Act. According to the provisions of that Act, an accused who receives a sentence of two years or more upon conviction for a criminal offence may not appeal from a deportation order. The accused was sentenced, without reference to the deportation order, to a two- year term of imprisonment. The accused appealed from sentence, seeking a one- day reduction in the sentence imposed by the trial judge to entitle the accused to appeal from the deportation order. The Crown conceded that that appeal should be allowed on the basis that the loss of appeal from the deportation order was unintended. Held: The appeal was dismissed. Per J.D. Bruce McDonald J.A. (Jack Watson J.A. concurring): The sentence imposed was fit for the offences charged in the circumstances of the accused, so but for the deportation issue the appeal was without merit. The facts of the present case were distinct from those in the judgment of the Ontario Court of Appeal in R. v. Hamilton. In R. v. Hamilton, significantly, the impoverished non-citizen accuseds had no previous record of offences. In the present case, however, the accused not only had a previous record of offences but in fact a previous conviction for drug trafficking. R. v. Hamilton was accordingly properly distinguished. The accused in the present case was not entitled to R. v. Pham 3

the benefit of discretionary relief from the unintended consequences of the sentence imposed, and the appeal was accordingly properly dismissed. Per Peter Martin J.A. (dissenting): The reasons of the majority were agreed with that persons with previous criminal records sentenced to penitentiary terms “should not usually have their sentence reduced, even by a day, simply to enable them the right to appeal a deportation order”. However, the present case was the first occasion upon which the Court of Appeal had made that pronouncement, and as the Crown had consented to the present appeal in the interests of fairness the appeal should be allowed. Cases considered by Jack Watson J.A.: Medovarski v. Canada (Minister of Citizenship & Immigration) (2005), [2005] 2 S.C.R. 539, 2005 SCC 51, 2005 CarswellNat 2943, 2005 CarswellNat 2944, 258 D.L.R. (4th) 193, 135 C.R.R. (2d) 1, 50 Imm. L.R. (3d) 1, 339 N.R. 1, EYB 2005-95306, [2005] S.C.J. No. 31 (S.C.C.) — followed R. v. Barkza (2011), 2011 CarswellAlta 1707, 2011 ABCA 273, 59 Alta. L.R. (5th) 178, 513 A.R. 333, 530 W.A.C. 333, [2011] A.J. No. 1024 (Alta. C.A.) — referred to R. v. Belenky (2010), 483 W.A.C. 354, 477 A.R. 354, 253 C.C.C. (3d) 344, 2010 CarswellAlta 539, 2010 ABCA 98 (Alta. C.A.) — followed R. v. Duhra (2011), 2011 CarswellAlta 914, 2011 ABCA 165, 505 A.R. 248, 522 W.A.C. 248, [2011] A.J. No. 608 (Alta. C.A.) — referred to R. v. Hamilton (2004), 72 O.R. (3d) 1, 186 C.C.C. (3d) 129, 241 D.L.R. (4th) 490, 189 O.A.C. 90, 2004 CarswellOnt 3214, 22 C.R. (6th) 1, [2004] O.J. No. 3252 (Ont. C.A.) — followed R. v. Kanthasamy (2005), 2005 BCCA 135, 2005 CarswellBC 555, 210 B.C.A.C. 54, 348 W.A.C. 54, 195 C.C.C. (3d) 182, 28 C.R. (6th) 194, [2005] B.C.J. No. 517 (B.C. C.A.) — considered

Cases considered by Peter Martin J.A. (dissenting): R. v. Leila (2008), 2008 CarswellBC 33, 2008 BCCA 8, 67 Imm. L.R. (3d) 82, 250 B.C.A.C. 117, 416 W.A.C. 117, [2008] B.C.J. No. 30 (B.C. C.A.) — referred to R. v. Morgan (2008), 239 C.C.C. (3d) 187, 2008 NWTCA 12, 2008 Car- swellNWT 92, 442 W.A.C. 140, 446 A.R. 140, [2008] N.W.T.J. No. 91 (N.W.T. C.A.) — referred to Statutes considered by Jack Watson J.A.: Controlled Drugs and Substances Act, S.C. 1996, c. 19 s. 5(1) — referred to s. 5(2) — referred to s. 7(1) — referred to 4 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

Criminal Code, R.S.C. 1985, c. C-46 s. 145(2)(a) — referred to Immigration and Refugee Protection Act, S.C. 2001, c. 27 Generally — referred to s. 64 — considered s. 64(1) — considered s. 64(2) — considered

APPEAL by accused from sentence imposed upon conviction on charges of cultivation of marijuana and possession of marijuana for purpose of trafficking.

D. Spaner for Respondent A.A. Sanders for Appellant

Jack Watson J.A.: Introduction 1 Following a trial in Provincial Court, the appellant was found guilty of unlawfully producing and possession for the purposes of trafficking in marijuana contrary to sections 7(1) and 5(2) respectively of the Con- trolled Drugs and Substances Act, SC 1996, c 19 (CDSA).

Background Facts 2 The facts as disclosed at trial were that the appellant was involved in a three-stage marijuana grow operation consisting of 591 plants at various stages of growth. It was estimated that the value of this crop ranged from $461,718 (if sold by the pound) to $738,750 (if sold by the ounce). An additional 28 grams of marijuana was found in two freezer bags in the freezer compartment to the refrigerator on the main floor. 3 At the subsequent sentencing hearing, the appellant’s prior criminal record was entered as an exhibit. It disclosed that on December 12, 2000 the appellant had been convicted of one count of failing to attend court (section 145(2)(a) of the Criminal Code), one count of trafficking in a scheduled substance (section 5(1) of the CDSA) and one charge of possession of a scheduled substance for the purpose of trafficking (section 5(2) of the CDSA). At that time, the appellant had received a sentence of one day in gaol on the first count and a three month conditional sentence order, concurrent, on each of the other two charges. 4 At the sentencing hearing in this case, the appellant’s then counsel and Crown counsel urged upon the sentencing judge, by way of joint submission, a sentence of imprisonment for two years. The Crown cited R. v. Pham Jack Watson J.A. 5

as aggravating factors that the appellant had benefitted financially and that he had not learned his lesson from his previous encounter with the criminal justice system. 5 Notwithstanding that the sentencing judge acceded to the joint submission of counsel, the appellant now appeals his sentence.

Grounds of Appeal 6 The appellant’s counsel (who was not his counsel at trial) argued in support of the appeal that (1) the immigration consequences of sentencing may trigger a reduced sentence on appeal and, (2) in any event, the sentence imposed exceeded the range for this offence and this offender. 7 For its part, the Crown resisted the appeal, except to the limited extent of reducing the sentence by one day so that the appellant is not subject to the provisions of the Immigration and Refugee Protection Act, SC 2001, c 27.

Analysis 8 The second ground of appeal can be quickly dismissed. By no stretch can it be plausibly argued that the sentence of two years is outside the range of an appropriate sentence for the offences for which the appellant was found guilty. 9 The real sticking point would appear to be the appellant’s argument of the “unintended consequence” of the sentence; specifically, that since the appellant received a two year sentence, he loses his right to appeal a deportation order under the provisions of the Immigration and Refugee Protection Act. Counsel for the appellant argued that the difference between a two year sentence and one of two years less a day is de minimus and the benefit of the lesser sentence should accrue to the appellant. 10 The leading case on this issue is the decision of the Ontario Court of Appeal in R. v. Hamilton (2004), 189 O.A.C. 90, 241 D.L.R. (4th) 490 (Ont. C.A.). It is therefore instructive to recall the facts of that case. Spe- cifically, in Hamilton two women had each pleaded guilty to a charge of importing cocaine. The trial judge concluded — based on his own materials and experience — that the two were victims of systemic racial and gender bias which led to their impoverished circumstances and made them vulnerable to those seeking cocaine couriers. As a result, he imposed a conditional sentence order in each case. 11 On appeal, the Ontario Court of Appeal held that the sentences were unfit, pointing out that the trial judge had made use of voluminous raw 6 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

statistical information, which he had obtained on his own initiative and without the assistance of a properly qualified witness. 12 At the outset, Doherty JA for the Court made the following statement: The imposition of a fit sentence can be as difficult a task as any faced by a trial judge. That task is particularly difficult where otherwise decent, law-abiding persons commit very serious crimes in circumstances that justifiably attract understanding and empathy. These two cases fall within that category of cases. 13 The Court then went on to hold that a more appropriate sentence would have been for a term of imprisonment for 20 months for one accused and two years less a day for the other. 14 Later on in his decision, Doherty JA made the following observation at para 158: I would not characterize the loss of a potential remedy against a deportation order that might be made a mitigating factor on sentence. I do think, however, that in a case like Ms. Mason’s there is room for consideration of the potentially added risk of deportation should the sentence be two years or more. If a trial judge were to decide that a sentence at or near two years was the appropriate sentence in all of the circumstances for Ms. Mason, the trial judge could look at the deportation consequences for Ms. Mason of imposing a sentence of two years less a day as opposed to a sentence of two years. I see this as an example of the human face of the sentencing process. If the future prospects of an offender in the circumstances of Ms. Ma- son can be assisted or improved by imposing a sentence of two years less a day rather than two years, it is entirely in keeping with the principles and objectives of sentencing to impose the shorter sentence. While the assistance afforded to someone like Ms. Mason by the imposition of a sentence of two years less a day rather than two years may be relatively small, there is no countervailing negative impact on broader societal interests occasioned by the imposition of that sentence: see R. v. Lacroix, [2003] O.J. No. 2032, 172 O.A.C. 147. (Emphasis added) 15 In my view, whatever the merit or otherwise of the above proposition, generally speaking, it has no application to the case under appeal given its facts. Significantly, in Hamilton, with respect to each accused, there had been the mitigating factor of a lack of any prior criminal record. In sharp contrast, the appellant had been previously convicted of two serious criminal offences. R. v. Pham Jack Watson J.A. 7

16 Parliament has enacted the Immigration and Refugee Protection Act. That legislation provides, inter alia, at section 64 as follows: 64(1) No appeal for inadmissibility No appeal may be made to the Immigration Appeal Division by a foreign national or their sponsor or by a permanent resident if the foreign national or permanent resident has been found to be inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality. 64(2) Serious criminality For the purpose of subsection (1), serious criminality must be with respect to a crime that was punished in Canada by a term of imprisonment of at least two years. 17 As this Court stated in R. v. Belenky, 2010 ABCA 98, 477 A.R. 354 (Alta. C.A.) at para 20: The factor of the collateral consequence of deportation can be given at most very limited weight. It cannot by itself remove a sentence from what would otherwise be the appropriate range. At most it can serve to move the sentence a small amount, nothing more. 18 In Belenky this Court allowed the Crown appeal and increased the sentence to two and one-half years on each count to be served concur- rently, notwithstanding the effects of section 64 of the Immigration and Refugee Protection Act upon the appellant. 19 Reference should also be made to the British Columbia Court of Ap- peal decision R. v. Kanthasamy, 2005 BCCA 135, 210 B.C.A.C. 54 (B.C. C.A.). In that case the appellant (who was a permanent resident of Can- ada but a citizen of Sri Lanka) had been convicted of sexual assault and unlawful confinement. He had been sentenced to three months concurrent imprisonment on each count, which after receiving double credit for the ten and one-half months he had spent in pre-trial custody, resulted in an effective sentence of two years. 20 On appeal, the British Columbia Court of Appeal allowed his appeal and substituted for the sentence of two years that had been imposed, a sentence of two years less a day, stating that such a variation “... does no violence to the sentence imposed by the trial judge and avoids an unintended consequence of great significance” (at para 23). 21 With respect, the plain and unequivocal language of a statute passed by the Parliament of Canada cannot amount to “an unintended consequence of great significance.” 8 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

22 As the Supreme Court of Canada stated in Medovarski v. Canada (Minister of Citizenship & Immigration), 2005 SCC 51, [2005] 2 S.C.R. 539 (S.C.C.) at para 46: The most fundamental principle of immigration law is that non-citizens do not have an unqualified right to enter or remain in Canada: Chiarelli v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 711, at p. 733. Thus the deportation of a non-citizen in itself cannot implicate the liberty and security interests protected by s. 7 of the Canadian Charter of Rights and Freedoms. 23 Furthermore, it would be a strange and unfortunate legal system wherein a non-citizen could expect to receive a lesser sentence than a citizen for the same crime. No such distinction should be countenanced. 24 The appellant abused the hospitality that has been afforded to him by Canada, particularly in light of the fact that he learned nothing from his prior encounter with the criminal justice system. It would not be appropriate to fly in the face of a proper and acceptable joint submission regarding sentence under the circumstances of this case in order to under- mine the provisions of the Immigration Refugee Protection Act. 25 Given the appellant’s prior convictions, the provisions of the Immi- gration Refugee Protection Act cannot amount to “an unintended consequence of great significance” such as to warrant even the seemingly mi- nor variation to sentence that the Crown was prepared to concede in this case relating to these convictions. 26 This Court in R. v. Duhra, 2011 ABCA 165, 505 A.R. 248 (Alta. C.A.) and R. v. Barkza, 2011 ABCA 273, 513 A.R. 333 (Alta. C.A.), allowed appeals whereby a sentence of two years was reduced to two years less a day due to the ramification of the Immigration and Refugee Protection Act. It is noteworthy to point out, however, that in neither case had the appellant a prior criminal record. Accordingly, these decisions have no applicability to the case at bar.

Conclusion 27 The appeal is accordingly dismissed.

Jack Watson J.A.:

I concur: R. v. Pham Peter Martin J.A. 9

Peter Martin J.A. (dissenting): Introduction 28 This is an appeal of a two year sentence imposed in response to the appellant’s conviction for drug trafficking. The appellant’s primary ob- jective is to have his sentence reduced by only one day. His concern is that the federal government may seek to deport him if his sentence remains at two years, and if so, he will lose his right to appeal that deportation order. Conversely, if the sentence is reduced by one day, his right to appeal the deportation order remains intact. To be clear, the non-citizen who has been sentenced to imprisonment for two years less one day may also be deported, but retains the statutory right to appeal the deportation order. 29 Appellate response to such appeals is quite consistent across the country. Where a person is sentenced to two years imprisonment and that sentence is thought to be fit, a sentence of two years less one day will invariably also be fit. Accordingly, an appeal to reduce a two year sentence by one day will usually be allowed because a two year sentence carries with it what has been referred to as unintended or collateral consequences — the prospect of automatic deportation without the right to appeal: see R. v. Hamilton (2004), 189 O.A.C. 90, 72 O.R. (3d) 1 (Ont. C.A.), R. v. Leila, 2008 BCCA 8, 250 B.C.A.C. 117 (B.C. C.A.), and R. v. Barkza, 2011 ABCA 273, 513 A.R. 333 (Alta. C.A.). Typically, the Crown consents to appeals of this kind, and they are almost always allowed. On the other hand, an appeal to significantly reduce a sentence for this purpose will usually be denied: see R. v. Morgan, 2008 NWTCA 12, 446 A.R. 140 (N.W.T. C.A.). 30 We have had two requests at this sitting to make only a minor adjustment to a sentence to benefit the prisoner. The other derived from an appeal that was accompanied by what we considered to be a remarkable proposal: that we also recommend the parole authorities expedite the appellant’s parole. That unusual request, and the fact that the appellant in the case at bar has a prior criminal record, has caused us to become concerned that we may have inadvertently signalled a willingness to assist the non-citizen criminal to circumvent validly enacted federal legislation. Nothing could be further from the truth. The reason for granting such appeals in the past is as stated above, and not because the court has any interest in facilitating the non-citizen criminal’s stay in Canada, or di- recting the parole authorities to expedite the release of such prisoners. 10 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

31 To correct any misconception, it should no longer be assumed that the Court of Appeal will routinely reduce a sentence to a lesser, but still fit, sentence where the appellant has a prior criminal record. Deportation of non-citizen prisoners sentenced to a term of two years imprisonment or more is not at all undesirable. By any measure Canada is a great country; it truly is a land of opportunity for all who are willing to work, and it has a long history of welcoming immigrants and refugees. Indeed, we are a country of immigrants. However, those who immigrate to Canada have the same responsibility to obey the law and to contribute to the better- ment of our society as those who were born here. The vast majority of immigrants do just that. Parliament has said that those who choose instead to become involved in crime may be deported, and those who become involved in serious crime, will be deported. That appears to be an entirely reasonable policy and those who qualify for removal by persist- ently engaging in criminal activity should not look to the courts for relief. 32 Returning to the case at bar, the appellant has previously been convicted of three offences. In 2000, he was convicted of failing to attend court, trafficking in a scheduled substance, and possession of a scheduled substance for the purposing of trafficking. For the first offence, he was sentenced to one day in jail; he received a three month conditional sentence for the other two charges. Now there is the more recent drug- re- lated conviction, which resulted in the two year prison term he asks us to reduce. Illegal drugs are a tremendous scourge on our society. The appellant’s repeated contribution to the problem, albeit modest in the large scale of things, would normally disqualify him from leniency. However, as the prosecution has consented to this appeal, I would agree to allow it with the caveat that in future cases, this relief will not be there simply for the asking. 33 Since preparing the foregoing, I have read the decision of my colleagues. It seems we agree that those with a criminal record who are sentenced to imprisonment for two years or more should not usually have their sentence reduced, even by a day, simply to enable them the right to appeal a deportation order. But this is the first time we have made that statement. No doubt, the Crown’s consent to this appeal was based, at least in part, on the prevailing practice, and the understanding that a joint submission of two years less one day would have been agreed to had trial counsel been aware of the collateral consequence flowing from a two R. v. Pham Peter Martin J.A. 11 year sentence. In other words, the Crown’s concession before us is based on fairness, and therefore I will be guided by that position. Appeal dismissed. 12 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

[Indexed as: Martin v. Royal] Sophia Martin, Applicant and Patrick Peter Royal, Respondent and The Minister of Public Safety and Emergency Preparedness, Interested Party Ontario Court of Justice Docket: Chatham-Kent 103/11 2012 ONCJ 202 Lucy Glenn J. Heard: January 24, 30; March 2, 21, 26, 2012 Judgment: April 12, 2012 Family law –––– Custody and access — Factors to be considered in custody award — Best interests of child generally — Miscellaneous –––– Imminent deportation of mother — Unmarried parties had child in February 2011 and separated in April 2011 — Mother’s refugee claim was dismissed and date of deportation to Hong Kong was imminent — Child was in mother’s care since separation — Court order awarded mother interim custody of child in October 2011 — Father’s contact was limited to two hours’ supervised access twice per week — Father had criminal charges pending for assaulting mother — Father had criminal record for crimes of violence — Children’s Aid Society was involved with parties — Mother applied for custody of child — Father brought cross-application for custody of child, and other relief — Mother’s application granted — Father’s application granted in part on other grounds — Mother granted care and custody of child — Child had always lived with, and been cared for, by mother — Change in custody would destabilize child — Mother’s plan for care was preferable — Father needed to address significant challenges if he were to be considered permanent caregiver — Best interests criteria still applied despite complications presented in case. Family law –––– Custody and access — Factors to be considered in custody award — Best interests of child generally — Multiple factors considered –––– Unmarried parties had child in February 2011 and separated in April 2011 — Mother’s refugee claim was dismissed and date of deportation to Hong Kong was imminent — Child was in mother’s care since separation — Court order awarded mother interim custody of child in October 2011 — Father’s contact was limited to two hours’ supervised access twice per week — Father had criminal charges pending for assaulting mother — Father had criminal record for crimes of violence — Children’s Aid Society was involved with parties — Mother applied for custody of child — Father brought cross-application for custody of child, and other relief — Mother’s application granted — Father’s appli- Martin v. Royal 13

cation granted in part on other grounds — Mother granted care and custody of child — Child had always lived with, and been cared for, by mother — Mother’s plan for care was preferable — Change in custody would destabilize child — Father had to address significant challenges if he were to be considered permanent caregiver — Best interests criteria still applied despite complications presented in case. Family law –––– Custody and access — Access — Factors to be considered — Miscellaneous –––– Mother’s imminent deportation order — Unmarried parties had child in February 2011 and separated in April 2011 — Mother’s refugee claim was dismissed and deportation date was imminent — Child was in mother’s care since separation — Court order awarded mother interim custody of child in October 2011 — Father’s contact was limited to two hours’ supervised access twice per week — Father had criminal charges pending for assaulting mother — Father had criminal record for crimes of violence — Children’s Aid Society was involved with parties — Mother applied for custody of child, and issue arose as to father’s access — Mother granted care and custody of child — Mother’s plan for care was preferable to father’s plan — Child had always lived with, and been cared for, by mother — Father was granted supervised access to child twice per week for two hours until deportation of mother — After deportation, father was granted reasonable contact as may be available by mail, telephone or electronically. Cases considered by Lucy Glenn J.: Ffrench v. Williams (2011), 2011 ONCJ 406, 2011 CarswellOnt 8964, 2 Imm. L.R. (4th) 266, [2011] O.J. No. 3910 (Ont. C.J.) — considered H. (J.) v. A. (F.) (2008), 2008 CarswellOnt 1053, 290 D.L.R. (4th) 732, 51 R.F.L. (6th) 181, 89 O.R. (3d) 514, [2008] O.J. No. 768 (Ont. S.C.J.) — followed H. (J.) v. A. (F.) (2009), 2009 ONCA 17, 2009 CarswellOnt 85, 77 Imm. L.R. (3d) 123, 306 D.L.R. (4th) 496, 265 O.A.C. 200, [2009] O.J. No. 88 (Ont. C.A.) — followed Statutes considered: Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 s. 13 — considered Children’s Law Reform Act, R.S.O. 1990, c. C.12 Generally — referred to s. 24 — considered s. 24(4) — considered 14 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 50(a) — considered

DETERMINATION of issues of custody and access arising out of mother’s application and father’s cross-claim.

Jeffery Rehner, for Applicant Stephen J. Andari, for Respondent Veronica Cham, for Department of Justice

Lucy Glenn J.:

1 This is a custody application brought by the mother, Sophie Martin against the father, Patrick Peter Royal involving their child Gabriel Xav- ier Royal, born February 14, 2011 which was commenced soon after the parents separated in April of 2011. The father has cross-claimed for custody and child support, or in the alternative for specified access. 2 Quite apart from the usual analysis that must be undertaken in custody and access disputes, this case has the added complication that the mother will be deported from Canada on April 30, 2012 to Hong Kong. As such the Minister of Public Safety and Emergency Pre-paredness has been added as a party to these proceedings for the purpose of making submissions. The child and the father are both Canadian citizens. If the mother is successful in her claim for custody, the child is expected to accompany her to Hong Kong. Given the father’s modest means, it is not likely that he will see his son again. He cannot afford a trip to Hong Kong and it is unlikely that the mother would be allowed reentry to Can- ada to facilitate a visit between father and child. Similarly, if the father is successful in his claim for custody, for the same reasons, the mother is unlikely to see her son again. Essentially, this decision will determine who will raise the child and who will be estranged from him. 3 The Mother’s Legal Status in Canada: The mother entered Canada at Toronto Pearson International Airport as a temporary resident on August 3, 2007. 4 On November 17, 2007, the mother was found to be inadmissible. Although she intended to establish permanent residence in Canada, she did not hold the visa required under the regulations in order to do so. On November 17, 2007 she was found eligible to make a refugee claim and did so on the same day. A departure order was also issued against the Martin v. Royal Lucy Glenn J. 15

mother on November 17, 2007. On February 11, 2010, the Refugee Pro- tection Division re-fused the mother’s refugee claim. 5 Her application for leave and for judicial review challenging this decision was dismissed on May 11, 2010 due to her failure to file an application record. 6 On June 14, 2010 she was notified in person that she could submit a pre-Removal Risk Assessment application which she did on August 9, 2010. This application was refused on December 14, 2010. She was served with this negative decision personally on January 25, 2011. 7 On July 23, 2010 she submitted an application for permanent residence under Humanitarian and Compassionate ground which was refused on September 27, 2011. 8 On March 21, 2012 (mid-trial) the mother was served with a direction to report for deportation on April 30, 2012. This notice contained details of the Air Canada flight on which she is booked for her return to Hong Kong on that date. 9 The Parent’s Relationship: The parents met in January or February of 2010 while working at a local onion factory. They commenced their relationship not long after her refugee application was refused in March of 2010 and started living together in April of 2010. By May of 2010 the mother was pregnant with Gabriel and was also named as a beneficiary on the father’s Ontario Disability Support Pension. 10 In her evidence the mother acknowledged that she entered into the relationship with the father in part to help her immigration claim. She indicated that her family (who are also in Canada and are subject to deportation) were worried about their immigration status and that they had put her under pressure to meet and marry him. The mother acknowledged that if he had married her she possibly could have been allowed to stay in Canada and that once legally in Canada she could also subsequently sponsor her parents into Canada. 11 In spite of these opportunistic dynamics, she claimed that as she got to know the father, she came to love him and that the pregnancy was planned. Nevertheless, in spite of the father’s initial reticence to marry, during the summer of 2010, he proposed to the mother and she apparently accepted. 12 However no actual marriage took place at that time and by early April of 2011, about six weeks after the birth of the child, the parents were forced to separate after the mother made allegations to the police of do- 16 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

mestic violence by the father. As a result, the father was charged criminally and the terms of his release required that they not associate or communicate. The evidence suggested that when the mother reported this abuse, it was her expectation that the police would merely open a file regarding the father (which is something she believe would have happened in Hong Kong) and not that he would be charged criminally. Even though she was subsequently unsuccessfully in having the charges withdrawn, she continued to maintain at trial that her allegations were true. 13 The child has remained in her care since April 1, 2011, that being the date of separation. 14 During the course of trial, the mother made it clear that what she really wanted was to remain in Canada and live together with her child and the father as a family. In the alternative, if she could not live in Canada, she wanted custody of the child and to take the child back to Hong Kong with her. 15 At the time that the mother gave her evidence, the father’s criminal trial was still in the future and they remained unable to communicate or associate pursuant to the terms of his bail. However, several days before the close of trial, an agreement was apparently reached with the Crown on the resolution of the charges and at the request of the mother they were again allowed to communicate with each other. The court was not advised of the basis on which the charges were resolved since the father professed not to know these details when he was asked about this on the witness stand. 16 Once the father could speak with the mother, mid-trial, he again asked her to marry him, but rather than saying yes, she would only go so far as to say that she would think about it. At that point even though the mother still wanted to be with the father, she indicated that she was hesi- tant to marry him, given that her deportation was now imminent and also because the Children’s Aid Society had warned her that they would “intervene” should the parent form a family unit. 17 During the father’s testimony, he also claimed that what he wanted was to live together with the mother and child. It was only when he was pressed about how the court should decide the custody issue (given the mother’s imminent deportation) that he stated that he should be given custody, otherwise he would never see his child again. 18 It is against this complicated background that the court must adjudi- cate this custody dispute. This couple wants to live together with the child, but the mother’s deportation, the Children’s Aid Society and possi- Martin v. Royal Lucy Glenn J. 17

bly the outcome of the father’s criminal charges have conspired against this and have forced a dispute over custody of their child. 19 Allegations by mother of spousal abuse: In spite of the outstanding charges, the mother testified that she loved the father and wanted to rec- oncile with him. Indeed she left the impression that she was minimizing the significance of her allegations of domestic abuse, perhaps in the hope that she could salvage their relationship. This observation may also have been influenced in part because she was not demonstrative in her de- meanour and her testimony was given through a Cantonese interpreter. 20 The mother made allegations of spousal abuse as follows: a. In May or June of 2010 the father prevented her from driving to a nearby town to visit her family by pushing her back into their home and confining her to prevent escape. She claimed that he threatened her with a knife at that time. She acknowledged that he may have been motivated to do this because of a worry about the safety of their unborn child and a concern that if she went to visit her family, she might not return to him. b. On another occasion the father pointed a ten-inchblade knife at her such that it touched her pregnant belly and her throat in an attempt to persuade her not to leave the home. However she minimized this allegation by claiming that she didn’t feel there was any danger because (in her words) “he would not actually hurt her” and “was just threatening her”. c. After the birth of the baby he prevented her from taking the child to visit her family on four or five occasions by blocking her exit from their home. She claimed his rational for doing this was that he didn’t like the Chinese way of caring for babies. For instance, he didn’t like the fact that the maternal grandmother used small spoons to feed the child water. d. She claimed that there were “some physical assaults” when she was not willing to have sexual relations soon after the child’s birth, in March of 2011. At that time he slapped her once on the face. 21 These allegations were made in an understated manner with explanations provided by her that seemed to minimize the seriousness of these events. However, the evidence of the parents’ former employer and professed former friend of the father was considerably more damning. This employer was the person who introduced the parents to each other. He 18 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

clearly was more disturbed than the mother by his observations. He testified that: a. The father had last worked for him about two years ago and had caused arguments among the other employees by trying to be controlling. b. The mother also worked for this employer during the time she was pregnant with the child, but there were times when the father prevented her from coming to work. He had witnessed the father arguing with the mother about this and heard him claim that she spent too much time away from him and that she came home too late from work. The father also didn’t like that she spent time at her parent’s home rather than with him. On the occasions when the employer was able to witness this reoccurring dispute, he would see the father bickering over this issue while the mother would be crying because she could not go to work. c. The mother told him that the father had threatened her with a knife and told her that if she left, he would kill her and the baby and then he would kill himself. The father had also admitted to the employer that he had put a knife to the mother’s throat because he didn’t want her to leave him. d. This employer claimed that the father also told him that he had “helped” the mother get used to having sex again after she had given birth by forcing her to have sex and sticking a rag in her mouth so no one could hear her scream. The father also told the employer that he had had sex with another person in front of the mother in the house at a time when he thought the mother was asleep. 22 In spite of this, the mother acknowledged that she did not report the father’s abuse to family and friends, although in March of 2011 she did tell her parents that he wouldn’t allow her to leave the house. It was at their prompting that she made a report to the police on April 1, 2011. 23 It was this report that resulted in the police laying charges against the father and the parents being prevented from further contact with each other. The resulting criminal charges included Forcible Confinement, two counts of Assault, Uttering Threats to Cause Death or Bodily Harm and Assault with a Weapon. 24 At trial the father provided very little insight into his position regarding these various allegations of abuse. Perhaps this was because the crim- Martin v. Royal Lucy Glenn J. 19

inal charges were still out-standing, although he could have relied on the protection of section 13 of the Canadian Charter of Rights and Freedom. He did claim that he didn’t stop the mother from leaving the home, but rather tried to talk her into not over-working when she was pregnant. However, he merely refuted the allegations of his former employer with a fleeting blanket denial which was unconvincing, especially given the serious nature of the claims. 25 No matter what the outcome of the criminal proceedings, based on the evidence that I heard, I conclude that the father was controlling of the mother, that he confined her against her wishes, he assaulted and threatened her by holding a knife to her throat and belly, and that he sexually assaulted her. 26 It is noteworthy that the criminal record of the father included prior convictions in 1991 for Aggravated Assault and Aggravated Sexual As- sault, in 1996 for two convictions of Assault with a Weapon, in 1999 for Careless use of a Firearm and in 2002 for a further Assault. While much of this record is very dated, it is unsettling that these prior offences speak to a pattern of behaviour that is consistent with recent behaviours described by the mother. His record also included several property offences. 27 Allegations of poor parenting: On cross-examination, the mother was remarkably complimentary of the father’s ability to parent the child. She agreed that the father had been supportive at the time the child was born and that she was not concerned about his devotion to the child. She believed that he loved his son and that he wanted what was best for him and she was compliant with suggestions by the father’s counsel that the father demonstrated positive parenting skills. However she also testified that: a. on at least two occasions he had covered the infant child’s head with a blanket which had caused difficulties between him and the maternal grandparents when they observed this. b. He would try to make the baby stop crying by yelling loudly at him. She claimed that sometimes the child would stop crying and other times he would react by crying even louder. However, the father rejected the mother’s complaints that this yelling might in- jure the child’s ears. 28 The former employer also made several concerning observations about the father’s ability to parent. He expressed regret that he had not 20 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

called the Children’s Aid Society at the time he made these observations. He testified that: a. The father had other children, none of whom were in his care. b. The father insisted on “training” this very young child to eat and sleep on the father’s schedule and was seen to refuse to feed the obviously hungry child because of this approach to parenting. c. The father had impressed on this employer that he had a large in- operable brain tumour which caused him to have seizures. The father claimed that if he were to trip and fall, he might die. e. The father kept the house cold and dark because he didn’t have adequate funds to pay for the utilities. f. Shortly after the birth of the child he observed that a soother was taped across the child’s mouth. The father admitted to him that he had done this to stop the child from crying. When the employer suggested that the child might choke if he were to spit up, the father stated that he knew his son and that this wouldn’t happen. 29 Once again the father provided very little rebuttal to the more serious of these allegations. With regards to the allegations of his former employer, he simply stated that they were not true and did not make any specific comment about the claims that he tried to stop the child from crying by yelling at him or taping a soother to his mouth. He did claim, however that when he covered that child’s head with a blanket he would be under the blanket with him. 30 He testified that he was on ODSP because he had seizures resulting from a neurological condition for which he was taking medication and that he had not had a seizure in about three and one-half years. 31 He also stated that while he had three other children, they were all estranged from him for reasons that were not of his making and that there weren’t any court orders that pro-hibited his contact with them. 32 However, given the lack of specific denials of the more serious allegations on the part of the father, one can only conclude that aspects of his parenting ability were highly concerning. 33 I say this in spite of the evidence introduced by the father to demonstrate his love for his child and that he interacted positively in a care giving role with other children. This included the evidence of Antonio Almeida who spoke favourably of the father’s interactions with Gabriel along with another preschool child. This evidence lacked detail and com- prised mainly of him stating that at no time did he see any conduct on the Martin v. Royal Lucy Glenn J. 21

father’s part that gave him cause to worry for the safety of the children. Further he admitted on cross-examination that his observation in regards to Gabriel were based on no more than six, one-half-hour visits at the parent’s home prior to their separation. The other positive observations of the father’s interactions with the other preschool child were made only when that child’s mother was also present. 34 Evidence was also given by Mr. Almeida and Channon Chase of their observations of father while he babysat two other boys who are now age 11 and 13 years. Once again they claimed that they had not seen any conduct on the father’s part that caused them to worry for their safety of the children. They confirmed that the father used time-outs as discipline and would engage in activities including play-time and chores with these children. 35 Ms. Chase testified that she had assisted both parents with parenting advice and that she had observed the father to be engaged and responsive with Gabriel and referred to his feeding, bathing, dressing, changing and playing with his son. As a neighbour, she had had a daily chance to make these observations until the parents separated. In addition she facilitated access arrangements and was present during the father’s handful of visits from the date of separation and September of 2011. 36 It is clear from the father’s own evidence that he believed he had cared for other children in a positive way and that he possessed good parenting skills. However given the total vacuum in his evidence when it came to addressing the specific poor parenting allegations, it is not possible to simply accept this more flattering description of his abilities. 37 Mental Health Concerns: Questions were raised about the mental health of both parents. The father spoke about his abusive childhood and was tearful and clearly still fragile because of the damage caused by these experiences. To his credit, he claimed that he has been going to a mental health counsellor, although there were few details and no documentation as to what had been accomplished. Likewise, the father claimed that the mother had once threatened to kill herself because of the possibility of deportation and referred to an incident where he had stopped her from doing so. This was denied by the mother. There were no other indications that she was suffering from mental health problems. Certainly she has been able to function well on her own and has been supporting herself as a single parent since the separation. 38 Interim Order: On October 28, 2011, Justice Fuerth made an interim order which among other things granted the mother custody of the child 22 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

and the father supervised access twice per week for two hours per visit. That order also dispensed with the consent of the father for the issuance of the child’s passport and required that the child’s passport be deposited with the Clerk of the Court forthwith upon issuance. The order also pro- hibited the removal of the child from the province of Ontario. 39 The Father’s Access Since Separation: Since the separation, the child has remained with the mother. This is to be compared to the modest contact the child has had with the father, which amounted to five or six visits between the date of separation and the end of October, 2011 when the interim order was made. Since then he has had access twice per week for two-hours per visit, supervised by a professional agency. Although the mother stated that she had no complaints with the care the father was providing to the child during access visits, it is noteworthy that since separation he has only had access visits with his son either in the presence of others, or in a supervised setting. She claimed that she did not want his access to be supervised and that the interim order of October 28, 2011 came about because of the requirements the local Children’s Aid Society for reasons which she did not fully understand. 40 Involvement of the Children’s Aid Society: Not long after the parties separated, the CAS became involved with the parents and made it clear that they would not be supportive of the father having unsupervised access with the child. The CAS Supervisor in charge of this case was sub- poenaed to give evidence and testified that if the father were to be successful in obtaining custody, they would apprehend the child. She specifically stated, however, that they did not have any child protection concerns regarding the mother’s care of the child. Without wanting this trial to be transformed into a quasi child protection proceeding, this supervisor was allowed to state in general terms the rationale for their position which was as follows: a. The Society produced the father’s criminal record which, as out- lined above, contained numerous convictions for crimes of violence. These convictions, especially given the recent outstanding charges for similar offences involving the mother were a concern. Further, they were not able to confirm that the father had received any treatment in the past for his assaultive behaviour. b. They believed that the father had extremely weak parenting skills and were aware that he had other children to whom he did not have access. They believed that he would require a parental sup- Martin v. Royal Lucy Glenn J. 23

port worker to provide extensive parenting training before he could take on the fulltime care of a child. c. They believed that the father had mental health and anger issues which required treatment. d. They believed that he had a health condition that caused seizures, as supported by the fact that he was receiving ongoing ODSP benefits. 41 While the father did provide some evidence that he had over the years taken part in counselling, the exact details were vague and the completion of any program of counselling was completely undocumented. He also claimed that he had not had a seizure in three and one-half years but he provided no medical evidence as to his condition or the current state of his health. Obviously, a single parent who was actively suffering from seizures would be of concern. It is noteworthy that at the time of trial, he still qualified for the ODSP because of this condition. While there is room to argue that the father might succeed at some point in having the child placed back with him after an apprehension by the Society, I must say that the concerns raised by the supervisor did have a familiar ring to them given the conclusions I have already reached. I would also say that if the parents were to somehow recommence living together, there is a basis for concern about the mother’s ability to protect the child from ex- posure to the father’s domestic violence and poor parenting practices. 42 Considerations arising from the mother’s imminent deportation: It was the position of the father that if I granted custody to the mother, I should order her to produce the child for specified access visits. Presum- ably this would be accomplished along with the continuance of the non- removal order for the child. Given the existence of the interim non-removal order at the least, I must consider if circumstances still necessitate that that provision should be continued. 43 As already stated, the Minister, through counsel made submissions urging the court not to make a specified access or non-removal order since these types of provisions could potentially interfere with the deportation process. 44 I was referred to paragraph 50(a) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 [as amended], which relates to the possibility that the mother’s deportation might be stayed as a result of a decision in this case. It reads as follows: 50. Stay — A removal order is stayed 24 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

a. If a decision that was made in a judicial proceeding — at which the Minister shall be given the opportunity to make submissions — would be directly contravened by the enforcement of the removal order; 45 The case law is helpful in understanding the impact on there being stay of deportation for a parent who has been granted custody of a child when there is also a non-removal and/or specified access order pertaining to that child in favour of the other parent. At paragraphs 122 and 123 of the case of Ffrench v. Williams, [2011] O.J. No. 3910, 2011 ONCJ 406 (Ont. C.J.), Justice Sherr of the Ontario Court of Justice referred back to an earlier decision made by him as follows: (122) In Canabate v. Ayala, 2010 ONCJ 54, 193 A.C.W.S. (3rd) 515, [2010] O.J. No. 4156, 2010 CarswellOnt 7374 (Ont. C.J.), I heard a case with many similarities to the case before me. The mother was subject to deportation to Argentina and both parents sought custody and, in the alternative, specified access and non-removal orders. The minister participated in Canabate v. Ayala and opposed the making of specified access and non-removal orders. In my decision, I reviewed the law that has developed in this area in paragraphs [51]- [53]. I rely again on this law. The law can be summarized as follows: a. There must be a genuine lis for the court to exercise its jurisdiction to make a custody or access order. b. There must be a genuine lis for the court to exercise its jurisdiction to make a non-removal order. c. The family law process should not be used for the sole purpose of frustrating the deportation of persons who have been ordered removed from Canada pursuant to the relevant immigration legislation. d. Non-removal orders are not to be made lightly. e. Each case must be carefully examined on its facts. (123) In Canabate v. Ayalas, I found that there was a genuine lis with respect to both the custody-and-access and non-removal issues. I found it to be in the children’s best interests to order custody to the mother, specified access to the father and a non-removal order, which the mother could apply to remove on 48 hours notice, if her deportation was about to be executed. I also made the following statements in paragraphs [58] — [60] that apply equally to this case: [58] The Court of Appeal decision in J.H. v. F.A. [2009] O.J. No. 88 supra makes it clear that it is not this court’s function to deal with the applicant’s immigration issues. This court’s sole focus is on Joshua’s best interests. The Martin v. Royal Lucy Glenn J. 25

issues raised by the Minister are factors to be considered by immigration officials and, if necessary, the Federal Court of Canada. [59] The orders that will follow are not made with the intent of frustrating the deportation process, but rather to comply with this court’s mandate under the Children’s Law Reform Act to determine what orders are in Joshua’s best interests in the context of a legitimately contested custody and access dispute. It would be an abrogation of this court’s responsibility to do otherwise. [60] Whether or not the applicant will be deported will be determined according to immigration legislation. The appropriate decision makers will have the benefit of this decision, which reflects findings regarding Joshua’s best interests in the family law context after a contested hearing, in which the Minister fully participated. The Minister may decide to defer the removal of the applicant pending the determination of her humanitarian and compassionate application. It may or may not be determined that a family court decision, where there is a genuine lis with respect to issues of access and non-removal of a child, will invoke the operation of paragraph 50(a) of the Immigration and Refugee Protection Act. The deportation may still proceed. These issues are for others to decide. This court is not interfering with this process. 46 Further, I note the helpful decision of Justice Czutrin at paragraphs 51, 55 and 56 in H. (J.) v. A. (F.) [2008 CarswellOnt 1053 (Ont. S.C.J.)], 2008 CanLII 7748 wherein it is suggested that the best interests of the child should be considered with the deportation of the mother in mind. At paragraph 56 he stated that: Not every interest of the child can be satisfied in an order, so judges must evaluate the best interests of the child in the factual and legal circumstances before them and limit their orders to matters over which they have jurisdiction. 47 Finally I rely on the decision of the Ontario Court of Appeal in H. (J.) v. A. (F.), 2009 ONCA 17 (Ont. C.A.) (CanLII) which stated at paragraph 23 that: [23] The purpose of non-removal orders under the CLRA is not to frustrate the deportation of persons who have been ordered removed from Canada pursuant to the relevant immigration legislation but to prevent parents from removing children from the jurisdiction in con- 26 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

tested family law proceeding: see Wosniak v. Brunton (2004), 1 R.F.L. (6TH) 429 (Ont. S.C.) at para. 23; Varvara v. Constantino, [2005] O.J. No. 861 (Q.L.), at para.33. It is not open to applicants scheduled to be removed by federal immigration authorities to use the family courts to stay in Ontario “under the guise of determining [the] best interests of a child”: Augustin v. Canada (M.P.S.E.P.) and Leonty (27 February 2008), Toronto 07/FA/014805 (Ont. S.C.) at para. 9. 48 Accordingly, the court’s mandate is to determine what is in Gabriel’s best interests under the Children’s Law Reform Act. It is up to others to determine issues related to the mother’s deportation. 49 There is clearly a dispute between the parents as to the custody of the child given that they cannot agree who will have his care when the mother is deported. Having said that, I can find no evidence that either party has any intention of voluntarily removing the child from this jurisdiction save and except through the operation of the deportation order, itself. While there may well have been evidence to support the interim non-removal order of October 28, 2011, there was no such evidence at trial. Given the lack of any foundation for continuing this restriction, the non-removal order will be terminated. 50 What remains to be done is to consider the parents’ plans and examine the best interests of the child given the complicated circumstances of this case. 51 The mother’s Plan: At the close of trial, it was the mother’s hope that she would be granted custody of the child, that she could be remain in Canada and that the father could see the child every day. She further made it quite clear that she wished some sort of reconciliation with the father. 52 However it appears virtually certain that she will be forced to return to China, in which case her plan would be to live with her maternal grandparents with whom she communicates regularly but has not seen in seven years. They live in a city of over a million people on mainland China. 53 Her grandmother is age 89 and lives in a five-bedroom house where there are already nine other resident family members. She also testified that her entire family (totalling nine people) would be deported back to China at the same time. Thus, together with the child, another eleven people would be going to live in that household. When questioned about the feasibility of this arrangement she stated that they might go to her Martin v. Royal Lucy Glenn J. 27

father’s side of the family instead for help. It was clear that there had been very little thought given to living accommodations for this returning family. 54 It would be her intention to find work once she got back to China, however, she could obtain very basic social benefits for the provision of food until she was able to do so. She indicated that at the time that she left China, she had debts of about $2,000 Canadian dollars. 55 Although this transition sounded difficult, she was confident that her family would assist her. Both of her parents have had daily contact with the child since the separation and often care for him especially at times when the mother is working. Even before the separation, they would visit with the child about twice a week and they would probably continue to play a direct role in his care during what would promise to be a period of great adjustment. 56 So far as the comparative benefits to the child of remaining in Canada versus living in China, the mother agreed that he would have a better standard of living here in Canada. Except for a heart murmur which is being monitored by the doctor, the child is healthy. He is also currently on a waiting list to have minor surgery to straighten his thumb. The mother did indicate that she had a doctor in Hong Kong before coming to Canada. She believed that there would be public health care available to her and the child about a one-hour trip away by train. 57 The father’s Plan. If the mother’s plan appeared sketchy, the father’s plan was even more so. He appeared fixated on wanting to live as a family with the mother and seemed oblivious to the fact that the mother had been assigned a flight on Air Canada to return to Hong Kong on April 30, 2012. 58 When reminded of this fact, he made no mention that the CAS were planning to apprehend Gabriel if he were to gain custody of him. He spoke of some support people who would help him care for his son, however, there was no apparent appreciation of the jeopardy Gabriel faced by being placed into foster care. It was only at the prompting of the court that he made suggestions of possible family members who might propose alternative placements for the child should a protection proceeding otherwise result in a wardship order. Even at that, there was no evidence that any of these people had any prior involvement with the child or that the father had even thought about this issue. 59 There was a total absence of recognition on his part that if he obtained custody of Gabriel, the child would not only suffer the trauma of 28 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

losing contact with the mother with whom he was primarily attached, but that he would also be taken from the father and placed with strangers into foster care. 60 Further, he did not have a plan to address the concerns of the CAS, which no doubt also underpinned the rationale for the interim supervised access order. 61 Best interests of the child: In spite of all the complications presented in this case, one cannot lose sight of the fact that this is a custody/access dispute, and that the usual criteria still must apply in deciding it. In this regard, I refer to section 24 of the Children’s Law Reform Act R.S.O. 1990. c. C.12 as amended which requires a consideration of the best interests of the child. In reviewing paragraphs “a” to “h” of subsection 2, I would make the following observations: a. I have no doubt that the child has a bond with the father however, since October of 2011 his contact with the father has been limited to a two-hour supervised visit, twice per week. This actually represented an increase in the contact he had been having with the child previously. I accept that the father has been regular in his visitation and I do not doubt that he loves his son immensely. There is no indication that the child has any relationship with any member of his family. On the other hand, the child has always lived with and has been cared for by the mother and one must assume that the child’s primary attachment would be with her. Further, her parents and siblings have regularly assisted in the care of the child and the evidence established that they were all about to be deported back to Hong Kong as well. I conclude that the child’s strongest attachment is to the mother and the members of her family. b. At 13 months of age, the child is too young to ascertain his views and wishes. c. The child has been in the sole care of the mother for over a year, which is almost all of his life. Any change in this regime would be destabilizing. d. The child does not have any special needs at this time. He does have a heart murmur which is being monitored here in Canada. Further he has a crooked finger for which he is waiting on a surgi- cal procedure. However, these conditions do not appear to be serious and there was no evidence that he could not receive adequate medical care in China. It is clear that the mother will be plunged Martin v. Royal Lucy Glenn J. 29

into some degree of uncertainty when she is deported to Hong Kong with the child. However, what is certain above all else is that her family will be a support to her. A further asset which she brings to the table is her desire and ability to work. She worked while she was pregnant, and even after the separation. She obtained her own accommodations, enrolled the child in day care and also relied, in part, on her parents to care for the child while she worked. This could not have been easy. I have every confidence that she is industrious, hardworking and will continue to employ her family resources to provide for the needs of her child in China even though the details of her plan are not very clear. On the other hand, the father receives a disability pension because of a medical condition which causes seizures. While it is comforting to hear him say that he has not had a seizure for three and one-half years, it begs the question as why he still qualifies for ODSP or, on the other hand why he has not sought employment. Counsel for the father suggested that the educational and medical services available to the child in Canada are a known entity as opposed to what might be available in China and that should be persuasive in comparing the parents’ plans and considering the best interest of the child. While this must be considered, it is not a pivotal consideration. e. In addition to the comments that I have already made about the competing parental plans, I would simply add that the mother’s plan is preferable to that of the father. The are great uncertainties in each plan, but it is better for the child to remain in the care of the mother with whom he has always lived and have all of the supports that her family can provide, than to be placed with the father with whom he has only had limited and mainly supervised contact since the date of separation. This is especially true knowing that the CAS plans to apprehend the child if he were placed in the father’s care. f. As for the comparative permanence and stability of each of the family units, I recognize that there is great uncertainty in each. The father would likely have to address the valid protection concerns before persuading a court that the child should remain in his care. The deportation of the mother and her family back to Hong Kong will be wrenching. However in a choice between the two propositions, the mother’s family unit is more stable. 30 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

g. As for the comparative parenting ability of each parent, it is clear that the father demonstrated some significant challenges which need to be addressed if he were to be considered as a permanent caregiver. These concerns do not exist for the mother. h. The question of blood relationships does not apply to our fact situation. 62 Under section 24(4) of the CLRA I must also reaffirm my conclusion that the father was controlling and abusive of the mother when they lived together and that there were features of his childcare methods that went well beyond simply being labelled as “poor parenting”. A parent who yells in the ears of an infant or who tapes a soother over his mouth to make him stop crying is being abusive. 63 For all of these reasons, it is in the best interests of the child that he be placed in his mother’s care and custody. With regards to the father’s access, I am aware that there are very few days left between now and the planned departure date for the mother. If her deportation were not a factor, I might have been inclined to leave the interim order in place while the father obtained some parenting and domestic violence counselling in the hopes that we could come back in about four or five months and attempt to open up the access regime. I would also want to be more certain about the father being free of the risk of having seizures. However, given that the child will be leaving for Hong Kong shortly, I will simply affirm the existing access order as a final order but make it subject to termination on the mother being deported. If for some reason the mother is not deported, I would be prepared to revisit the access issue after the father completed the type of services and provided medical evidence as set out above. 64 As stated above, there is no dispute under the CLRA regarding either parent attempting to remove the child from this jurisdiction that needs to be determined. On the contrary, both parents want to remain here with the child. Accordingly the existing non-removal order will be terminated. 65 Lastly, with the consent of all parties, the father’s claim for child support is noted as withdrawn. 66 Accordingly, order to go that: a. The mother, Sophia Martin is granted the care and custody of the child Gabriel Xavier Royal, born February 14 2011. b. The father Patrick Peter Royal will have access the said child twice per week for two hours each visit, to be supervised by Glen- Martin v. Royal Lucy Glenn J. 31

garda. This order for access will terminate on the deportation of the mother from Canada assuming that the child accompanies the mother. c. After the deportation of the mother from Canada (with the child in her company), the father will have such reasonable contact with the child as may be available to the parents by way mail, telephone and/or other electronic means. The mother will provide the father on a continuous basis with her contact information, including any address, phone number or e-mail address which she may have in order to facilitate this contact. The mother will provide photographs of the child to the father and will actively encourage the child to communicate with the father in future. d. Paragraph 5 of the Order of Justice Fuerth dated October 28, 2011 which prohibits the removal of the said child from Ontario is terminated. e. The Clerk of the Court will release the said child’s passport to the mother forthwith. f. Should any party wish costs, they may return the matter to my court by way of motion within 30 days of the release of this order. Order accordingly. 32 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

[Indexed as: Wang v. Canada (Minister of Citizenship & Immigration)] Xiao Yu Wang, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-4109-11 2012 FC 495 James W. O’Reilly J. Heard: January 11, 2012 Judgment: April 30, 2012 Immigration and citizenship –––– Admission — Application for temporary resident or immigrant visa — Powers and duties of visa or immigration officer — Procedural fairness –––– Foreign national was citizen of China who had lived in Canada under study and work permits — At some point, foreign national had married husband who was Hungarian citizen — Foreign national had two children in Canada — Husband was found to be inadmissible to Canada and was deported — Foreign national unsuccessfully applied for exemption from requirement that application for permanent residence be made from outside of Canada — Immigration officer had relied on undisclosed information obtained from internet about China’s and Hungary’s citizenship laws — Foreign national brought application for judicial review — Application granted on other grounds — Officer had not been obligated to disclose information obtained from internet — Officer had relied on publicly-available documents and therefore had not violated any rules of procedural fairness — Moreover, foreign national had raised issue of family’s status in Hungary and China — Foreign national could have anticipated that officer would consult citizenship laws of those countries — Officer had simply relied on information taken from website of Hungary’s Min- istry of Foreign Affairs and of China’s Embassy in Canada — These were obviously well-known, publicly available sources. Immigration and citizenship –––– Admission — Application for temporary resident or immigrant visa — Inland applications — Undue hardship –––– Foreign national was citizen of China who had lived in Canada under study and work permits — At some point, foreign national had married husband who was Hungarian citizen — Foreign national had two children in Canada — Husband was found to be inadmissible to Canada and was deported — Foreign national unsuccessfully applied for exemption from requirement that application for permanent residence be made from outside of Canada — Foreign national brought application for judicial review — Application granted; matter remitted for rede- Wang v. Canada (MCI) James W. O’Reilly J. 33

termination — Decision of immigration officer was unreasonable — Officer’s analysis of hardship faced by foreign national and children if relocated to Hun- gary or China had not been complete — Officer had only considered potential status in those countries — Officer had not considered whether removal would cause serious hardship — Officer never considered that foreign national and children could face difficulty obtaining citizenship in Hungary — Officer never considered possibility of discrimination in Hungary — Officer never considered whether husband could work in China or whether China’s one-child policy would have impact.

APPLICATION by foreign national for judicial review of decision of immigration officer denying exemption from requirement that application for permanent residence be made from outside of Canada.

Micheal Crane, for Applicant Maria Burgos, for Respondent

James W. O’Reilly J.: I. Overview 1 In 2000, Ms. Xiao Yu Wang came to Canada from China on a study permit. She stayed in Canada on additional study permits and work permits. She has two Canadian-born children. Her husband is a Hungarian citizen. 2 Ms. Wang applied for permanent residence in Canada as a skilled worker, but was turned down because her husband was inadmissible to Canada. He was deported to Hungary in 2010. 3 Ms. Wang then submitted an application for humanitarian and compassionate [H&C] relief. An immigration officer refused her application, finding that Ms. Wang and her family would not suffer unusual, undeserved or disproportionate hardship if they had to apply for permanent residence either from China or Hungary. 4 Ms. Wang argues that the officer treated her unfairly by relying on documentation of which she was unaware. She also argues that the officer rendered an unreasonable decision. She asks me to overturn the officer’s decision and order another officer to reconsider her application. 5 In my view, the documents on which the officer relied did not have to be explicitly disclosed to Ms. Wang. They were publicly available and it was foreseeable that the officer would consult them. However, the officer’s analysis of the hardship that would face the family if they relocated to Hungary and China was incomplete. While the officer consid- 34 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

ered whether the family could obtain status in those countries and basic amenities such as health care and education, he did not actually consider whether their removal would cause them serious hardship. Therefore, his conclusion was unreasonable. I must, therefore, allow this application for judicial review. 6 The issues are: 1. Did the officer treat Ms. Wang unfairly? 2. Was the officer’s conclusion unreasonable?

II. The Officer’s Decision 7 The officer accepted that Ms. Wang had a close relationship with her family in Canada. However, the officer weighed a number of negative factors against her. For example, Ms. Wang’s husband had been ex- cluded from refugee protection for criminality, and had worked illegally in Canada. 8 Ms. Wang pointed out to the H&C officer that she was not certain her husband would be allowed to accompany her if she returned to China. She also worried that her children would not be entitled to health care or schooling in China. Similarly, she submitted that her children would not be entitled to health care or education in Hungary, if the family reunited there. 9 In response to these submissions, the officer sought out information on the rules of naturalization in both China and Hungary. She found this information on the Internet. After reviewing it, she concluded that both China and Hungary allow the spouses of citizens to become permanent residents. In Hungary, the children of citizens are recognized as citizens. The rules in China are less clear, but it appeared to the officer that, because Ms. Wang was merely a temporary resident of Canada when her children were born, they would be recognized as Chinese citizens. There- fore, the children would have all of the rights of citizenship, including health care and education, in both Hungary and China. The officer also pointed out that both countries have private schools if the parents wished their children to be educated in English. 10 The officer accepted that it was in the children’s best interests for the family to reside together. She considered them young enough to adjust to a new country. They could keep in touch with family members in Canada through visits and Skype. There would naturally be a period of adjustment, but they had significant material and personal resources on which Wang v. Canada (MCI) James W. O’Reilly J. 35

they could rely. Therefore, the hardships the family would face were not unusual or unanticipated. 11 Accordingly, the officer refused Ms. Wang’s application.

III. Issue One - Did the Officer Treat Ms. Wang Unfairly? 12 Fairness usually requires that decision-makers disclose any materials they consult that are not in the record and give applicants a chance to make submissions on them. However, this is not the case for documents that are general, neutral, publicly available, and do not contain novel and significant information (Mancia v Canada (Minister of Citizenship and Immigration), [1998] FCJ No 565 (CA), at paras 26-27). 13 Here, the officer relied on publicly available documents and, therefore, did not violate any rules of procedural fairness. Moreover, Ms. Wang raised the issue of the family’s status in Hungary and China in her H&C application. Therefore, she could have anticipated that the officer would consult the citizenship laws of those countries (Nadarajah v Can- ada (Minister of Citizenship and Immigration), [1999] FCJ No 283 (CA), at para 1). The officer simply relied on information taken from the website of Hungary’s Ministry of Foreign Affairs and of China’s Embassy in Canada. These are obviously well-known, publicly available sources. 14 Still, as will be seen below, the officer’s analysis would have benefited from additional submissions Ms. Wang could have provided, had she been given an opportunity.

IV. Was the officer’s decision unreasonable? 15 It seems clear that the children would be recognized as Hungarian citizens, and that Ms. Wang would be able to acquire permanent residence in Hungary. However, there seem to be significant hurdles regarding Ms. Wang’s entitlement to Hungarian citizenship. It appears that she would have to show that she was fully employed in Hungary and to pass an examination in basic constitutional studies in the Hungarian language. The officer did not appear to consider these provisions or the hardship it might cause Ms. Wang to satisfy them. Similarly, for the children to become citizens of China, it appears that Ms. Wang would have to demonstrate that she had only been living in Canada temporarily and had not actually settled here. It was not obvious that she could satisfy that burden. 16 In other words, the meaning of the rules the officer consulted was not self-evident. Further, the officer essentially stopped his analysis of hard- 36 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

ship at the issue of status. For example, he did not consider whether Ms. Wang or the children would experience discrimination in Hungary. Nor did he consider whether Ms. Wang’s spouse would be able to work in China, or the impact on the family of China’s one-child policy. 17 Given these uncertainties and omissions, I find that the officer’s analysis of the potential hardships facing Ms. Wang and her family was incomplete and his conclusion was unreasonable.

V. Conclusion and Disposition 18 The officer did not have an obligation to disclose the documents he relied on to Ms. Wang or to give her a chance to comment on them. However, had he done so, his analysis of the issue of the family’s status in China and Hungary would likely have been more complete. However, the officer also failed to analyze fully the hardships that would face the family if they relocated to Hungary or China. His conclusion that the hardship was not sufficiently serious to merit relief, therefore, was unreasonable. 19 The application for judicial review is allowed. Counsel for Ms. Wang proposed questions for certification. However, given the basis on which I have allowed this application for judicial review, the proposed questions should not be stated.

Judgment THIS COURT’S JUDGMENT IS that: 1. The application for judicial review is allowed and the matter is referred back to the Board for reconsideration by another officer; 2. No question of general importance is stated. Application granted; matter remitted for redetermination. Canada (MCI) v. B001 37

[Indexed as: Canada (Minister of Citizenship & Immigration) v. B001] The Minister of Citizenship and Immigration, Applicant and B001, Respondent Federal Court Docket: IMM-2367-12 2012 FC 523 Judith A. Snider J. Heard: April 24, 2012 Judgment: May 3, 2012* Immigration and citizenship –––– Enforcement — Arrest and detention — Detention review — General principles –––– Refugee claimant was held in immigration detention from time of his arrival in Canada in August 2010 — Since May 2011 detention had been on basis that claimant posed flight risk — Deten- tion had been reviewed and affirmed in 20 previous decisions by Immigration and Refugee Board — After twenty-first detention review, board determined that claimant should be released on $10,000 security deposit, plus other conditions — Minister of Citizenship and Immigration applied for judicial review of board’s decision — Application granted; release decision quashed — Board failed to consider whether security deposit was effective alternative to detention under s. 248(e) of Immigration and Refugee Protection Regulations — Board did not review source of funds for proposed security deposit and therefore failed to conduct meaningful analysis of whether security deposit would reduce risk that claimant would not turn up for removal or meet conditions of his release — Board did not provide clear and compelling reasons for departing from previous 20 decisions which had consistently referred to claimant’s lack of credibility. Immigration and citizenship –––– Enforcement — Arrest and detention — Release from detention — Terms and conditions –––– Refugee claimant was held in immigration detention from time of his arrival in Canada in August 2010 — Since May 2011 detention had been on basis that claimant posed flight risk — Detention had been reviewed and affirmed in 20 previous decisions by Immigration and Refugee Board — After twenty-first detention review, board determined that claimant should be released on $10,000 security deposit, plus other conditions — Minister of Citizenship and Immigration applied for judicial

*A corrigendum issued by the court on November 1, 2012 has been incorporated herein. 38 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th) review of board’s decision — Application granted; release decision quashed — Board failed to consider whether security deposit was effective alternative to detention under s. 248(e) of Immigration and Refugee Protection Regulations — Board did not review source of funds for proposed security deposit and therefore failed to conduct meaningful analysis of whether security deposit would reduce risk that claimant would not turn up for removal or meet conditions of his release. Cases considered by Judith A. Snider J.: Canada (Minister of Citizenship & Immigration) v. B004 (2011), 2011 Car- swellNat 782, 2011 CF 331, 2011 CarswellNat 1968, 97 Imm. L.R. (3d) 330, 387 F.T.R. 79 (Eng.), 2011 FC 331, [2011] F.C.J. No. 428 (F.C.) — considered Canada (Minister of Citizenship & Immigration) v. B157 (2010), 2010 FC 1314, 2010 CarswellNat 5022, 379 F.T.R. 251 (Eng.), 2010 CarswellNat 5686, 2010 CF 1314 (F.C.) — referred to Canada (Minister of Citizenship & Immigration) v. Panahi-Dargahloo (2010), 369 F.T.R. 301 (Eng.), 2010 FC 647, 2010 CarswellNat 1757, 2010 CF 647, 2010 CarswellNat 2602 (F.C.) — followed Canada (Minister of Citizenship & Immigration) v. Zhang (2001), 15 Imm. L.R. (3d) 81, 2001 CarswellNat 2838, [2001] 4 F.C. 173, 2001 FCT 521, 2001 CarswellNat 1089, [2001] F.C.J. No. 796 (Fed. T.D.) — followed Canada (Minister of Public Safety & Emergency Preparedness) v. Karimi- Ashad (2010), 92 Imm. L.R. (3d) 32, 2010 CarswellNat 5080, 2010 CF 964, 373 F.T.R. 292 (Eng.), 2010 CarswellNat 3530, 2010 FC 964, [2010] F.C.J. No. 1194 (F.C.) — followed R. v. Saunders (2001), 46 C.R. (5th) 395, 2001 CarswellBC 2162, 2001 BCSC 1363, 88 C.R.R. (2d) 88, 159 C.C.C. (3d) 558 (B.C. S.C.) — considered Statutes considered: Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 Generally — referred to Criminal Code, R.S.C. 1985, c. C-46 Generally — referred to Immigration and Refugee Protection Act, S.C. 2001, c. 27 Generally — referred to s. 37(1)(b) — referred to s. 57(2) — considered s. 112(1) — considered Canada (MCI) v. B001 Judith A. Snider J. 39

Regulations considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Immigration and Refugee Protection Regulations, SOR/2002-227 s. 47(1) — considered s. 47(2) — considered s. 245 — considered s. 248 — considered s. 248(e) — considered

APPLICATION by Minister of Citizenship and Immigration for judicial review of decision releasing refugee claimant from detention.

Mr. Edward Burnet, for Applicant Mr. Peter Edelmann, for Respondent

Judith A. Snider J.: I. Introduction 1 The Respondent (referred to as B001 or the Respondent) is a citizen of Sri Lanka who arrived in Canada on the MV Sun Sea on August 13, 2010. The Respondent made a refugee claim. He has been held in immigration detention since August 13, 2010 on three different grounds: (a) until November 8, 2010, on the basis of identity; (b) between November 8, 2010 and May 5, 2011, on grounds of security; and (c) since May 5, 2011, on the basis that he posed a flight risk. His detention was reviewed and affirmed in 20 decisions by members of the Immigration Division, Immigration and Refugee Board (the ID). Upon conclusion of the Re- spondent’s 21st detention review hearing, in a decision dated March 7, 2012 (the Release Decision), a member of the ID (the Member or Board) determined that he should be released. The Minister of Citizenship and Immigration (Minister) seeks to quash the Release Decision. 2 While the Respondent was in detention, he was reported to be inadmissible to Canada due to the existence of reasonable grounds to believe that he had been engaged in people smuggling (see s. 37(1)(b) of the Immigration and Refugee Protection Act, S C 2001, c 27 [IRPA]). After an admissibility hearing in August 2011, the Respondent was found to be inadmissible to Canada. A Deportation Order issued on September 8, 2011, and the Respondent became ineligible to have his refugee claim referred to the Refugee Protection Division. As permitted under s. 112(1) of IRPA, the Respondent applied for protection in Canada pursuant to a pre-removal risk assessment (PRRA). The PRRA application has been 40 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

outstanding since September 2011, and, as acknowledged by the Mem- ber, “there [is] no timeline available for when a decision might be forthcoming”. 3 For the reasons that follow, I conclude that the Release Decision is not reasonable and will be quashed. 4 I also note that my task in this judicial review is not to determine whether B001 should be detained or released from detention or to comment on the propriety of the applicable legislation. Rather, my task is to ensure that the law related to detention reviews is applied fairly to both the Minister and the Respondent.

II. Issues 5 In my view, there are two determinative issues: 1. Did the Board fail to consider the factors listed in s. 248 of the Immigration and Refugee Protection Regulations, SOR/2002-227 [Regulations], specifically, whether the imposition of the proposed security deposit was an alternative to detention, in light of the fact that the Respondent was a “flight risk”? 2. Did the Board err by engaging in speculative analysis concerning the PRRA decision?

III. Standard of Review 6 The standard of review of the Release Decision is reasonableness. This is consistent with the decision in Canada (Minister of Public Safety & Emergency Preparedness) v. Karimi-Ashad, 2010 FC 964 (F.C.) at para 16, (2010), 373 F.T.R. 292 (Eng.) (F.C.) [Arshad], where Justice Zinn observed that, following Canada (Minister of Citizenship & Immigration) v. Panahi-Dargahloo, 2010 FC 647 (F.C.) at para 25, (2010), 369 F.T.R. 301 (Eng.) (F.C.), the standard of review for a decision by a member of the ID to release a foreign national from detention is reasonableness. Justice Zinn set out the following additional principles at paragraph 16 of Ashad, which are also useful in this case: [....] (ii) Deference is owed to the member’s findings of fact and assessment of the evidence: Canada (Minister of Citizenship and Immigra- tion) v. Khosa, 2009 SCC 12, para. 59. (iii) The role of this Court is not to substitute its opinion for that of the member: Walker v. Canada (Minister of Citizenship and Immi- gration, 2010 FC 392, paras. 25-26. Canada (MCI) v. B001 Judith A. Snider J. 41

(iv) If a member departs from prior decisions that maintained the detention, then the member must set out clear and compelling reasons for so doing: Canada (Minister of Employment and Immigration) v. Thanabalasingham, 2004 FCA 4. 7 However, a standard of correctness is applicable where the Board “fails to consider the appropriate factors altogether” (Canada (Minister of Citizenship & Immigration) v. B004, 2011 FC 331 (F.C.) at para 17, (2011), 387 F.T.R. 79 (Eng.) (F.C.)).

IV. Statutory Framework 8 The Respondent has had 21 detention review hearings, all of which resulted in his continued detention, except for this last hearing, which is the subject of this judicial review. As required by s. 57(2) of IRPA, the ID must review the Respondent’s continued detention at least once every 30 days. 9 The statutory framework with respect to detention and detention reviews has been described in many decisions of this Court; see, for example, Canada (Minister of Citizenship & Immigration) v. B157, 2010 FC 1314 (F.C.) at paras 20-21, (2010), 379 F.T.R. 251 (Eng.) (F.C.) [B157]. I will not repeat it here. Suffice it to highlight that, where the ID finds that a detained foreign national is unlikely to appear for removal or other immigration proceeding, the person may be held in detention. Sec- tion 245 of the Regulations specifies the factors to be considered for a determination of whether a foreign national is unlikely to appear or, as commonly described, is a “flight risk”. 10 Where grounds for detention are found to exist, s. 248 of the Regula- tions requires that the ID consider certain factors before deciding to de- tain or release the individual. This statutory provision is central to this judicial review application; it provides as follows: 248. If it is determined that there are grounds for detention, the following factors shall be considered before a decision is made on detention or release: (a) the reason for detention; (b) the length of time in detention; (c) whether there are any elements that can assist in determining the length of time that detention is likely to continue and, if so, that length of time; (d) any unexplained delays or unexplained lack of diligence caused by the Department or the person concerned; and 42 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

(e) the existence of alternatives to detention. 248. S’il est constaté qu’il existe des motifs de détention, les critères ci-après doivent etreˆ pris en compte avant qu’une décision ne soit prise quant a` la détention ou la mise en liberté: a) le motif de la détention; b) la durée de la détention; c) l’existence d’éléments permettant l’évaluation de la durée probable de la détention et, dans l’affirmative, cette période de temps; d) les retards inexpliqués ou le manque inexpliqué de diligence de la part du ministère ou de l’intéressé; e) l’existence de solutions de rechange a` la détention.

V. Decision under Review 11 In deciding to offer release on terms and conditions, the Member indicated that she was basing her decision in part on her finding that the risk of flight was not as great as previous members had found, and, “even more significantly” because any risks were outweighed by an analysis of the factors listed under s. 248 of the Regulations. 12 With respect to the issue of flight risk, the Member reviewed the factors listed under s. 245 of the Regulations and concluded that she did “not find the risk of flight to be as great as what [her] colleagues have perceived in the past, partly because of the change in circumstances of [the Respondent’s] case”. The Member noted that she was persuaded by the Respondent’s argument that the “relevant point of analysis” was not whether he would report for removal, but rather whether he would be available to receive the PRRA decision. The Respondent argued that he could be arrested by Canada Border Services Agency (CBSA) at that point if he received a negative decision and there were concerns that he would not appear for removal. In particular, the Board explained that: The admissibility hearing has now concluded and a Deportation Or- der is outstanding. He has applied for a pre-removal risk assessment and I find that it is more likely than not that he will appear to receive the PRRA decision and, as previously indicated, CBSA at that time would have the authority to re-arrest him if the PRRA decision was negative and they were concerned that he was unlikely to appear for removal. Canada (MCI) v. B001 Judith A. Snider J. 43

13 Having found that there was some — albeit reduced — flight risk, the Member turned to the s. 248 factors. The Member made the following observations: • the reason for detention was the fact that the Respondent was unlikely to appear; • the Respondent’s detention had already exceeded 18 months; • it was difficult to determine the length of ongoing detention because there was no longer any timeline for finalization of the PRRA; and • the delays in completing the PRRA were “somewhat explained” and could partially be attributed to the unusual nature of the arrival of the Sun Sea and the “complex nature of this particular case”. 14 In concluding her assessment of the s. 248 factors, the Board also noted that, although hundreds of migrants had been released from the Ocean Lady and Sun Sea, she had yet to hear of anyone breaching release conditions. 15 Noting that alternatives to detention had not been addressed at the hearing aside from the Minister’s submission that there were no reasonable alternatives, the Member invited the parties to make further submissions, and provided the parties with a five-minute recess to discuss that issue. The Board then ordered release on a $10,000 security deposit, plus other conditions (the Release Order).

VI. Analysis 16 Having considered the materials filed and the arguments of the parties, I am persuaded that the Member made material errors with respect to: (1) the security deposit; and (2) the effect of the outstanding PRRA application.

A. Issue #1: Security Deposit 17 The Minister argues firstly that the Member failed to assess the capacity of the proposed bondspersons to control the Respondent. Of course, there was no bond or guarantee put forward. Rather, the outcome of the detention review was a term of the Release Order that required a security deposit of $10,000. Under the terms of the Release Order, CBSA was to have oversight over the security deposit. 44 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

18 Whether a bond (or other guarantee) or a cash deposit, I believe that the issue is more properly described as whether the Member assessed the effectiveness of such deposit in reducing the flight risk as required under s. 248 of the Regulations. In other words, was the risk of loss of $10,000 likely to be an effective incentive for the Respondent to comply with the other conditions of his release? 19 In Canada (Minister of Citizenship & Immigration) v. Zhang, 2001 FCT 521 (Fed. T.D.) at paras 19, 22, [2001] F.C.J. No. 796 (Fed. T.D.), the Court explained the obligation to assess the effectiveness of a security deposit or performance bond as follows: [19] It appears that the theory behind the requirement for a security deposit or a performance bond is that the person posting the bond or deposit will be sufficiently at risk to take an interest in seeing that the releasee complies with the conditions of release including appearing for removal. From the point of view of the person who is to be released, the element of personal obligation to the surety is thought to act as an incentive to compliance[ ....] [22] In my view, the effect of a security deposit must be considered as part of the consideration of the question as to whether the detainee is likely to appear for removal. This in turn requires consideration of the character of the person posting the security since it is possible that the posting of security by certain elements will reduce the likelihood of the detainee appearing for removal. Consequently it was unreasonable for the adjudicator to order that the security deposit in this case could be posted by anyone. If he thought that security was required to ensure the appearance of the respondents for removal, he was required to direct his mind to the issue of the circumstances of the person putting up the deposit and their relationship to the respondent [....] 20 Although that case was decided under immigration legislation that preceded IRPA, the principles are equally applicable today. 21 In defending the Member’s decision, the Respondent points to the difference between a bond and cash deposit set out by Parliament in ss. 47(1) and 47(2) of the Regulations. 47. (1) A person who pays a deposit or posts a guarantee (a) must not have signed or co-signed another guarantee that is in default; and (b) must have the capacity to contract in the province where the deposit is paid or the guarantee is posted. (2) A person who posts a guarantee must Canada (MCI) v. B001 Judith A. Snider J. 45

(a) be a Canadian citizen or a permanent resident, physically present and residing in Canada; (b) be able to ensure that the person or group of persons in respect of whom the guarantee is required will comply with the conditions imposed; and (c) present to an officer evidence of their ability to fulfil the obligation arising from the guarantee. 47. (1) La personne qui fournit la garantie d’exécution: a) ne doit pas etreˆ signataire ou cosignataire d’une autre garantie en souffrance; b) doit avoir la capacité légale de contracter dans la province où la garantie d’exécution est fournie. (2) La personne qui fournit une garantie d’exécution, autre qu’une somme d’argent, doit: a)etre ˆ citoyen canadien ou résident permanent effectivement présent et résidant au Canada; b)etre ˆ capable de faire en sorte que la personne ou le groupe de personnes visé par la garantie respecte les conditions imposées; c) fournir a` un agent la preuve qu’elle peut s’acquitter de ses obligations quant a` la garantie fournie. 22 It is clear from these provisions that heightened requirements are in place for a guarantee. Only in s. 47(2) of the Regulations is there specific reference to a requirement that the guarantor be in a position to ensure compliance with any conditions imposed. The argument of the Respon- dent appears to be that, absent such a specific requirement for cash deposits, the Member can rely on an implicit inference that someone who puts up cash will be motivated to ensure compliance. 23 The Respondent’s reliance on the decision of the British Columbia Supreme Court in R. v. Saunders, 2001 BCSC 1363, 159 C.C.C. (3d) 558 (B.C. S.C.), to explain this difference is unhelpful; that case dealt with a Charter challenge to a provision of the Criminal Code that incidentally considered sureties in a bail proceeding. 24 The main problem with the Respondent’s reliance on the difference between a security deposit and a bond or guarantee is that he ignores the explicit direction of Parliament that the ID, where there is a flight risk, must consider all of the factors in s. 248 of the Regulations. The provisions of ss. 47(1) and 47(2) are noted as “General requirements” that apply to a number of sections of the Regulations and IRPA where guar- 46 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

antees and deposits may be required. These requirements may add to the obligations that arise elsewhere in IRPA or the Regulations but they cannot replace or reduce specifically-targeted or explicit provisions. 25 In this case, the Member was clearly obliged to consider all of the factors set out in s. 248. One of those factors is s. 248(e), which requires the Member to consider alternatives to detention. There is no question that a security deposit, bond or guarantee can reduce the risk that a detainee will not turn up for removal or meet the conditions of his release. However, regardless of the form of financial incentive, there must be a meaningful analysis by the Member of whether such financial incentive is more likely than not to achieve the desired “control”. If the Member does not review the source of the funds, I cannot see that this obligation is met.

B. Issue #2: Speculative finding on PRRA 26 In past detention reviews, other members of the ID consistently referred to the Respondent’s lack of credibility. His entry into Canada and subsequent interactions with officials have been fraught with lies and misrepresentations. It is na¨ıve and perverse of the Member to now say that, since the Respondent has been found inadmissible, his lies will stop and he will no longer have any motivation to flee. Indeed, logic would dictate that the reverse is more likely. Having been declared inadmissible and thus likely to be returned to Sri Lanka, what incentive does he have to show up to receive a PRRA? A positive PRRA will be in place whether or not he shows up to an appointment with CBSA officials whereas, faced with a negative PRRA, he will surely be arrested pending removal. I see no upside for the Respondent whatsoever in reporting in person for his PRRA. The Member’s reliance on this logic, put forward by the Respondent, is lacking in common sense and rationality. 27 As a result, I conclude that the Member did not, in this case, provide clear and compelling reasons for departing from the 20 earlier decisions. 28 I would make one further comment about the troubling reasoning of the Member with respect to the PRRA. The Member appears to have relied on the inability of the Minister to provide a timeline for the completion of the PRRA decision to conclude that the length of the detention was now “indefinite”. However, there is little reference in the Member’s reasons to the fact that the PRRA process is at this time likely controlled by the Respondent, who is seeking further information upon which to make further submissions. In my view, the reasons for the delay in the Canada (MCI) v. B001 Judith A. Snider J. 47

processing of the PRRA application are a relevant factor that may weigh against the Respondent. This is a matter that should be considered by the next member who hears the detention review.

VII. Conclusion 29 In conclusion, the Board committed two reviewable errors, either of which warrants the intervention of this Court. 30 I wish to make it clear that I am not saying that there are no terms or conditions upon which the Respondent could be released. As the reviewing judge, I must review each decision against the proper standard of review and the obligations imposed by the relevant legislative. On ex- actly the same facts, a different member of the ID could come to the same decision to release the Respondent. Hopefully, however, the reasons of that member would demonstrate that: (a) all factors of s. 248 of the Regulations have been analyzed; and (b) that the member has provided “clear and compelling” reasons for departing from previous detention decisions. 31 Because the Respondent will almost immediately have a new detention review hearing, as required by s. 57(2) of IRPA, no purpose would be served by remitting this matter to a different member of the Board for re-consideration. 32 Neither party proposed a question for certification.

Judgment THIS COURT ORDERS AND ADJUDGES that: 1. the application for judicial review is allowed; 2. the Release Decision is quashed; and 3. no question of general importance is certified. Application granted; release decision quashed. 48 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

[Indexed as: Utoh v. Canada (Minister of Citizenship & Immigration)] Helen Utoh, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-6120-11 2012 FC 399 Donald J. Rennie J. Heard: March 27, 2012 Judgment: April 10, 2012* Immigration and citizenship –––– Refugee protection — Credibility — Basis of negative credibility finding — General principles –––– Claimant from Ni- geria brought application for judicial review of Refugee Board’s decision denying her refugee protection — Application granted; matter referred back to board for reconsideration — Board’s finding that there was no evidence of claimant’s marriage to chief of her village was unreasonable because it was made without regard to all of evidence — Claimant’s testimony about her marriage to chief was corroborated by affidavit of friend of her husband — Affidavit also corroborated conflict between claimant’s village and another village, her flight to La- gos, and threatening calls from people of other village — Board’s failure to consider affidavit rendered its conclusion on credibility unreasonable. Immigration and citizenship –––– Refugee protection — Elements of protected refugee status — Protection of country of nationality — Internal flight alternative –––– Refugee Board found that internal flight alternative (IFA) was available to claimant from Nigeria and decided that she was not in need of protection — Claimant brought application for judicial review of board’s decision — Application granted; matter referred back to board for reconsideration — Board’s conclusion that claimant would not face persecution in another location in Nigeria was rendered unreasonable by its treatment of evidence about members of another village seeking her out in Lagos — Claimant testified that members of another village contacted her and threatened her in Lagos, and affidavit of friend of her husband corroborated this — Board’s consideration of whether it was reasonable to expect claimant to relocate within Nigeria was also unreasonable since it failed to consider claimant’s testimony

*A corrigendum issued by the court on January 14, 2013 has been incorporated herein. Utoh v. Canada (MCI) Donald J. Rennie J. 49

that she faced significant relocation challenges — Board failed to consider and apply gender guidelines with respect reasonableness for proposed internal flight alternative (IFA). Cases considered by Donald J. Rennie J.: Farias v. Canada (Minister of Citizenship & Immigration) (2008), 2008 FC 1035, 2008 CarswellNat 3385, 75 Imm. L.R. (3d) 31, [2008] F.C.J. No. 1292 (F.C.) — referred to New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1, 69 Admin. L.R. (4th) 1, 69 Imm. L.R. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) [2008] 1 S.C.R. 190, 844 A.P.R. 1, (sub nom. Dunsmuir v. New Brunswick) 2008 C.L.L.C. 220-020, D.T.E. 2008T-223, 329 N.B.R. (2d) 1, (sub nom. Dunsmuir v. New Brunswick) 170 L.A.C. (4th) 1, (sub nom. Dunsmuir v. New Brunswick) 291 D.L.R. (4th) 577, 2008 CarswellNB 124, 2008 CarswellNB 125, 2008 SCC 9, 64 C.C.E.L. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) 95 L.C.R. 65, [2008] S.C.J. No. 9, [2008] A.C.S. No. 9 (S.C.C.) — considered Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 72(1) — pursuant to s. 96 — referred to s. 97(1) — referred to Treaties considered: Convention Relating to the Status of Refugees, 1951, C.T.S. 1969/6; 189 U.N.T.S. 150 Generally — referred to

APPLICATION by refugee claimant for judicial review of decision denying her refugee protection.

Ochiemuan Okojie, for Applicant Nadine Silverman, for Respondent

Donald J. Rennie J.:

1 The applicant seeks judicial review, pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 (IRPA), of the decision of a Member of the Refugee Protection Division of the Im- migration and Refugee Board of Canada (the Board), dated August 11, 2011. The Board refused the applicant’s claim for refugee protection pursuant to section 96 and subsection 97(1) of the IRPA. The Board deter- 50 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

mined that the applicant is neither a Convention (United Nations’ Con- vention Relating to the Status of Refugees, [1969] Can TS No 6) refugee nor a person in need of protection. For the reasons that follow, the application is granted.

Facts 2 The applicant, Helen Utoh, is a citizen of Nigeria. She alleges that in March 2009, conflict between the applicant’s village, Amai, and the village of Umuebu resulted in death and destruction of property on both sides. The applicant’s husband, as one of the Chiefs of the village and several other members of their community were subsequently detained by the police for five months. Following their release the applicant’s husband was accused by the people of Umuebu of bribing the police to se- cure his release. The applicant’s husband then began to receive threats from the members of the Umuebu community that he and his family would be killed. He reported the matter to the police but the police did not investigate the complaint. 3 In August 2009, while returning home, the applicant saw armed youths attacking her village. When her own home was attacked she was able to escape to the bush but was separated from her husband and children. She was able to flee to Benin after flagging down a man on a mo- torcycle, and then on to Lagos, where she hid in the home of her husband’s friend. 4 While in the home of her husband’s friend in Lagos, she received threatening phone calls indicating that members of the Umuebu community knew where she and her family were hiding. Fearing for her safety the applicant fled Nigeria.

Decision Under Review 5 The Board found that the applicant was neither a Convention refugee nor a person in need of protection. The two issues considered by the Board were the applicant’s credibility and the availability of an Internal Flight Alternative (IFA).

Credibility 6 The Board was not persuaded that the applicant was married to the Chief of her village who, together with his family, was allegedly being threatened by the people of Umuebu. The Board noted that there was no Utoh v. Canada (MCI) Donald J. Rennie J. 51

evidence of the marriage other than a picture from 1987 with a man holding a child. 7 The Board was also not persuaded that the applicant’s husband, together with his family, was threatened based on the lack of a police report or other evidence supporting the allegation. 8 Finally, the Board found it implausible that the applicant had received threatening calls while staying with her husband’s friend in Lagos. The Board noted that there was no evidence that the calls came from members of the Umuebu community and found it improbable that if they wanted to harm the applicant and her family they would call first, thereby warning them of their intent.

Internal Flight Alternative 9 The Board found that, on a balance of probabilities, there was no serious possibility of the applicant being persecuted if she were to move away from her home village, which appeared to be the only area where problems occurred. The Board was not persuaded that she had been discovered in Lagos and noted that there was no evidence to suggest that the people of Umuebu would pursue, or even be interested in, her if she were not to return to her home village. The Board found that the applicant could relocate in other areas within Nigeria such as Ibadan or Benin City. 10 As to the reasonableness of the relocation, the Board found that despite the applicant’s basic education level, she has managed to establish herself in a foreign country, namely Canada, and therefore found that the applicant should be able to relocate relatively easily in her own native country.

Issues and Standard of Review 11 The Supreme Court of Canada held in New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9, [2008] 1 S.C.R. 190 (S.C.C.), that where the standard of review has been previously determined, a standard of review analysis need not be repeated. Questions of credibility and the viability of an IFA are questions of mixed law and fact to be determined on a standard of reasonableness. 52 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

Analysis 1. Was the Board’s credibility determination reasonable? 12 One of the key elements of the applicant’s story that was disbelieved by the Board was the fact that the applicant was married to the Chief of her village. The Board stated that there was no evidence of the marriage other than a picture from 1987 with a man holding a child. 13 This finding was unreasonable because it was made without regard to all the evidence before the Board. The picture was not the only evidence of the applicant’s marriage. There was also her testimony about the marriage, including that she had no documentary proof because it was a traditional marriage, and there was an affidavit sworn by Emmanuel Eke, the friend of the applicant’s husband with whom she had stayed while in Lagos. In his affidavit, Mr. Eke makes it clear that the applicant was married to Chief Fred Utoh, the affiant’s close friend. Mr. Eke also cor- roborates the applicant’s claim that people suspected to be members of the Umuebu community made threatening calls while the applicant was staying with Mr. Eke in Lagos. 14 While it was undoubtedly open to the Board to consider this evidence and grant it little probative weight, it was not open to the Board to disregard it altogether. In particular, the failure to expressly consider Mr. Eke’s affidavit renders the Board’s conclusion on credibility unreasonable. The affidavit it corroborated not only the fact that the applicant was married to the Chief, but also the conflict between the villages, the applicant’s flight to Lagos, and the threatening calls from the people of Umuebu. Without any consideration of this evidence, I find that the Board’s negative credibility finding is unreasonable.

2. Was the Board’s IFA finding reasonable? 15 In order to grant the application the decision must also not be able to be upheld on the basis of its conclusion that the applicant had a viable IFA. I find that the Board’s IFA analysis is also unreasonable and therefore the decision must be set aside. 16 First, the Board’s conclusion that the applicant would not face persecution in another location in Nigeria is rendered unreasonable by its treatment of the evidence regarding members of Umuebu seeking her out in Lagos. The Board stated that there was “no evidence to suggest that the people of Umuebu would pursue or even be interested in her if she were not to return to her home village.” This statement is incorrect as the Utoh v. Canada (MCI) Donald J. Rennie J. 53

applicant testified that members of Umuebu contacted her and threatened her in Lagos, and Mr. Eke’s affidavit also states that members of Umuebu came looking for the applicant there. This finding therefore cannot stand. Either the Board has again failed to consider the evidence before it, or it is relying on its earlier negative credibility findings, which I have already found unreasonable. 17 The Board’s consideration of whether it was reasonable to expect the applicant to relocate within Nigeria is also unreasonable. The sole finding by the Board on this point is that the applicant has “managed to establish herself in a foreign country, namely, Canada”, and therefore “should be able to relocate relatively easily in her own native country.” I am uncertain what the Board means by the applicant’s “establishment” in Canada, or what evidence was relied on for that statement, but the extent to which the applicant has settled in Canada is irrelevant to the question before the Board. The applicant testified that she faced significant social, economic and cultural challenges relocating alone in a new city in Nige- ria, but this issue was not considered by the Board. Therefore, the application must be granted. 18 Furthermore, the Board failed to consider and apply the Chairper- son’s Guidelines, Guideline 4 — Women Refugee Claimants Fearing Gender-Related Persecution (Gender Guidelines) in its analysis of the reasonableness of the proposed IFA locations. The Gender Guidelines expressly direct decision-makers to consider the claimant’s gender in determining the reasonableness of a proposed IFA: In determining the reasonableness of a woman’s recourse to an internal flight alternative (IFA), decision-makers should consider the ability of women, because of their gender, to travel safely to the IFA and to stay there without facing undue hardship. In determining the reasonableness of an IFA, the decision-makers should take into account factors including religious, economic, and cultural factors, and consider whether and how these factors affect women in the IFA. [Emphasis in original] 19 The Board made no reference to considering the Gender Guidelines in its decision and its analysis of IFA confirms that it failed to consider how the applicant’s gender would impact the reasonableness of the proposed IFA. 20 Finally, a review of the hearing transcript reveals that one of the IFA locations relied on the decision, Idaban, does not appear to have been 54 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

specifically identified by the Board as a proposed IFA and, more importantly, put to the applicant as a possible IFA. The jurisprudence is clear that the Board must identify the specific IFA locations; Farias v. Canada (Minister of Citizenship & Immigration), 2008 FC 1035 (F.C.) at para 34, and fairness requires that the applicant have an opportunity to address its suitability. Therefore, this error also requires that the decision be set aside. 21 The application is granted, the decision is set aside and the matter is referred back to the Board for re-determination by a different panel.

Judgment THIS COURT’S JUDGMENT is that the application is granted, the decision is set aside and the matter is referred back to the Board for redetermination by a different panel. Application granted; matter referred back to Refugee Board for reconsideration. Diongson v. Canada (MCI) 55

[Indexed as: Diongson v. Canada (Minister of Citizenship & Immigration)] Fe Villaneuva Diongson, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-258-11 2012 FC 264 Russel W. Zinn J. Heard: February 22, 2012 Judgment: February 28, 2012 Immigration and citizenship –––– Admission — Application for temporary resident or immigrant visa — Powers and duties of visa or immigration officer — Relevant considerations –––– Foreign national was citizen of Philip- pines who came to Canada under live-in caregiver program — Person who had purported to have arranged foreign national’s employment had actually perpe- trated fraud — Foreign national reported fraud and person was investigated — Foreign national found bona fide position and submitted new application for work permit under program — Visa officer rejected application due to, inter alia, foreign national not having been bona fide worker since her arrival — For- eign national brought application for judicial review — Application granted; matter remitted for redetermination — Officer’s decision was unreasonable due to failure to consider foreign national’s experiences subsequent to discovery of fraud — Officer had clearly erred in claiming foreign national had not explained problems with employment and had not sought other employment — Officer’s finding that foreign national had not been bona fide worker since her arrival was especially puzzling since foreign national had not claimed to have been — Of- ficer’s decision had been made without regard to material before her. Cases considered by Russel W. Zinn J.: Nazir v. Canada (Minister of Citizenship & Immigration) (2010), 2010 Car- swellNat 2246, 2010 CF 553, 89 Imm. L.R. (3d) 131, 2010 CarswellNat 1421, 2010 FC 553, 369 F.T.R. 77 (Eng.), [2010] F.C.J. No. 655 (F.C.) — considered

APPLICATION by foreign national for judicial review of decision of visa officer rejecting application for work permit under live-in caregiver program.

Aisling Bondy, for Applicant Prathima Prashad, for Respondent 56 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

Russel W. Zinn J.:

1 For the reasons that follow, this application is allowed and the decision of a Non-Immigrant Officer of the Consulate General of Canada in Buffalo, New York (the officer), dated November 10, 2010, refusing the applicant’s application for a work permit under the live-in caregiver program (LCP), is set aside. 2 The applicant, a citizen of the Philippines, was the victim of a fraud. In 2005, she was recruited by Ms. Fe Malab, to whom she ended up paying US$6,000 to apply under the LCP and obtain a Labour Market Opin- ion (LMO). When her LCP application was approved, she met with Ms. Malab and asked about her employer in Canada, but was told by her that she did not know who the employer would be yet, and if the immigration asked her she should make up answers. The applicant tried to call the employer listed on her LMO, but there was no answer. 3 The applicant arrived in Canada on June 14, 2007. She traveled by taxi to the address listed for her employer and discovered that it was Ms. Malab’s home, and there were more than 20 other Filipino women living there. The applicant asked Ms. Malab the following day about her employer, and Ms. Malab told her to relax, and it was not time to start her job yet, and eventually told her she had been ‘released on arrival’ and would need to find another position. 4 The applicant states that Ms. Malab evaded all her requests to place her with an employer as a live-in caregiver once she arrived in Canada. Instead, she repeatedly lied to the applicant, telling her that she could obtain her permanent residence in other ways, and work in part-time jobs Ms. Malab found for her, such as in factories or cleaning. Ms. Malab began to charge her $300 a month to live in her house. Each time she asked for a legitimate work placement, Ms. Malab extorted more money from her. Eventually, the applicant refused to pay Ms. Malab any more money. 5 Through the Caregivers’ Action Center, the applicant eventually met with a lawyer and immigration consultant, and learned that what Ms. Malab had been doing, and encouraging the applicant to do, was illegal. In September 2009, the applicant made a complaint to the Canada Border Services Agency about Ms. Malab and others. A warrant was subsequently issued for Ms. Malab, and her house was raided. 6 In November 2009, the applicant was interviewed in relation to her application for a temporary resident permit (TRP) on the basis that she Diongson v. Canada (MCI) Russel W. Zinn J. 57

was a victim of trafficking. That application was refused at the end of the interview (TRP decision). The Field Operation Support System notes (FOSS notes) for the TRP decision were relied on by the officer in this case. 7 The applicant found a position as a live-in caregiver with another family. She obtained a new LMO, and applied for a work permit under the LCP. In a decision letter dated November 10, 2010, the officer stated that the applicant did not meet the requirements for a work permit and provided the following reasons for the refusal: You arrived to Canada in June 2007 with a work permit issued to you pursuant to the Live-in Caregiver Program. Since your initial arrival, you have continued to remain in Canada, have applied for extensions of the work permits, changing employers on at least one occasion. No mention or proof has been provided to indicate or explain the reason(s) for your change/termination of employers or duration of any employment in Canada. Insufficient evidence has been presented to satisfy me of any efforts made to locate employment in Canada. I am not satisfied that you are a bona fide temporary worker. You have not satisfied me that you will leave Canada by the end of the period authorized for your stay. The officer recorded the following in the Computer Assisted Immigra- tion Processing System (CAIPS) notes, dated November 10, 2010: THE APPLICANT HAS FAILED TO PROVIDE EVIDENCE OF ANY LCP RELATED EMPLOY IN CDA. SHE HAS ADMITTED IN PREVIOUS FOSS NOTES TO INTENTIONALLY MIS- REPESENTING [sic] HERSELF (ENCOURAGED BY HER RE- CRUITER). SHE HAS ACKNOWLEDGED THAT SHE WAS AWARE SHE NEEDED TO WORK IN CDA TO MEET THE RE- QUIREMENTS FOR THE WORK PERMIT7 [sic] LIVE IN CAREGIVER PRORGRAM. SHE HAS FAILED TO SATISFY ME THAT SHE HAS BEEN A BOANFIDE [sic] WORKER IN CDA SINCE JUN2007. I HAVE TAKEN INTO CONSIDERATION THE TREATMENT SHE HAS DESCRIBED FROM HER RECRUITER. HOWEVER, THE APPLICANT HAS INDICATED IN FORMAL INTERVIEW WITH ETOBICOKE THAT SHE WAS AWARE OF THE PROGRAM REQUIREMENTS REGARDING EMPLOY- MENT. SHE HAS NOT PROVIDED EVIDENCE TO SATISFY ME THAT SHE MADE ANY EFFORTS TO FIND EMPLOY- MENT ON [sic] CDA. 58 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

8 The applicant challenges the decision on a number of grounds; however, in my view, it is necessary to deal only with whether the officer’s decision was reasonable and I agree with the applicant that it was not. 9 In Nazir v. Canada (Minister of Citizenship & Immigration), 2010 FC 553 (F.C.), Justice de Montigny stated at paragraph 20: “Visa officers assessing live-in caregiver permits have a duty to take into consideration an applicant’s explanation and to explain why they reject such explanations.” In this case, the officer paid no more than lip-service to the applicant’s explanations for the irregularities in her work history since arriving in Canada, namely, that she had been a victim of a fraud. 10 The officer acknowledged in cross-examination that in making her decision she relied heavily on the FOSS notes; however, I find that most of the findings upon which the officer based her decision were made without regard to that evidence. The officer found in her decision that: (i) there was no explanation for the applicant’s change and termination of employers or duration of employment in Canada; (ii) there was insufficient evidence to satisfy the officer of any efforts she made to locate employment in Canada; and (iii) the applicant had not proven that she was a bona fide worker in Canada since June 2007. 11 The FOSS notes contain a detailed account of the applicant’s story, including: her arrival in Canada; her discovery that she did not have the position she was promised; her efforts to find other employment; and a list of all her places of employment since arriving in Canada. The first two findings listed above are directly contradicted by a review of the record. 12 The officer’s finding that the applicant had not proven that she was a bona fide worker since June 2007 is especially puzzling as the applicant did not claim to have been a bona fide worker since 2007. She explained that the job for which she received her initial work permit turned out not to exist. She also explained that she had been continually misled by Ms. Malab about the legality of working outside her permit, and about the proper process to obtain permanent residence. I can only conclude from the officer’s reasons that she failed to consider the applicant’s explanations that were in the FOSS notes she consulted. As a consequence, I find that the officer’s findings were made without regard to the material before her, and the decision must be set aside. 13 Neither party proposed a question for certification. There is none on the facts of this application. Diongson v. Canada (MCI) Russel W. Zinn J. 59

Judgment THIS COURT’S JUDGMENT is that this application is allowed, the decision of the Non-Immigrant Officer of the Consulate General of Can- ada in Buffalo, New York, dated November 10, 2010, refusing the applicant’s application for a work permit under the live-in caregiver program is set aside, and her application is referred to another officer for a redetermination. No question is certified. Application granted; matter remitted for redetermination. 60 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

[Indexed as: Palomo Diaz c. Canada (Ministre de la Citoyenneté & de l’Immigration)] Miriam Nataly Palomo Diaz, demandeur et Le Ministre de la Citoyenneté et de l’Immigration et Le Ministre de la Sécurité Publique, défendeurs Cour fédérale Docket: IMM-3616-12 2012 FC 475 Michel M.J. Shore J. Heard: April 23, 2012 Judgment: April 23, 2012 Immigration and citizenship –––– Exclusion and removal — Removal from Canada — Removal orders — Stay of execution –––– Applicant was subject to removal from Canada — Applicant was young woman who had been subject to severe physical abuse in Canada by her husband who had caused premature birth of her child — Child had been conceived as result of gang rape of applicant — Husband had been charged with assault and death threats — Applicant sought stay of removal order pending determination of humanitarian and compassionate application — Application was granted — Applicant had no one to whom to turn in her country of origin — If returned, with no source of income, no home, no social benefits and no health care for child, serious peril would prevail for both applicant and child.

APPLICATION for stay of removal order pending pending determination of humanitarian and compassionate application.

William Sloan, for Applicant Michel P´epin, for Respondents

Michel M.J. Shore J.:

1 Subject to removal from Canada, the applicant has requested of this Court, a stay of removal until a final determination has been reached in respect of humanitarian considerations. 2 This case, simply stated, as credibility is not an issue herein, is one of a young woman, the applicant, who had been subject to severe physical abuse in Canada by her alcoholic husband, who had caused the prema- Palomo Diaz c. Canada (MCI) Michel M.J. Shore J. 61

ture birth of a child (not his own); he had outwardly stated that he did not care if the child was lost. 3 The child, unwell and carefully followed with medical treatment, was conceived in circumstances wherein the young woman had been raped by a member of a criminal street gang who had threatened the woman if she did not abort the foetus. 4 In addition, a criminal case is pending against the woman’s husband for assault and death threats; divorce proceedings have been initiated. 5 In her country of origin, the woman has no one to whom to turn. Both, she and her child, in a most fragile state, have resided in shelters in Canada. If returned, with no source of income, no home, no social benefits and no health care for the child, in a precarious delicate state, according to the evidence, serious peril would prevail for both mother and child. 6 In certain exceptional cases, unto themselves, due to time spent and situations arisen in Canada wherein hearings have run their course, at each instance and ultimately all that remains prior to removal, in a near future, is the sole consideration by the Minister, and not that of the Court on the issue of humanitarian considerations; very little choice appears in such exceptional cases to the three branches of government of which the Court is only one branch and, thus, must recognize itself as one, solely able to act, but within its own jurisdiction. 7 In these certain cases, ultimately, when the jurisprudential gamut has almost run its course, very little choice remains in the humanitarian tradition of jurisprudential interpretations, present legislative largesse, as well as executive branch policy humanitarian understanding of undertakings then put into effect. 8 Thus, Canada becomes the recipient of the challenges of humanitarian concerns in cases such as this one. That is due to certain countries of origin, being either of a tyrannical variety or because the governments and authorities in power in certain other countries have lost control to criminal elements, including drug and human cargo smuggling cartels (as per the documentation). In such cases in certain areas of countries, crime has run amok and the population is held hostage, and of whose victims, Canada (and other democratic countries) become the recipient. 9 Until some other national or international legislative provisions or legislative instruments (and policy) solutions are found, for a greater sharing of the humanitarian necessities, certain countries, such as Canada 62 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

act to alleviate humanity’s burden because of Canada’s moral policies re humanitarian considerations (not often found in other countries), translated into legislative provisions and majority jurisprudential interpretations. 10 Until such time that either the situation changes, if ever, or a rethink- ing takes place in respect of the three branches of the government, Can- ada and certain other countries as per the legislation and jurisprudential interpretation, pick up humanity’s broken individuals in an attempt to make them whole by its notion of humanitarian considerations. 11 For all the above reasons, due to the exceptional facts of this case, a case unto itself, the criteria of the tripartite conjunctive Toth decision are fully met by the applicant, requesting a stay of proceedings so as not to be deported with her child to her country of origin prior to the conclusion in this matter of the humanitarian considerations having been fully determined in the applicant’s case.

Order THIS COURT ORDERS that the application for a stay of removal be granted; thus, the deportation order re the 30th of April 2012, be stayed until a final determination be reached in file IMM-3616-12, in regard to the humanitarian considerations in respect of the applicant. Application granted. Lewis v. Canadian Society of Immigration Consultants 63

[Indexed as: Lewis v. Canadian Society of Immigration Consultants] Claudio Calvin Lewis, Applicant and The Canadian Society of Immigration Consultants, Respondent Federal Court Docket: T-2082-10 2012 FC 817 Andr´e F.J. Scott J. Heard: April 17, 2012 Judgment: June 26, 2012 Professions and occupations –––– Miscellaneous –––– Immigration consultant was member of Canadian Society of Immigration Consultants (CSIC) — Con- sultant failed to pay his annual membership fees when they became due in 2010 — Consultant also failed to fulfil continuing professional development requirement — CSIC suspended consultant’s membership for non-compliance with membership requirements — Consultant never made payment, so CSIC revoked his membership — Consultant brought application for judicial review — Application dismissed — Consultant failed to establish breach of procedural fairness, and decision to revoke his membership was reasonable — Suspension for failure to pay membership fees was administrative in nature — Requisite procedural fairness was consequently low — There was no necessity for hearing — CSIC’s regulations were clear — Consultant had been provided with prior notice in writing and forewarned of consequences — Consultant had clearly not remedied his default — Judicial review was not appropriate forum for disputing imposition of reinstatement fees. Cases considered by Andr´e F.J. Scott J.: College of Physicians & Surgeons (Ontario) v. Wilson (2003), (sub nom. Wilson v. Discipline Committee of the College of Physicians and Surgeons (Ont.)) 178 O.A.C. 258, 2003 CarswellOnt 4360, [2003] O.J. No. 4236 (Ont. Div. Ct.) — considered Mooney v. Canadian Society of Immigration Consultants (2011), 2011 CF 496, 2011 CarswellNat 3248, 99 Imm. L.R. (3d) 198, 2011 FC 496, 2011 Car- swellNat 1545, 235 C.R.R. (2d) 41, 389 F.T.R. 8 (Eng.) (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, 64 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

(sub nom. Dunsmuir v. New Brunswick) 170 L.A.C. (4th) 1, (sub nom. Dunsmuir v. New Brunswick) 291 D.L.R. (4th) 577, 2008 CarswellNB 124, 2008 CarswellNB 125, 2008 SCC 9, 64 C.C.E.L. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) 95 L.C.R. 65, [2008] S.C.J. No. 9, [2008] A.C.S. No. 9 (S.C.C.) — considered Statutes considered: Canada Corporations Act, R.S.C. 1970, c. C-32 Generally — referred to Federal Courts Act, R.S.C. 1985, c. F-7 s. 18 — pursuant to Immigration and Refugee Protection Act, S.C. 2001, c. 27 Generally — referred to s. 91 — referred to s. 91 [rep & sub. 2011, c. 8, s. 1] — referred to Regulations considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Immigration and Refugee Protection Regulations, SOR/2002-227 s. 2 — referred to s. 13.1(a) [en. SOR/2012-77] — referred to

APPLICATION by immigration consultant for judicial review of decision of Canadian Society of Immigration Consultant’s revoking consultant’s membership for non-payment of membership fees.

Claudio Calvin Lewis, Applicant, for himself Visha Sukdeo, for Respondent

Andr´e F.J. Scott J.: I. Introduction 1 Claudio Calvin Lewis (Mr. Lewis) brings this application for judicial review of the decision rendered by Jessika R. Morelli, Manager of Mem- bership Registrations and Approvals of the Canadian Society of Immi- gration Consultants [CSIC], pursuant to section 18 of the Federal Courts Act, RSC 1985, c F-7. In that decision, dated November 18, 2010, the CSIC suspended Mr. Lewis’ membership in the CSIC for non-compliance of the full membership requirements. As a result, Mr. Lewis was removed from the Membership List and placed on the Suspended Mem- bers List. His membership was revoked effective June 14, 2011. 2 For the following reasons, this application is dismissed. Lewis v. Canadian Society of Immigration Consultants Andr´e F.J. Scott J. 65

II. Factual background A. Parties 3 Mr. Lewis is a paralegal. He joined the CSIC on January 23, 2004 and became a full member on July 19, 2006. 4 The CSIC is a non governmental organization, incorporated without share capital under the Canada Corporations Act, RSC 1970, c C-32. By regulation under the Immigration and Refugee Protection Act, SC 2001, c 27, [IRPA], members of the society used to be recognized as “authorized representatives” who may appear in immigration proceedings and charge for their services (see Section 2 and subsection 13.1(1) of the regulations of the IRPA in effect since 2004). In 2011, bill C-35 amended section 91 of the IRPA. 5 The CSIC is governed by the applicable legislation, its by-laws and its letters patent. The CSIC’s mandate is to regulate in the public interest, members of the CSIC, as determined by its policies and procedures. 6 Pursuant to its mandate, the Society enacted by-laws, created policies and established a Continuing Professional Development [CPD] program.

B. Facts 7 On March 31, 2004, Mr. Lewis signed an application package which included an Intent to Register form wherein he agreed to “abide by the Letters Patent, By-laws, and Rules, Regulations and Policies (including, without limitation, the Rules of Professional Conduct) established by CSIC, from time to time and as amended from time to time and the authority of CSIC with respect to its members” (see Exhibit D of the Affi- davit of Jessika Morelli at page 92 of the Respondent’s Record). 8 Mr. Lewis’ first installment for his 2010-2011 membership fees was due on November 1, 2010. 9 On November 5, 2010, Mr. Lewis was informed by email that his credit card was declined for payment of his membership fees (see Exhibit E of the Affidavit of Jessika Morelli at page 94 of the Respondent’s Record). 10 His cheque for his mandatory CPD video payment was returned with the mention “without provisions” as well. He was informed of the situation on November 8, 2010 (see Exhibit E of the Affidavit of Jessica Morelli at page 95 of the Respondent’s Record). 66 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

11 On November 9, 2010, Mr. Lewis called Ms. Jie Li, the Society’s Finance Manager, and promised to effect his payment on November 11, 2010 at the Society’s offices. Mr. Lewis never made the payment. 12 On November 18, 2010, Ms. Li referred Mr. Lewis’ file for suspension, to Ms. Jessika Morelli, the Society’s Manager of Membership Re- gistrations and Approvals. According to Ms. Morelli, Mr. Lewis failed to take any remedial measures for his non payment of membership fees and also failed to complete his mandatory CPD. 13 Mr. Lewis’ membership was suspended on November 18, 2010. 14 The CSIC’s decision reads as follows: Dear Mr. Lewis, Your membership has been referred by the Accounting Department to be suspended for non compliance of membership fees and not meeting the 2010 CPD deadline, therefore not meeting the Full Membership requirements. As a result, your name has been removed from the Membership List and placed on the Suspended Members List effective November 18, 2010. Please be advised that if you do not remedy your breach and submit the $750.00 plus HST reinstatement fee by December 18, 2010, at 5pm EST, the Society may revoke your membership pursuant to By- law 10.20(a). If you wish to reapply with the Society, note that you will be applying for membership under the new criteria. As of April, 13, 2006, only graduates from the accredited program will be eligible to apply for membership. Full Membership examination results are valid for a period of one year from the date that the examination was successfully passed and your language examination results are only valid for two years from the date that the examination was successfully passed. If the one year time period has lapsed, you will be required to re-write and successfully pass the examination in order to bring your membership into good standing as well as pay all the necessary fees as stated above. Should you have any questions or concerns regarding the Suspension Policy, please contact me immediately. Please govern yourself accordingly, Respectfully, Jessika R. Morelli 15 On December 16, 2010, Mr. Lewis filed an application for judicial review of his suspension before the Federal Court of Canada. Lewis v. Canadian Society of Immigration Consultants Andr´e F.J. Scott J. 67

16 On April 29, 2011, the CSIC informed Mr. Lewis he had to pay an outstanding amount of $4,843.28 for reinstatement (see Exhibit C of the Affidavit of Claudio C. Lewis at page 17 of the Applicant’s Record). 17 Mr. Lewis’ membership was revoked on June 13, 2011 (see Exhibit D of the Affidavit of Claudio C. Lewis at page 19 of the Applicant’s Record).

III. Legislation 18 By-laws 10.19 and 10.20 of the Canadian Society of Immigration Consultants [CSIC] provide as follows: 10.19 Suspension of Membership The membership of a Transitional Member, Full Member or Student Member shall be suspended: (a) if the Member fails to submit required membership dues, fees, assessments or other sum levied or payable by the Mem- ber to the Society or fails to submit any form, return or other information required by the Society within thirty (30) days of the due date of same or at another date mutually agreed upon by the Society and the Member; or (b) if the Member publishes a notice of intention to resign on the Society’s website in accordance with By-law 10.17(d) and fails to submit an Application to Resign to the Society within sixty (60) days of the publication of such notice or if the Member submits an Application to Resign to the Society and fails to meet the requirements of By-law 10.17 within sixty (60) days of notice from the Society to the Member that he or she has failed to do so; or (c) upon such time as a disciplinary or administrative action against a Member by the Society results in the suspension of the Member’s membership. 10.20 Revocation of Membership The membership of a Transitional Member, full Member or Student Member shall be revoked: (a) when the Member fails to submit required membership dues, fees, assessments or other sum levied or payable by the Mem- ber to the Society or fails to submit any form, return or other information required by the Society within sixty (60) days of the due date of same or at another date mutually agreed upon by the Society and the Member, provided that a Member may be reinstated as a Member if he or she makes payment in full 68 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

of all amounts owing to the Society and submits all forms, returns and other information required by the Society within one (1) year of the due date of same; or (b) upon such time a disciplinary or administrative action against a Member by the Society results in the revocation of the Member’s membership. A Member whose Membership in the Society has been revoked may re-apply for Membership in accordance with the By-laws and the policies and procedures established and amended by the Society from time to time. 10.19 Suspension de l’adhésion L’adhésion d’un membre transitoire, d’un membre a` part entière ou d’un membre etudiant´ est suspendue dans les cas suivants: a) si le membre n’acquitte pas les frais d’adhésion, les droits, les cotisations ou les autres sommes applicables qu’il doit a` la Société ou ne remet pas a` la Société un formulaire, une décla- ration ou d’autres renseignements que celle-ci exige dans les trente (30) jours suivant la date d’exigibilité de ces el´´ ements ou a` toute autre date dont la Société et le membre auront convenu mutuellement; b) le membre publie un avis de son intention de démissionner sur le site Web de la Société conformément a` l’alinéa d) du règlement 10.7 et ne remet pas une demande de démission a` la Société dans les soixante (60) jours suivant la publication de cet avis ou le membre présente une demande de démission a` la Société et ne respecte pas les exigences du règlement 10.17 dans les soixante (60) jours suivant l’avis que la So- ciété lui fait parvenir a` cet effet; c) au moment où des mesures disciplinaires ou administratives que la Société prend a` l’encontre d’un membre entraˆınent la suspension de l’adhésion de celui-ci. 10.20 Révocation de l’adhésion L’adhésion d’un membre transitoire, d’un membre a` part entière ou d’un membre etudiant´ est révoquée dans les cas suivants: a) lorsque le membre n’acquitte pas les frais d’adhésion, les droits, les cotisations et les autres sommes applicables qu’il doit a` la Société ou ne remet pas a` la Société un formulaire, une déclaration ou d’autres renseignements que celle-ci exige dans les soixante (60) jours suivant la date d’exigibilité de ces el´´ ements ou a` toute autre date dont la Société et le membre Lewis v. Canadian Society of Immigration Consultants André F.J. Scott J. 69

auront convenu mutuellement; toutefois, un membre peut etreˆ réintégré a` ce titre s’il acquitte intégralement toutes les sommes dues a` la Société et remet a` la Société tous les formu- laires, déclarations et autres renseignements que celle-ci exige dans un délai de un (1) an suivant la date d’exigibilité de ces el´´ ements; b) au moment où des mesures disciplinaires ou administratives que la Société prend a` l’encontre d’un membre entraˆınent la révocation de l’adhésion de celui-ci. Le membre dont l’adhésion a` la Société a et´´ e révoquée peut faire une nouvelle demande d’adhésion conformément aux règlements ad- ministratifs et aux politiques et méthodes etablies´ par la Société et modifiées par celle-ci au besoin.

IV. Issues and Standard of review A. Issues 1. Did the CSIC breach its duty of procedural fairness? 2. Was the CSIC’s decision to revoke Mr. Lewis’ membership reasonable?

B. Standard of review 19 The first issue is a question of procedural fairness that must be reviewed on a standard of correctness (Mooney v. Canadian Society of Immigration Consultants, 2011 FC 496 (F.C.) at para 127). 20 As for the second issue, the Supreme Court of Canada held in New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9 (S.C.C.) at para 53, that “where [a] question is one of fact, discretion or policy, deference will usually apply automatically”. The decision under review is an administrative action taken pursuant CSIC’s policies and by-law. Conse- quently, the CSIC’s decision must be reviewed under a reasonableness standard.

V. Parties’ submissions A. Mr. Lewis’ submissions 21 In his affidavit, Mr. Lewis alleges that “40 percent or approximately 890 of CSIC members’ licences were revoked. Of that amount almost 95 percent of the revocations are due [to] failure to pay fees and finance educational upgrading” (see the Affidavit of Claudio C. Lewis at page 7 of the Applicant’s Record). Mr. Lewis submits that the CSIC’s decision 70 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

to suspend and revoke his membership and to demand a reinstatement fee of $750.00 is unreasonable. 22 At the hearing, Mr. Lewis acknowledged being in default of his obligations with respect to payment of his membership fees and CPD but alleged that the Court should intervene because the reinstatement fees were exorbitant and that he was not afforded due process before being suspended and then revoked. 23 Mr. Lewis further affirms that the revocation of his licence for a non- disciplinary breach is a harsh penalty. He relies upon College of Physicians & Surgeons (Ontario) v. Wilson, [2003] O.J. No. 4236 (Ont. Div. Ct.) at para 12, where the Ontario Divisional Court of Ontario expressed the following in one of its previous decisions: The discipline committee of a professional body is charged with a public responsibility to ensure and maintain high standards of professional ethics and practice. The penalty imposed by it against a member for professional misconduct, as has often been said, is not to be lightly interfered with. The committee in the proper discharge of its function is best able to assess the gravity of the misconduct, and its consequences to the public and the profession. Unless there is error in principle, unless the punishment clearly does not fit the crime, so to speak, a Court sitting in appeal ought not to disturb the penalty and substitute its judgment for that of the committee [see Takahashi v College of Physicians and Surgeons of Ontario (1980), 102 DLR (3d) 695]. 24 Furthermore, Mr. Lewis argues that the CSIC denied him procedural fairness as it revoked his licence without affording him the opportunity to dispute the revocation through an appeal process or at least a hearing. The CSIC therefore breached its duty of procedural fairness.

B. The CSIC’s submissions 25 The CSIC’s by-laws and policies were enacted pursuant to its sub- delegated legislative authority. There is no evidence in the present case to demonstrate that the CSIC’s By-laws were adopted in bad faith. 26 Moreover, Mr. Lewis alleges a breach of procedural fairness but does not set out the content of these rights. The CSIC submits that Mr. Lewis was provided with numerous opportunities to comply with the membership requirements and was afforded the opportunity to remedy his default. Lewis v. Canadian Society of Immigration Consultants Andr´e F.J. Scott J. 71

27 The circumstances of the revocation did not give rise to a hearing according to the CSIC who argues that by failing to adhere to its policy or rules, the by-law, on its own, attracts consequences. It further alleges that Mr. Lewis failed to file a demand for assistance as provided for by the By-law. 28 The CSIC submits that its decision was merely based on the requirements of the by-law. It clearly did not fail to consider evidence nor did it make perverse or capricious findings of facts. 29 At the hearing, counsel for the Respondent also submitted there is a certain mootness to Mr. Lewis’ application further to the enactment of amendments to section 91 of IRPA, in that Mr. Lewis being a paralegal in good standing with the Law Society of Upper Canada can now practice on immigration issues irrespective of his membership in CSIC.

VI. Analysis 1. Did the CSIC breach its duty of procedural fairness? 30 Mr. Lewis argues that the CSIC breached its duty of procedural fairness because it failed to provide him with an opportunity to challenge the revocation of his membership. He adds that most of the revocations are attributable to economic reasons. 31 The decision to suspend a member for failure to pay membership fees is administrative in nature. It therefore commands a low duty in terms of procedural fairness. In the present case, there was no necessity for a hearing contrary to Mr. Lewis’ submission. The CSIC’s regulations are clear: Mr. Lewis received prior notice in writing and was forewarned of the consequences of his failure. 32 The Court finds there was no obligation to hold a hearing in the present circumstances. 33 Furthermore, the Member Assistance Policy of the CSIC provides that “the Membership Committee in conjunction with the Treasurer of the Board may waive, delay and/or reduce the payment of a member’s annual membership fee upon a sufficient showing of hardship, as defined below. For the purposes of this policy, “hardship” means an economic inability to pay dues as the result of a medical condition, mental condition, pregnancy/parental leave or an involuntary change in economic status” (see Exhibit C of the Affidavit of Jessika Morelli at page 78 of the Respondent’s Record). 72 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

34 The Policy affords members the opportunity to ask for a waiver, delay or reduction of payable fees. In the present case, Mr. Lewis failed to avail himself of this opportunity. Before the Court, Mr. Lewis stated he was not aware of the existence of that policy and that it was incumbent on the CSIC to inform him of the policy. 35 The Court cannot accept such a proposition. There is no legal obligation on the part of the CSIC to that effect. 36 For these reasons, the Court finds that the CSIC did not breach its duty of procedural fairness towards Mr. Lewis.

2. Was the CSIC’s decision to revoke Mr. Lewis’ membership reasonable? 37 The CSIC’s decision to revoke Mr. Lewis’s membership was reasonable. As the CSIC noted in its submissions, “the factual basis for the [Mr. Lewis]’ suspension was grounded on very simple failings to comply with the Society’s requirements for membership, i.e. failing to pay his annual fee and failing to complete his CPD requirement. The basis for [that] decision is clearly evidenced in the Manager’s decision letter of Novem- ber 18, 2010” (see Tab 2, page 165, para 61 of the Respondent’s Record). 38 The Court also notes that Mr. Lewis failed to establish that the CSIC had ignored probative evidence or demonstrate that he had complied with the CSIC’s by-law. On the contrary he acknowledged being in default of payment. 39 In the enforcement of CSIC’s by-laws and policies, Ms. Morelli had limited discretion. She reasonably applied by-laws 10.19 and 10. 20 to the case. 40 Finally, the Court must underline that a judicial application is not the proper proceeding to dispute the imposition of reinstatement fees. 41 This application for judicial review is therefore dismissed, each party paying its costs.

VII. Conclusion 42 The CSIC did not breach its duty of procedural fairness nor did it misapply its by-laws. It was reasonable for the CSIC to revoke Mr. Lewis’ membership since he failed to comply with the CSIC’s membership requirements under By-law 10.19 and 10.20. Therefore, the Court Lewis v. Canadian Society of Immigration Consultants Andr´e F.J. Scott J. 73 concludes that this application for judicial review be dismissed, each party paying its costs.

Judgment THIS COURT’S JUDGMENT is that 1. This application for judicial review is dismissed; and 2. Each party paying its own costs. Application dismissed. 74 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

[Indexed as: Sran v. Canada (Minister of Citizenship & Immigration)] Daljit Singh Sran and Rupinder Jit Kaur Sran, Applicants and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-6655-11 2012 FC 791 Richard G. Mosley J. Heard: April 11, 2012 Judgment: June 25, 2012 Immigration and citizenship –––– Admission — Immigrants — Provincial nominees –––– Foreign national and his wife were citizens of India with two children — Foreign national had diploma in divinity but had been farmer — Foreign national, wife, and children were currently living in New Zealand — Foreign national was earning minimum wage as store clerk — Wife had two university degrees but was working in unrelated field — Foreign national’s parents lived in Alberta — Parents nominated foreign national under Alberta Immi- grant Nominee Program (AINP) in Family Stream — Immigration officer denied foreign national permanent residence on basis that he did not have ability to become economically established in Canada — Foreign national brought application for judicial review — Application granted; matter remitted for redetermination — Officer’s decision was not reasonable — Officer had not evaluated wife in her own right but rather as only relevant factor in considering foreign national’s settlement prospects — This was problematic in two respects — First, it was contrary to AINP Family Stream and, therefore, ability of Alberta to determine its needs in economic immigration — Second, it did not respect Citizen- ship and Immigration Canada’s own policy to examine overage dependents in their own right — Officer further erred in relying primarily on skilled worker classification tool to evaluate foreign national’s likelihood of becoming economically established in Canada. Cases considered by Richard G. Mosley J.: Ayyalasomayajula v. Canada (Minister of Citizenship & Immigration) (2007), 2007 CF 248, 2007 CarswellNat 5544, 2007 CarswellNat 521, 2007 FC 248, [2007] F.C.J. No. 320 (F.C.) — referred to Baker v. Canada (Minister of Citizenship & Immigration) (1999), 1 Imm. L.R. (3d) 1, [1999] 2 S.C.R. 817, 14 Admin. L.R. (3d) 173, 174 D.L.R. (4th) 193, 1999 CarswellNat 1124, 1999 CarswellNat 1125, 243 N.R. 22, [1999] S.C.J. No. 39 (S.C.C.) — referred to Sran v. Canada (MCI) 75

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 Krishnamoorthy v. Canada (Minister of Citizenship & Immigration) (2011), 2011 CarswellNat 4883, 2011 FC 1342, 2011 CF 1342, 2011 CarswellNat 5637, 6 Imm. L.R. (4th) 67 (F.C.) — referred to Madan v. Canada (Minister of Citizenship & Immigration) (1999), 172 F.T.R. 262, 1999 CarswellNat 1480, [1999] F.C.J. No. 1198 (Fed. T.D.) — referred to Mbala v. Canada (Minister of Citizenship & Immigration) (2006), 2006 Car- swellNat 2700, 57 Imm. L.R. (3d) 59, 2006 FC 1057, 2006 CF 1057, 2006 CarswellNat 5393 (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 Silva v. Canada (Minister of Citizenship & Immigration) (2007), 2007 Car- swellNat 2989, 2007 CF 733, 2007 FC 733, 2007 CarswellNat 1988, 63 Imm. L.R. (3d) 176, [2007] F.C.J. No. 981 (F.C.) — referred to Singh v. Canada (Minister of Citizenship & Immigration) (2011), 2011 Car- swellNat 2520, 2011 FC 813, 2011 CF 813, 2011 CarswellNat 3943, [2011] F.C.J. No. 1014 (F.C.) — referred to Thamotharem v. Canada (Minister of Citizenship & Immigration) (2007), 2007 CarswellNat 2817, 64 Imm. L.R. (3d) 226, 60 Admin. L.R. (4th) 247, [2008] 1 F.C.R. 385, 2007 CarswellNat 1391, 2007 FCA 198, 2007 CAF 198, 366 N.R. 301, [2007] F.C.J. No. 734 (F.C.A.) — referred to Wai v. Canada (Minister of Citizenship & Immigration) (2009), 2009 FC 780, 348 F.T.R. 85 (Eng.), 2009 CarswellNat 2481, [2009] F.C.J. No. 1015 (F.C.) — referred to Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Generally — referred to s. 12 — considered s. 12(2) — considered s. 72 — pursuant to 76 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

Regulations considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Immigration and Refugee Protection Regulations, SOR/2002-227 Generally — referred to s. 87 — considered s. 87(1) — considered s. 87(2) — considered s. 87(3) — considered s. 87(4) — considered s. 87(12) — considered

APPLICATION by foreign national for judicial review of decision denying him permanent residence under Alberta Immigrant Nominee Program.

Peter Wong, for Applicants Rick Garvin, for Respondent

Richard G. Mosley J.:

1 This is an application for judicial review under section 72 of the Im- migration and Refugee Protection Act, SC 2001, c 26 (hereafter the IRPA) of a decision rendered by an Immigration Officer denying an application for permanent resident status in the provincial nominees’ class. 2 The principal applicant, Mr. Daljit Singh Sran, is a citizen of India born in 1962. He is married to Rupinder Jit Kaur Sran, also a citizen of India, born in 1969. They have two children and are currently living in New Zealand. 3 Mr. Sran has a high school education, a diploma in Divinity and was a farmer in India. He is working as a store clerk in New Zealand. His wife has a Bachelor of Arts and a Bachelor of Education form India. She worked as a teacher in India for nearly 10 years. Since moving to New Zealand, she obtained a diploma in horticulture and is currently working in that field. 4 Mr. Sran’s parents live in Calgary, Alberta. He was nominated under the Alberta Immigrant Nominee Program (hereafter the AINP) in the Family Stream and approved by the Alberta program office. 5 The officer did not believe that Mr. Sran has the ability of becoming economically established in Canada. His wife’s education and experience was considered to be relevant, but insufficient to overcome the deficiencies in Mr. Sran’s application. He had not demonstrated fluency in En- Sran v. Canada (MCI) Richard G. Mosley J. 77

glish, did not speak French and required an interpreter for the interview. The applicant admitted that his divinity credential was of little use in Canada. 6 The officer found that the applicant earned a minimum wage as a store clerk. The evidence provided about his current employment was vague and inconsistent with his letter of reference. The applicant was not specific, spontaneous or forthcoming during his interview. He did not provide evidence of National Occupational Classification (hereafter NOC) duties. Accordingly, the officer found that the applicant would not qualify as a skilled worker. Moreover, he did not have the experience to run a business as he hoped to do in Canada. His wife is also not working as a skilled worker in New Zealand. 7 The officer’s decision was reviewed and confirmed by a second officer. That officer added that the farming experience in India was likely not transferable to Canada.

Issues: 8 The issues raised on this application are as follows: 1. Was the officer’s decision reasonable? 2. Did the officer breach the duty of procedural fairness?

Analysis: Standard of review 9 The officer’s decision was factual in nature and is reviewable on a standard of reasonableness: Silva v. Canada (Minister of Citizenship & Immigration), 2007 FC 733 (F.C.) at paras 6-7; and Wai v. Canada (Minister of Citizenship & Immigration), 2009 FC 780 (F.C.) at para 18. 10 The proper approach to issues of procedural fairness is to ask whether the requirements of the duty of fairness in the particular circumstances have been met: Singh v. Canada (Minister of Citizenship & Immigra- tion), 2011 FC 813 (F.C.) at para 9; and Krishnamoorthy v. Canada (Minister of Citizenship & Immigration), 2011 FC 1342 (F.C.) and at para 13.

Was the officer’s decision reasonable? 11 The framework for permanent residency under the Provincial Nomi- nees Class is established by s. 12 of the IRPA and s. 87 of the Immigra- 78 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

tion and Refugee Protection Regulations, SOR/2002-227 (hereafter the Regulations). These provisions are set out below: 12. (2) A foreign national may be selected as a member of the economic class on the basis of their ability to become economically established in Canada. 87. (1) For the purposes of subsection 12(2) of the Act, the provincial nominee class is hereby prescribed as a class of persons who may become permanent residents on the basis of their ability to become economically established in Canada. (2) A foreign national is a member of the provincial nominee class if (a) subject to subsection (5), they are named in a nomination certificate issued by the government of a province under a provincial nomination agreement between that province and the Minister; and (b) they intend to reside in the province that has nominated them. (3) If the fact that the foreign national is named in a certificate referred to in paragraph (2) (a) is not a sufficient indicator of whether they may become economically established in Canada and an officer has consulted the government that issued the certificate, the officer may substitute for the criteria set out in subsection (2) their evaluation of the likelihood of the ability of the foreign national to become economically established in Canada. (4) An evaluation made under subsection (3) requires the concur- rence of a second officer. [...] (12) A foreign national who is an accompanying family member of a person who makes an application as a member of the provincial nominee class shall become a permanent resident if, following an examination, it is established that a) the person who made the application has become a permanent resident; and b) the foreign national is not inadmissible. 12. (2) La sélection des etrangers´ de la catégorie « immigration economique´ » se fait en fonction de leur capacité a` réussir leur etab-´ lissement economique´ au Canada. 87. (1) Pour l’application du paragraphe 12(2) de la Loi, la catégorie des candidats des provinces est une catégorie réglementaire de personnes qui peuvent devenir résidents permanents du fait de leur capacité a` réussir leur etablissement´ economique´ au Canada. Sran v. Canada (MCI) Richard G. Mosley J. 79

(2) Fait partie de la catégorie des candidats des provinces l’étranger qui satisfait aux critères suivants: a) sous réserve du paragraphe (5), il est visé par un certificat de désignation délivré par le gouvernement provincial concerné conformément a` l’accord concernant les candidats des provinces que la province en cause a conclu avec le ministre; b) il cherche a` s’établir dans la province qui a délivré le certificat de désignation. (3) Si le fait que l’étranger est visé par le certificat de désignation mentionné a` l’alinéa (2)a) n’est pas un indicateur suffisant de l’aptitude a` réussir son etablissement´ economique´ au Canada, l’agent peut, après consultation auprès du gouvernement qui a délivré le certificat, substituer son appréciation aux critères prévus au paragraphe (2). (4) Toute décision de l’agent au titre du paragraphe (3) doit etreˆ con- firmée par un autre agent. [...] (12) L’étranger qui est un membre de la famille et qui accompagne la personne qui présente une demande au titre de la catégorie des candidats des provinces devient résident permanent si, a` l’issue d’un contrôle, les el´´ ements ci-après sont etablis:´ a) la personne qui présente la demande est devenue résident permanent; b) il n’est pas interdit de territoire. 12 Under this framework, the provinces have signed agreements with the federal government to establish provincial nomination programs. The relevant agreement in this application is the Canada-Alberta Immigration Agreement. Under that Agreement, Alberta established the AINP. In this case, the applicant obtained a provincial nomination certificate under the AINP Family Stream. 13 The provincial decision to issue a certificate must be accorded deference but is not binding on the officer. Immigration Officers do not have to consider the same criteria as the province and the evaluation of potential economic establishment is linked to the person named in the nomination certificate; in this case that was Mr. Sran. 14 Subsection 87(3) of the Regulations permits an officer, after consult- ing with the provincial nomination program, to evaluate the application if the officer is not satisfied that the provincial certificate is a sufficient indicator of the likelihood of establishment in Canada. In the present 80 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

case, the officer consulted the provincial office and the AINP confirmed its decision to nominate the applicant. The officer’s evaluation was then reviewed by a second officer in accordance with subsection 87(4). 15 It cannot be said that the officer made the decision without regard to the evidence. The Computer Assisted Immigration Processing System notes in the record indicate that the officer considered the decision of Alberta, including the response received from his inquiry, the work experience and education of the applicant and his spouse, the applicant’s motivations, the applicant’s family living in Canada and the language skills of the applicant. 16 The key question on this application is whether the officer gave sufficient consideration to the wife’s credentials. It is clear that he gave them less weight than that accorded by the province. Was that reasonable? 17 Departmental policy documents such as operational manuals are not law and the Minister and her agents are not bound by them, but they can be of great assistance to the Court in determining reasonableness: Thamotharem v. Canada (Minister of Citizenship & Immigration), 2007 FCA 198 (F.C.A.) at para 59; and Baker v. Canada (Minister of Citizenship & Immigration), [1999] 2 S.C.R. 817 (S.C.C.) at para 72. 18 Section 7.7 of the Overseas Processing Manual OP 7b states that overaged dependants named in a provincial nomination certificate should, on a case by case basis, be carefully evaluated in their own right. The officer should refuse the application if they have strong reason to believe that the applicant is very unlikely to become economically established even with the assistance of their other family members. It is consistent with the legislation, the policy states, to approve cases where there is some likelihood of successful settlement within a reasonable time. 19 In the present case, it is clear from the reasons that the officer did not evaluate the spouse in her own right but simply as a relevant factor in considering her husband’s settlement prospects. The officer’s reasons are clear that he only considered the spouse’s credentials as “relevant”. The fact that she was not interviewed is another indication that her potential contribution was discounted. This was problematic in two ways: first it was contrary to the AINP Family Stream and, therefore, the ability of Alberta to determine its needs in economic immigration; and, secondly, it did not respect Citizenship and Immigration Canada’s own policy to examine overage dependents in their own right. Sran v. Canada (MCI) Richard G. Mosley J. 81

20 The applicant also submits that there was insufficient evidence to re- but the presumption created by the provincial certificate. Section 7.8 of OP 7b stated: Immigration officers can assume that a candidate nominated by a province does, in the view of the provincial officials, intend to reside in the nominating province and has a strong likelihood of becoming economically established in Canada. [...] There are three bases upon which a provincial nominee who meets all statutory admissibility requirements can be refused a visa: • The officer has reason to believe that the applicant does not intend to live in the province that has nominated them; • The officer has reason to believe that the applicant is unlikely to be able to successfully establish economically in Canada; • The officer has reason to believe that the applicant is partici- pating in, or intends to participate in, a passive investment or an immigration-linked investment scheme as defined in R87(5) to R87(9) of the Regulations. In each case, the officer must have some evidence to support this belief and overcome the presumptions implied by the provincial nomination. ... [Emphasis added] 21 Here, the officer’s reasons indicate why he does not believe that the applicant is very likely to become economically established in Canada: see Wai, above, at para 45. The Court’s task is not to reweigh the evidence and substitute its own analysis for that of the officer. Absent a reviewable error, the Court’s intervention is not warranted. The assertion that the evidence was insufficient to rebut the presumption does not con- stitute a reviewable error as it would require that this Court reweigh the evidence. 22 The officer’s duty was to determine if the applicant or his spouse were likely to become economically established in Canada: s.87(3) of the Regulations; and s.5, 7.6, 7.7 and 7.8 of the OP 7b. The IRPA and the Regulations do not define “become economically established”. However, the OP 7b, at section 7.7, offers some guidance: There is no definition in the legislation of “become economically established,” leaving the term open to interpretation. There is also no indication of the exact moment when an applicant must become economically established: immediately upon landing or after an initial 82 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

period of adjustment. However, it is clear, from the way in which the term is used throughout the economic classes, that to become economically established means to join and participate in the labour market in Canada. It is also clear that the selection criteria do not apply to the provincial nominee class in the same way as they apply to federal skilled workers and that it is the overall intention of the legislation and the Federal-Provincial-Territorial agreements to allow the provinces some latitude in their nomination decisions. [Emphasis added] 23 The officer evaluated the competence of the applicant and of his spouse using the NOC, a tool to determine applications from those seeking to be admitted as members of the federal skilled worker category. The OP 7b makes it clear that the federal skilled worker class and the provincial nominee class are two different categories with different criteria. 24 In my view, the officer erred in relying primarily on the skilled worker classification tool to evaluate the likelihood that the applicant would become economically established in Canada. In comparing the applicant’s skills to the NOC criteria, the officer lost sight of the factors that had persuaded the Alberta government that the family could be settled including the wife’s education and the parents’ willingness to support the family. 25 As a result, I am satisfied that the decision falls outside the range of possible, acceptable outcomes which are defensible in respect of the facts and law: New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9 (S.C.C.) at para 47; and Khosa v. Canada (Minister of Citizenship & Immigration), 2009 SCC 12 (S.C.C.) at para 59. 26 Considering my conclusion on the unreasonableness of the decision, it is unnecessary to address the procedural fairness issue. Nevertheless, I would have not found that the officer breached his duty of procedural fairness as it is trite law that an officer does not have to apprise an applicant of concerns relating to the requirements of the legislation; in this case the economic establishment of the applicant in Canada: Madan v. Canada (Minister of Citizenship & Immigration), [1999] F.C.J. No. 1198 (Fed. T.D.) at para 6; Mbala v. Canada (Minister of Citizenship & Immi- gration), 2006 FC 1057 (F.C.) at paras 21-22; and Ayyalasomayajula v. Canada (Minister of Citizenship & Immigration), 2007 FC 248 (F.C.) at paras 17-18. Sran v. Canada (MCI) Richard G. Mosley J. 83

27 No serious questions of general importance were proposed and none will be certified.

Judgment THIS COURT’S JUDGMENT is that the application is granted and the matter remitted for reconsideration by a different officer. No questions are certified. Application granted; matter remitted for redetermination. 84 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

[Indexed as: Li v. Canada (Minister of Citizenship & Immigration)] Newn Shin Li, Applicant and The Minister of Citizenship & Immigration, Respondent Federal Court Docket: IMM-2346-11 2012 FC 484 John A. O’Keefe J. Heard: November 16, 2011 Judgment: April 25, 2012 Immigration and citizenship –––– Admission — Temporary entry (visitors) — Foreign workers –––– Applicant was citizen of India of Chinese ancestry, with wife and family in India — Applicant had offer of employment in Chi- nese restaurant in Canada — Applicant applied for Canadian work permit as cook of Indian style Hakka Chinese food — Immigration officer in India found that applicant did not meet English language requirements or requirements of relevant work experience — Officer denied request for work permit — Appli- cant applied for judicial review of officer’s decision — Application granted — Decision set aside and matter referred to different officer for redetermination — Onus was on applicant to satisfy officer that there were no reasonable grounds to believe that applicant would be unable to perform work sought — Statutory provisions describing requirements for workers’ work permit applications were less specific than for skilled worker permits — There were no levels of education specified in Immigration and Refugee Protection Regulations for worker work permits — Applicant submitted school records showing passing grades, and letters of reference and pay slips in support of work experience — Reference letters spoke highly of applicant as cook with many years’ experience and particular skills in Asian cooking — Officer was not generally obligated to make further inquiries when application was ambiguous, but facts here favoured exception to rule — Officer’s failure to grant applicant opportunity to respond to officer’s concerns resulted in denial of procedural fairness to applicant. Cases considered by John A. O’Keefe J.: Akbar v. Canada (Minister of Citizenship & Immigration) (2008), 2008 Car- swellNat 4791, 2008 FC 1362, [2008] F.C.J. No. 1765 (F.C.) — referred to Castro v. Canada (Minister of Citizenship & Immigration) (2005), 2005 FC 659, 2005 CarswellNat 1218, 2005 CF 659, 2005 CarswellNat 4731, [2005] F.C.J. No. 811 (F.C.) — referred to Li v. Canada (MCI) 85

Gulati v. Canada (Minister of Citizenship & Immigration) (2010), 89 Imm. L.R. (3d) 238, 2010 CF 451, 2010 CarswellNat 4178, 2010 FC 451, 2010 Car- swellNat 1743, [2010] F.C.J. No. 771 (F.C.) — referred to Hara v. Canada (Minister of Citizenship & Immigration) (2009), 2009 FC 263, 2009 CarswellNat 739, 79 Imm. L.R. (3d) 27, 341 F.T.R. 278 (Eng.), [2009] F.C.J. No. 371 (F.C.) — referred to 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.) — referred to Khosa v. Canada (Minister of Citizenship & Immigration) (2009), 82 Admin. L.R. (4th) 1, 2009 SCC 12, 2009 CarswellNat 434, 2009 CarswellNat 435, 304 D.L.R. (4th) 1, 77 Imm. L.R. (3d) 1, 385 N.R. 206, (sub nom. Canada (Citizenship & Immigration) v. Khosa) [2009] 1 S.C.R. 339, [2009] S.C.J. No. 12 (S.C.C.) — considered Kojouri v. Canada (Minister of Citizenship & Immigration) (2003), 2003 FC 1389, 2003 CarswellNat 3804, 2003 CarswellNat 4457, [2003] F.C.J. No. 1779 (F.C.) — referred to Li v. Canada (Minister of Citizenship & Immigration) (2008), 76 Imm. L.R. (3d) 265, 337 F.T.R. 100 (Eng.), 2008 FC 1284, 2008 CarswellNat 4261, 2008 CarswellNat 5159, 2008 CF 1284, [2008] F.C.J. No. 1625 (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 Olorunshola v. Canada (Minister of Citizenship & Immigration) (2007), 318 F.T.R. 142 (Eng.), 2007 CarswellNat 3531, 2007 FC 1056, 66 Imm. L.R. (3d) 192, 66 Admin. L.R. (4th) 155, [2007] F.C.J. No. 1383 (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 Randhawa v. Canada (Minister of Citizenship & Immigration) (2006), 2006 CarswellNat 6368, 2006 CF 1294, 2006 FC 1294, 2006 CarswellNat 3481, 86 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

57 Imm. L.R. (3d) 99, 302 F.T.R. 123 (Eng.), [2006] F.C.J. No. 1614 (F.C.) — referred to Samuel v. Canada (Minister of Citizenship & Immigration) (2010), 2010 Car- swellNat 950, 2010 CF 223, 2010 CarswellNat 435, 2010 FC 223, [2010] F.C.J. No. 256 (F.C.) — referred to Singh v. Canada (Minister of Citizenship & Immigration) (2010), 2010 FC 1306, 2010 CarswellNat 5221, 2010 CF 1306, 2010 CarswellNat 5583, 95 Imm. L.R. (3d) 83, [2010] F.C.J. No. 1663 (F.C.) — referred to Suresh v. Canada (Minister of Citizenship & Immigration) (2002), 2002 SCC 1, 37 Admin. L.R. (3d) 159, [2002] 1 S.C.R. 3, 2002 CarswellNat 7, 2002 Car- swellNat 8, 18 Imm. L.R. (3d) 1, 208 D.L.R. (4th) 1, 281 N.R. 1, 90 C.R.R. (2d) 1, [2002] S.C.J. No. 3, REJB 2002-27423 (S.C.C.) — referred to Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Generally — referred to s. 72(1) — pursuant to Regulations considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Immigration and Refugee Protection Regulations, SOR/2002-227 Generally — referred to Pt. 6, Div. 1 — considered Pt. 11 — referred to s. 75(1) — referred to ss. 76-83 — referred to s. 200(1) — considered s. 200(3) — considered s. 200(3)(a) — considered

APPLICATION for judicial review of Immigration officer’s decision denying request for worker’s work permit.

Wennie Lee, for Applicant Samantha Reynolds, for Respondent

John A. O’Keefe J.:

1 This is an application pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 (the Act) for judicial review of a decision of an officer at the New Delhi Immigration Section of the Canadian High Commission (the officer), dated January 27, 2011, wherein the applicant’s request for a work permit was denied. This con- Li v. Canada (MCI) John A. O’Keefe J. 87

clusion was based on the officer’s finding that the applicant did not meet the necessary language and work experience requirements. 2 The applicant requests that the officer’s decision be quashed and the matter sent back for redetermination by a different officer.

Background 3 The applicant is of Chinese ancestry and is a citizen of India. He is married and has three dependants. He lives with his family in India. 4 On December 3, 2010, the applicant submitted an application for a Canadian work permit as a cook of Indian-style Hakka Chinese food. 5 The application included a positive Labour Market Opinion (LMO) issued on October 27, 2010 to the Royal Chinese Seafood Restaurant, the applicant’s proposed employer in Scarborough, Ontario. The letter in which the LMO was issued included a confirmation by Service Canada of the Royal Chinese Seafood Restaurant’s offer of employment to the applicant (the LMO-approved employment offer). 6 The LMO specified that the job required the applicant to have oral and written English. The LMO-approved employment offer stated that the position was for a cook specializing in Indian / Cantonese Chinese Cuisine (Hakka food). 7 The Citizenship and Immigration Canada (CIC) document checklist for a work permit requires that applicants include “proof indicating you meet the requirements of the job being offered”. To fulfill this requirement, the applicant included the following documentation in his application: Language: School certificates from 1989 and 1991 showing passing grades in English; and Work experience: Letters of recommendation and recent salary slips from Golden Empire Restaurant and Bar in India. The letters indicated that the applicant was employed as head chef at the restaurant for over seven years on a full time basis and described the applicant as a “chef for all seasons” who is “particularly good in Asian foods preparations”.

Officer’s Decision 8 In a letter dated January 27, 2011, the officer denied the applicant’s request for a work permit (the decision). The decision was based on the officer’s finding that the applicant did not meet the language and work experience requirements specified in the LMO. 88 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

9 In the Global Case Management System (GCMS) notes that form part of the decision, the officer acknowledged that the applicant had provided banking documents, pay slips, an income tax form and school records. However, the officer found that the applicant had not provided proof that he met the English requirements specified in the LMO or the requirements of work experience in Indian-style Hakka Chinese food. The officer also found that the letter from the applicant’s employer did not state the applicant’s qualifications. The officer therefore refused the applicant’s application.

Issues 10 The applicant submits the following point at issue: Error of Law: Did the respondent err in failing to provide the applicant an opportunity to disabuse the officer’s concerns? 11 I would rephrase the issues as follows: 1. What is the appropriate standard of review? 2. Did the officer deny the applicant procedural fairness? 3. Did the officer err in denying the applicant’s application?

Applicant’s Written Submissions 12 The applicant submits that he was never given an opportunity to respond to the officer’s concerns regarding the language and work experience requirements and that this was a clear breach of procedural fairness. As this is fundamentally a question of law, natural justice and procedural fairness, it attracts a standard of review of correctness. 13 Nevertheless, the applicant submits that he did provide school documents as evidence of his ability to meet the English requirement. As such, unless the credibility of the documents was at issue, there was no reason for the respondent not to believe that the applicant met the En- glish requirement. The applicant submits that the officer’s decision on this point was therefore completely unsupported. 14 Similarly, the applicant submits that he did provide clear evidence of his experience as a Chinese food chef. Although the letters did not specify that it was Hakka Chinese food, a quick inquiry would have clarified this issue. The applicant refers to case law in which it submits the Court has held that an officer’s failure to make simple inquiries was remarkably unfair. The applicant submits that in this case the officer’s decision on this point was willfully blind. Li v. Canada (MCI) John A. O’Keefe J. 89

Respondent’s Written Submissions 15 The respondent submits that the applicant has not demonstrated an arguable case upon which the application for judicial review may proceed. 16 The respondent submits that an officer’s decision on a work permit application is reviewable on a reasonableness standard. As this type of decision is highly fact-based and discretionary and involves interpretation by the officer of its own statutes and policies, deference is warranted. 17 The respondent submits that the duty of procedural fairness applicable to these types of decisions varies according to context. As there is no evidence that reapplying with improved information and documentation will cause the applicant hardship, the respondent submits that the procedural fairness required is relatively low. 18 The respondent also submits that the question of whether the officer should have provided the applicant an opportunity to respond to concerns should be assessed on a standard of correctness. However, in this case, the procedural fairness does not require an officer assessing a work permit to inform the applicant of concerns regarding inadequacies in the application or to request additional information. In addition, an applicant is not entitled to an interview to correct deficiencies in the application. The burden of establishing the merits of the application rests on the applicant. 19 The respondent submits that this case does not fall into one of the exceptions where an officer may be required to provide an applicant with the opportunity to respond to its concerns. Rather, the officer’s decision shows that the officer assessed the letter from the applicant’s employer and the applicant’s submission on his English language ability and found that these failed to substantiate his work experience and language ability. It was within the officer’s purview to reject the application on these bases. 20 The respondent also submits that the officer’s decision was reasonable. In support, the respondent refers to paragraph 200(3)(a) of the Immi- gration and Refugee Protection Regulations, SOR/2002-227 (the Regula- tions), which the respondent submits prevents an officer from issuing a work permit if there are reasonable grounds to believe that the foreign national is unable to perform the work sought. The respondent submits that the applicant must establish that there are no reasonable grounds to believe that he will be unable to perform the work. 90 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

21 As the reference letters from the applicant’s employer, Golden Em- pire Restaurant and Bar, do not clearly substantiate that he has experience specifically in Indian-style Hakka Chinese food, the respondent submits that it was reasonable for the officer to find that the applicant had submitted insufficient evidence of his work experience as a cook with that speciality. Similarly, the respondent submits that as there was no evidence specifically addressing the applicant’s English abilities, it was reasonable for the officer to find insufficient proof that the applicant met the English requirements specified in the LMO. 22 For these reasons, the respondent submits that the officer’s decision was reasonable.

Analysis and Decision Distinguishing Permits: Skilled Worker Class versus Worker 23 This case pertains to an application for a work permit under Part 11 (Workers) of the Regulations (workers work permit). The associated regulatory regime differs in some significant ways from the skilled worker applications regulated under Division 1 of Part 6 (Economic Class — Skilled Workers) of the Regulations (skilled worker class permit). 24 Most notably, persons in the skilled worker class may seek permanent residency in Canada (subsection 75(1) of the Regulations) whereas workers work permits only grant holders a temporary stay in Canada until the end date indicated on their permits. As the skilled worker class grants greater access to Canadian residency, specific selection criteria are out- lined in the Regulations (sections 76 through 83). For example, points are specified for different levels of education (i.e., secondary, post-secondary, university, etc.). Conversely, the statutory provisions for worker work permits are more general, with few details on actual application requirements. 25 Provisions under Division 1 of Part 6 (Economic Class — Skilled Workers) have also had greater judicial treatment than those under Part 11 (Workers) of the Regulations. As such, jurisprudence on workers work permit applications has drawn from the case law on skilled worker class permit applications (see Singh v. Canada (Minister of Citizenship & Immigration), 2010 FC 1306, [2010] F.C.J. No. 1663 (F.C.); and Randhawa v. Canada (Minister of Citizenship & Immigration), 2006 FC 1294, [2006] F.C.J. No. 1614 (F.C.) at paragraph 12). However, as the two processes and associated rights differ, some care must be taken in applying the jurisprudence of one to the other. In the following analysis, Li v. Canada (MCI) John A. O’Keefe J. 91

I have therefore noted where cases pertain to skilled worker class permits as opposed to workers work permits.

Issue 1 What is the appropriate standard of review? 26 Where previous jurisprudence has determined the standard of review applicable to a particular issue before the court, the reviewing court may adopt that standard (see New Brunswick (Board of Management) v. Dun- smuir, 2008 SCC 9, [2008] 1 S.C.R. 190 (S.C.C.) at paragraph 57). 27 Determinations by officers on work permit applications are administrative decisions made within their legislative authority. These fact-based decisions should be granted a high degree of deference and are therefore reviewable on a reasonableness standard (see Samuel v. Canada (Minister of Citizenship & Immigration), 2010 FC 223, [2010] F.C.J. No. 256 (F.C.) at paragraph 26; Randhawa above, at paragraph 10; and skilled worker class jurisprudence: Castro v. Canada (Minister of Citizenship & Immigration), 2005 FC 659, [2005] F.C.J. No. 811 (F.C.) at paragraph 6; and Akbar v. Canada (Minister of Citizenship & Immi- gration), 2008 FC 1362, [2008] F.C.J. No. 1765 (F.C.) at paragraph 11). 28 In reviewing the officer’s decision on the standard of reasonableness, the Court should not intervene unless the officer came to a conclusion that is not transparent, justifiable and intelligible and within the range of acceptable outcomes based on the evidence before it (see Dunsmuir above, at paragraph 47; Khosa v. Canada (Minister of Citizenship & Im- migration), 2009 SCC 12, [2009] S.C.J. No. 12 (S.C.C.) at paragraph 59). As the Supreme Court held in Khosa above, it is not up to a reviewing court to substitute its own view of a preferable outcome, nor is it the function of the reviewing court to reweigh the evidence (at paragraphs 59 and 61). 29 Conversely, issues that go to the fairness of an impugned decision must be decided on a standard of correctness (see Suresh v. Canada (Minister of Citizenship & Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3 (S.C.C.) at paragraph 115; and Hara v. Canada (Minister of Citizenship & Immigration), 2009 FC 263, [2009] F.C.J. No. 371 (F.C.) at paragraph 15). 30 In this case, the applicant submits that he was not granted an opportunity to respond to the officer’s concerns. A denial of the opportunity to respond to an officer’s concerns is a procedural fairness issue that is reviewable on a standard of correctness (see Hara above, at paragraph 16). 92 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

No deference is owed to the decision maker and the Court must form its own opinion on this issue (see Dunsmuir above, at paragraph 50).

Issue 2 Did the officer deny the applicant procedural fairness? 31 In immigration applications, the onus is on the applicant to satisfy the officer of all parts of the application. As such, it is generally not a procedural fairness requirement that work permit applicants be granted an opportunity to respond to the concerns of officers. This is particularly true where there is no evidence of serious consequences to the applicant (see Qin v. Canada (Minister of Citizenship & Immigration), 2002 FCT 815, [2002] F.C.J. No. 1098 (Fed. T.D.) at paragraph 5). A lack of serious consequences has been found in situations where applicants are able to re-apply for workers work permits and there is no evidence that doing so will cause them hardship (see Masych v. Canada (Minister of Citizenship & Immigration), 2010 FC 1253, [2010] F.C.J. No. 1563 (F.C.) at paragraph 30). 32 However, there are exceptions to this rule and, in certain circumstances, the duty to grant applicants an opportunity to respond is warranted. For example, if an officer uses extrinsic evidence to form an opinion or forms a subjective opinion that an applicant could not have known would be used in an adverse way, the officer may be under a duty to grant the applicant an opportunity to respond (see Li v. Canada (Minister of Citizenship & Immigration), 2008 FC 1284, [2008] F.C.J. No. 1625 (F.C.) at paragraph 36; and Hara above, at paragraph 23). 33 In jurisprudence on applications for skilled worker class permits it has also been held that if the officer has concerns about the veracity of documents, procedural fairness demands that the officer make further in- quires (see Kojouri v. Canada (Minister of Citizenship & Immigration), 2003 FC 1389, [2003] F.C.J. No. 1779 (F.C.) at paragraphs 18 and 19; and Olorunshola v. Canada (Minister of Citizenship & Immigration), 2007 FC 1056, [2007] F.C.J. No. 1383 (F.C.) at paragraphs 29 and 33). 34 However, an officer is generally not under a duty to inform a skilled worker class permit applicant about his concerns when they arise directly from the requirements of the legislation or regulations (see Hassani v. Canada (Minister of Citizenship & Immigration), 2006 FC 1283, [2007] 3 F.C.R. 501 (F.C.) at paragraphs 23 and 24; and Gulati v. Canada (Minister of Citizenship & Immigration), 2010 FC 451, [2010] F.C.J. No. 771 (F.C.) at paragraph 43). Li v. Canada (MCI) John A. O’Keefe J. 93

35 These findings in cases on skilled worker class permits have been ap- provingly referred to in jurisprudence on workers work permit applications (see Singh above, at paragraphs 40 to 42). 36 In this case, there is no evidence that re-application would cause serious consequences to the applicant. Similarly, there is no indication that the officer had concerns about the veracity of the documents, relied on extrinsic evidence to form his opinion, or formed a subjective opinion that the applicant could not have known would be used in an adverse way. 37 Nevertheless, relying on skilled worker class permit jurisprudence, it should be determined whether the officer’s concerns arose directly from the requirements of the legislation or regulations. If they did not, it is more likely that the procedural fairness required might include an opportunity for the applicant to respond to the officer’s concerns in specific circumstances. 38 As mentioned above, the statutory provisions describing the requirements for workers work permit applications are less specific than those for skilled worker permits. Part 11 of the Regulations only describe mini- mal requirements for worker work permit applications. Subsection 200(1) of the Regulations states that an officer shall issue a workers work permit to a foreign national if, following an examination, the officer is satisfied that the applicant meets all of the requirements of that section. 39 In this case, the applicant applied from outside Canada and had an offer of employment that had been approved in a valid LMO (the LMO- approved employment offer). Subsection 200(1) therefore only required that it be established that the applicant would leave Canada by the end of the period authorized for his stay. No evidence was presented on this issue and the officer’s decision does not suggest that this was a concern that led to the denial of the application. 40 There is little other statutory guidance to inform a workers work permit applicant of the specific application requirements. 41 Nevertheless, subsection 200(1) of the Regulations must be read in conjunction with subsection 200(3), which lists various exceptions for which an officer shall not issue a workers work permit. An applicant has the onus to establish that there are no reasonable grounds to believe that he or she will be unable to perform the work sought (see Samuel above, at paragraph 30). The only exception relevant to this case is paragraph 200(3)(a), which prohibits an officer from issuing a workers work permit 94 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

if “there are reasonable grounds to believe that the foreign national is unable to perform the work sought”. 42 In this case, the officer found that: Subject has not provided proof that he meets the requirement of En- glish according to the LMO or that he meets with the work experience in Indian style Hakka Chinese food. Letter from employer does not state subject’s qualifications. 43 However, in his application, the applicant submitted school records showing passing grades in English in support of the language requirement. Nevertheless, the officer found that the applicant had not provided proof that he met the English requirements “according to the LMO”. The LMO merely stated that the job requires written and oral English. Fur- ther, as mentioned above, unlike the skilled worker class, there are no levels of education specified in the Regulations for worker work permits. Although the applicant’s English grades were not high, there was no evidence on which to find them inadequate for the requirements specified in the LMO. In addition, there is nothing in either the statutory provisions or the CIC policies to suggest that school records would be inadequate to establish the applicant’s proficiency in English. 44 In his application, the applicant also included letters of reference and pay slips in support of his work experience. As noted by the officer, the reference letters do not clearly specify Hakka cuisine. They do, however, speak highly of the applicant as a cook with many years experience and particular skills in Asian foods preparation. In addition, they are from the Golden Empire Restaurant and Bar. Therefore, if there was any confu- sion on the type of restaurant that the applicant’s previous employer in India was, it could easily have been uncovered that it was likely a Chi- nese food restaurant. This is further supported by the fact that the applicant holds Indian citizenship but is of Chinese ancestry (as indicated in his work permit application). 45 The officer also stated that the applicant had failed to establish his work experience in Indian-style Hakka Chinese food. However, the LMO-approved employment offer clearly states that the duties of the position are for a cook specializing in “Indian/Cantonese Chinese Cuisine (Hakka food)”. 46 The evidence from the applicant’s previous employer, his cultural heritage and his nationality renders it difficult to find the reasonable grounds on which the officer could find the applicant unable to perform the work sought. Li v. Canada (MCI) John A. O’Keefe J. 95

47 A comparison of the employment duties listed in the LMO-approved employment offer and the applicant’s responsibilities and skills stated in the reference letters from his Indian employer also shows significant similarities: 1. Duties listed in LMO-approved employment offer: Specialization in Indian/Cantonese Chinese Cuisine (Hakka food); preparing the main sauces and marinades for meat and poultry; cooking, garnishing and presentation of food; preparing and cooking individual dishes and foods; ensuring quality of food; and determining size of food proportions. 2. Reference letter from Golden Empire Restaurant and Bar (India): Chef for all seasons, and particularly good in Asian foods preparations; training second cooks and junior kitchen staff; taking care of the discipline and neatness of kitchen staff; checking the presentation of food before it is served to the customers; and speaking with customers for food inquiries. 48 This evidence also contradicts the officer’s finding that the reference letters did not state the applicant’s qualifications. 49 In summary, the evidence before the officer, coupled with the limited guidance provided in the statutory provisions relating to workers work permit applications, renders this a situation in which procedural fairness demands that the officer give the applicant an opportunity to respond to his concerns. Although there is generally no obligation on an officer to make further inquiries when an application is ambiguous, this is an instance where the facts favour an exception to the rule. Therefore, in this case, the officer’s failure to grant the applicant the opportunity to respond to his concerns results in a denial of procedural fairness to the applicant. 50 Because of my finding on Issue 2, I need not deal with the remaining issue. 51 As a result of the breach of procedural fairness, the officer’s decision must be set aside and the matter referred to a different officer for redetermination. 52 Neither party wished to submit a proposed serious question of general importance for my consideration for certification. 96 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

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

Annex Relevant Statutory Provisions Immigration and Refugee Protection Act, SC 2001, c 27 72. (1) Judicial review by the Federal Court with respect to any matter — a decision, determination or order made, a measure taken or a question raised — under this Act is commenced by making an application for leave to the Court. Immigration and Refugee Protection Regulations, SOR/2002-227 75. (1) For the purposes of subsection 12(2) of the Act, the federal skilled worker class is hereby prescribed as a class of persons who are skilled workers and who may become permanent residents on the basis of their ability to become economically established in Canada and who intend to reside in a province other than the Province of Quebec. 200. (1) Subject to subsections (2) and (3) — and, in respect of a foreign national who makes an application for a work permit before entering Canada, subject to section 87.3 of the Act — an officer shall issue a work permit to a foreign national if, following an examination, it is established that (a) the foreign national applied for it in accordance with Division 2; (b) the foreign national will leave Canada by the end of the period authorized for their stay under Division 2 of Part 9; (c) the foreign national (i) is described in section 206, 207 or 208, (ii) intends to perform work described in section 204 or 205 but does not have an offer of employment to perform that work, (ii.1) intends to perform work described in section 204 or 205, has an offer of employ- Li v. Canada (MCI) John A. O’Keefe J. 97

ment to perform that work and an officer has determined (A) that the offer is genuine under subsection (5), and (B) that during the two-year period preceding the day on which the application for the work permit is received by the Department, (I) the employer making the offer provided each foreign national employed by the employer with wages, working conditions and employment in an occupation that were substantially the same as the wages, working conditions and occupation set out in the employer’s offer of employment to the foreign national, or (II) in the case where the employer did not provide wages, working conditions or employment in an occupation that were substantially the same as those offered, the failure to do so was justified in accordance with subsection 203(1.1), or (iii) has been offered employment, and an officer has made a positive determination under paragraphs 203(1)(a) to (e); and (d) [Repealed, SOR/2004-167, s. 56] (e) the requirements of section 30 are met. ... 200.(3) An officer shall not issue a work permit to a foreign national if (a) there are reasonable grounds to believe that the foreign national is unable to perform the work sought; 98 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

[Indexed as: Noh v. Canada (Minister of Citizenship & Immigration)] Jae Bok Noh; Eun Mi Hwang; Min Woo Nho; Min Ji Noh, Applicants and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-4772-11 2012 FC 529 James Russell J. Heard: March 26, 2012 Judgment: May 3, 2012 Immigration and citizenship –––– Admission — Application for temporary resident or immigrant visa — Best interests of child –––– Parents and two children came to Canada as visitors in 2000 and overstayed — Family applied for permanent residence in 2009 on humanitarian and compassionate grounds — Immigration officer found that unusual and undeserved or disproportionate hardship would not result from refusing application — Family applied for judicial review — Application granted — Decision was unreasonable as officer did not apply correct test to determining best interests of younger child — Child’s interests could be considered even though she was now over age 18 — In any event, ministerial guidelines applied age at time of application and child was then 17 — Officer relied on finding that child could re-adjust to life in South Ko- rea — Correct approach was to establish first what was in child’s best interests, second degree to which they would be compromised by refusal, and finally to determine weight that this factor should play in ultimate balancing of factors in application. Cases considered by James Russell J.: Baker v. Canada (Minister of Citizenship & Immigration) (1999), 1 Imm. L.R. (3d) 1, [1999] 2 S.C.R. 817, 14 Admin. L.R. (3d) 173, 174 D.L.R. (4th) 193, 1999 CarswellNat 1124, 1999 CarswellNat 1125, 243 N.R. 22, [1999] S.C.J. No. 39 (S.C.C.) — 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 Noh v. Canada (MCI) 99

Labour)) 304 N.R. 76, 50 Admin. L.R. (3d) 1, REJB 2003-41592, [2003] S.C.J. No. 28 (S.C.C.) — considered Cina v. Canada (Minister of Citizenship & Immigration) (2011), 2011 Car- swellNat 2080, 2011 FC 635, 2011 CF 635, 2011 CarswellNat 3892, 390 F.T.R. 271 (Eng.) (F.C.) — referred to Ebonka v. Canada (Minister of Citizenship & Immigration) (2009), 2009 CF 80, 2009 CarswellNat 4526, 2009 FC 80, 2009 CarswellNat 255 (F.C.) — considered Guleed v. Canada (Minister of Citizenship & Immigration) (2012), 2012 FC 22, 2012 CarswellNat 57, 2012 CarswellNat 368, 2012 CF 22 (F.C.) — referred to Herman v. Canada (Minister of Citizenship & Immigration) (2010), 2010 Car- swellNat 5818, 2010 CF 629, 2010 FC 629, 2010 CarswellNat 1745 (F.C.) — considered Karimzad v. Canada (Minister of Citizenship & Immigration) (2012), 2012 FC 152, 2012 CarswellNat 392, 2012 CF 152, 2012 CarswellNat 1245, [2012] F.C.J. No. 204, [2012] A.C.F. No. 204 (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 Kolosovs v. Canada (Minister of Citizenship & Immigration) (2008), 2008 CF 165, 2008 CarswellNat 745, 2008 FC 165, 2008 CarswellNat 281, 323 F.T.R. 181 (Eng.), [2008] F.C.J. No. 211 (F.C.) — considered Leobrera v. Canada (Minister of Citizenship & Immigration) (2010), 2010 FC 587, 369 F.T.R. 178 (Eng.), (sub nom. Saporsantos Leobrera v. Canada (Minister of Citizenship & Immigration)) [2011] 4 F.C.R. 290, 2010 Car- swellNat 1515, 2010 CF 587, 2010 CarswellNat 2588, [2010] F.C.J. No. 692 (F.C.) — considered Mooker v. Canada (Minister of Citizenship & Immigration) (2008), 2008 CF 518, 2008 CarswellNat 4530, 2008 CarswellNat 1313, 2008 FC 518, [2008] F.C.J. No. 713 (F.C.) — considered Mughrabi c. Canada (Ministre de la Citoyennet´e & de l’Immigration) (2008), 2008 CF 898, 2008 CarswellNat 3075, 2008 FC 898, [2008] F.C.J. No. 1115 (F.C.) — considered Muliadi v. Canada (Minister of Employment & Immigration) (1986), 18 Admin. L.R. 243, 66 N.R. 8, 1986 CarswellNat 674, 1986 CarswellNat 218, [1986] 2 F.C. 205 (Fed. C.A.) — considered Naredo v. Canada (Minister of Citizenship & Immigration) (2000), 7 Imm. L.R. (3d) 291, 192 D.L.R. (4th) 373, 2000 CarswellNat 1607, (sub nom. Naredo and Arduengo v. Canada (Minister of Citizenship and Immigration)) 187 F.T.R. 47, [2000] F.C.J. No. 1250 (Fed. T.D.) — considered 100 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1, 69 Admin. L.R. (4th) 1, 69 Imm. L.R. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) [2008] 1 S.C.R. 190, 844 A.P.R. 1, (sub nom. Dunsmuir v. New Brunswick) 2008 C.L.L.C. 220-020, D.T.E. 2008T-223, 329 N.B.R. (2d) 1, (sub nom. Dunsmuir v. New Brunswick) 170 L.A.C. (4th) 1, (sub nom. Dunsmuir v. New Brunswick) 291 D.L.R. (4th) 577, 2008 CarswellNB 124, 2008 CarswellNB 125, 2008 SCC 9, 64 C.C.E.L. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) 95 L.C.R. 65, [2008] S.C.J. No. 9, [2008] A.C.S. No. 9 (S.C.C.) — considered Pillai v. Canada (Minister of Citizenship & Immigration) (2008), 2008 Car- swellNat 5519, 2008 CF 1312, 2008 CarswellNat 4419, 2008 FC 1312, 339 F.T.R. 32 (Eng.), [2008] F.C.J. No. 506 (F.C.) — referred to Qureshi v. Canada (Minister of Citizenship & Immigration) (2009), 354 F.T.R. 256 (Eng.), 2009 CF 1081, 2009 CarswellNat 4478, [2010] 4 F.C.R. 256, 2009 CarswellNat 3328, 2009 FC 1081 (F.C.) — referred to Ramsawak v. Canada (Minister of Citizenship & Immigration) (2009), 2009 CF 636, 2009 CarswellNat 5688, 86 Imm. L.R. (3d) 97, 2009 FC 636, 2009 CarswellNat 3534, [2009] F.C.J. No. 1387, [2009] A.C.F. No. 1387 (F.C.) — referred to Ranji v. Canada (Minister of Public Safety & Emergency Preparedness) (2008), 2008 CarswellNat 1223, 2008 FC 521, 2008 CarswellNat 2429, 2008 CF 521, [2008] F.C.J. No. 675 (F.C.) — considered Sketchley v. Canada (Attorney General) (2005), 2006 C.L.L.C. 230-002, 2005 CAF 404, 2005 CarswellNat 5119, [2006] 3 F.C.R. 392, 2005 FCA 404, 2005 CarswellNat 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 Suresh v. Canada (Minister of Citizenship & Immigration) (2002), 2002 SCC 1, 37 Admin. L.R. (3d) 159, [2002] 1 S.C.R. 3, 2002 CarswellNat 7, 2002 Car- swellNat 8, 18 Imm. L.R. (3d) 1, 208 D.L.R. (4th) 1, 281 N.R. 1, 90 C.R.R. (2d) 1, [2002] S.C.J. No. 3, REJB 2002-27423 (S.C.C.) — referred to Swartz v. Canada (Minister of Citizenship & Immigration) (2002), 2002 CFPI 268, 2002 CarswellNat 1751, 2002 FCT 268, 2002 CarswellNat 516, 218 F.T.R. 23, 19 Imm. L.R. (3d) 1, [2002] F.C.J. No. 340 (Fed. T.D.) — referred to Tariku v. Canada (Minister of Citizenship & Immigration) (2007), 2007 Car- swellNat 4538, 67 Imm. L.R. (3d) 124, 2007 FC 474, 2007 CF 474, 2007 CarswellNat 1084 (F.C.) — referred to Tartchinska v. Canada (Minister of Citizenship & Immigration) (2000), 2000 CarswellNat 478, 185 F.T.R. 161, [2000] F.C.J. No. 373 (Fed. T.D.) — followed Thamotharampillai v. Canada (Minister of Citizenship & Immigration) (2003), 2003 CF 836, 2003 CarswellNat 3409, 29 Imm. L.R. (3d) 19, 2003 FC 836, Noh v. Canada (MCI) James Russell J. 101

2003 CarswellNat 2181, 237 F.T.R. 16, [2003] F.C.J. No. 246 (F.C.) — considered Thandal v. Canada (Minister of Citizenship & Immigration) (2008), 2008 CF 489, 2008 CarswellNat 1085, 2008 FC 489, 2008 CarswellNat 1958, [2008] F.C.J. No. 623 (F.C.) — considered Williams v. Canada (Minister of Citizenship & Immigration) (2012), 2012 Car- swellNat 382, 2012 FC 166, 2012 CF 166, 2012 CarswellNat 1330 (F.C.) — considered Yoo v. Canada (Minister of Citizenship & Immigration) (2009), 2009 Car- swellNat 877, 2009 FC 343, 80 Imm. L.R. (3d) 97, 343 F.T.R. 253 (Eng.) (F.C.) — referred to Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Generally — referred to s. 11(1) — considered s. 25 — considered s. 25(1) — considered s. 72(1) — pursuant to

APPLICATION by foreign nationals for judicial review of decision of immigration officer refusing to grant permanent residence on humanitarian and compassionate grounds.

Ronald Poulton, for Applicants Judy Michaely, 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 (Officer), dated 15 July 2011, which refused the Applicants’ application for permanent residence on humanitarian and compassionate (H&C) grounds under subsection 25(1) of the Act.

Background 2 The Applicants are all citizens of South Korea living in Canada without status. The Male Applicant and the Female Applicant are married; the Minor Applicants are their son, Min Woo, and daughter, Min Ji. 3 The Applicants came to Canada in July 2000 from Sri Lanka. At that time, Min Woo was 12 years old and Min Ji was 8 years old. They are 102 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

now 24 and 20 years old respectively. Citizenship and Immigration Can- ada (CIC) admitted the Applicants to Canada as visitors but denied them an extension of their visitor status on 31 January 2001. At that time, an immigration counsellor found that the Applicants had fulfilled the original purpose of their visit and were no longer bona fide visitors and issued voluntary departure orders against them. 4 The Applicants did not leave Canada after CIC denied their visitor extension. Instead, they began to build a life for themselves here: the Adult Applicants began to work and the Minor Applicants went to school. In the time they have been in Canada, Min Woo has completed high-school and now works in his father’s business. Min Ji has also completed high-school; she attended York University for one semester but left because she could no longer afford the tuition fees. At the same time, the Adult Applicants worked at several jobs. Currently, the Male Appli- cant owns a business (Sura Sushi) and the Female Applicant is also employed at Sura Sushi. 5 CIC received the Applicants’ application for permanent residence on 26 June 2009 (H&C Application). At that time, Min Woo was 21 years old and Min Ji was seventeen years old. In their submissions to support their H&C Application, the Applicants drew attention to their establishment in Canada, noting that the Male Applicant owns his own business and all of the Applicants are now assimilated into Canadian culture. They also highlighted the hardship they would face if they were returned to South Korea because the economic situation there gives them few prospects for employment. Finally, the Applicants said the Minor Applicants’ best interests favoured their staying in Canada with their parents. They noted the Minor Applicants have been educated in the Canadian system 1 for the 8 /2 years they have been in Canada and face large barriers to accessing post-secondary education in South Korea. 6 The Officer considered the Applicants’ H&C Application and refused it on 14 July 2011. She notified the Applicants by letter dated 15 July 2011.

Decision Under Review 7 The Decision in this case consists of the Officer’s letter of 15 July 2011 (Refusal Letter) and reasons for decision (Notes) which she signed on 14 July 2011. 8 The Refusal Letter informed the Applicants that the Officer had considered their H&C Application but had decided not to grant an exemp- Noh v. Canada (MCI) James Russell J. 103

tion in their case. It also informed the Applicants that they were without status in Canada and should depart Canada within 30 days. 9 The Notes reveal the Officer’s reasons for rejecting the H&C Appli- cation. She began by reviewing the grounds advanced by the Applicants to support their application, noting that they relied on their establishment, the hardship they would face, and the Minor Applicants’ best interests.

Establishment 10 The Officer noted that the Applicants have lived in Canada for some time and the Adult Applicants, except for brief periods, have been employed the whole time. She also noted that the Male Applicant has filed taxes since 2006, though she found he only did so because registration of his business made this unavoidable. Although the Applicants’ submissions said Sura Sushi employed two Canadian citizens and one permanent resident, the Officer found there was no evidence to prove this was the case. The Applicants submitted evidence to show they were involved in community groups and had developed relationships with family and friends in Canada, but the Officer found these activities were expected and common practice. 11 The Officer said she could not conclude the Applicants’ stay in Can- ada was outside their control. They stayed here after CIC issued departure orders in 2001 and could have gone back to South Korea. If they had left when they should have, the Applicants then could have returned to Canada with proper documentation.

Hardship 12 Although the Applicants said the economic situation in South Korea would cause hardship, the Officer found there was insufficient evidence before her to show they faced limited employment prospects there. The Applicants submitted documents to show South Korea was experiencing an economic crisis, but the Officer noted these documents were from 2008 and found she could not assume South Korea remains in crisis. She found the Male Applicant had transferable skills from his experience in Canada which would give him an advantage in South Korea. 13 The Applicants also said they did not have many contacts or a support network in South Korea, but the Officer found this was not the case. The Male Applicant has five siblings in South Korea. The Female Appli- cant’s parents live there as well, and the Applicants would have support from their family. Against the family the Applicants have in South Ko- 104 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

rea, the Officer balanced the fact that they have no family in Canada. She concluded that a return to South Korea would lead to building stronger family ties there. 14 The Officer said the Applicants had overcome obstacles in Canada to build a life here. She gave little weight to their assertion they would face obstacles on return to South Korea. The Officer also found their readjust- ment to life in South Korea would be less difficult than their adjustment to life in Canada had been.

Best Interests of the Children 15 When the Officer analyzed the Minor Applicant’s interests, she noted they had spent eight years in school in Canada. She also noted the Appli- cants’ submissions that the Minor Applicants are westernised, face barriers on return to South Korea, and have weak Korean language skills. The application also drew attention to the Adult Applicants’ inability to provide for the Minor Applicants in South Korea. 16 The Officer said she was alert and sensitive to the Minor Applicants’ interests. She found there was insufficient evidence that they would not be able to readjust to life in South Korea. The Officer also found they would have support from their parents, grandparents, and other family in South Korea. Further, the Officer found the Minor Applicants’ English skills would give them an advantage in South Korea. They could also return to Canada on study permits if they wanted to pursue a post-secondary education here.

Conclusion 17 Based on the evidence before her, the Officer found the Applicants had not demonstrated unusual and undeserved or disproportionate hardship. On that basis, she denied their request for permanent residence and an exemption from the normal requirement to apply for a permanent resident visa from outside of Canada.

Issues 18 The Applicants raise the following issues in this proceeding: a. Whether the Officer breached their right to procedural fairness by denying them the opportunity to respond and by relying on extrinsic evidence; b. Whether the Officer applied the wrong test for the best interests of a child; Noh v. Canada (MCI) James Russell J. 105

c. Whether the Officer applied the incorrect test for H&C Relief; d. Whether the Decision is unreasonable.

Standard of Review 19 The Supreme Court of Canada in New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9 (S.C.C.) held that a standard of review analysis need not be conducted in every instance. Instead, where the standard of review applicable to a particular question before the court is well-settled by past jurisprudence, the reviewing court may adopt that standard of review. Only where this search proves fruitless must the reviewing court undertake a consideration of the four factors comprising the standard of review analysis. 20 A decision-maker’s reliance on undisclosed extrinsic evidence is a breach of procedural fairness (see Tariku v. Canada (Minister of Citizenship & Immigration), 2007 FC 474 (F.C.) at paragraph 2 and Qureshi v. Canada (Minister of Citizenship & Immigration), 2009 FC 1081 (F.C.) at paragraph 14). Likewise, the opportunity to respond to a decision-maker’s concerns is also an issue of procedural fairness (see Karimzad v. Canada (Minister of Citizenship & Immigration), 2012 FC 152 (F.C.) at paragraph 10 and Guleed v. Canada (Minister of Citizenship & Immigration), 2012 FC 22 (F.C.) at paragraphs 11 and 12. 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 fairness 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 decisionmaker has either complied with the content of the duty of fairness appropriate for the particular circumstances, or has breached this duty.” The standard of review on the first issue is correctness. 22 In Herman v. Canada (Minister of Citizenship & Immigration), 2010 FC 629 (F.C.), Justice Paul Crampton held at paragraph 12 that the standard of review on the question of whether an officer applied the correct test in assessing an H&C application was correctness. Justice Michael Kelen made a similar finding in Ebonka v. Canada (Minister of Citizenship & Immigration), 2009 FC 80 (F.C.) at paragraph 16, as did Justice Michel Beaudry in Mooker v. Canada (Minister of Citizenship & Immigration), 2008 FC 518 (F.C.) at paragraph 15. Further, whether an 106 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

officer applied the proper test for where the best interest of a child lie is an issue which is to be evaluated on the correctness standard. See Pillai v. Canada (Minister of Citizenship & Immigration), 2008 FC 1312 (F.C.) at paragraph 32. The standard of review on the second and third issues is correctness. 23 In Baker v. Canada (Minister of Citizenship & Immigration), [1999] 2 S.C.R. 817 (S.C.C.), the Supreme Court of Canada held that, when reviewing an H&C decision, “considerable deference should be accorded to immigration Officers exercising the powers conferred by the legislation, given the fact-specific nature of the inquiry, its role within the statutory scheme as an exception, the fact that the decision-maker is the Min- ister, and the considerable discretion evidenced by the statutory language” (paragraph 62). Justice Michael Phelan followed this approach in Thandal v. Canada (Minister of Citizenship & Immigration), 2008 FC 489 (F.C.), at paragraph 7. The standard of review on the fourth issue is reasonableness. 24 When reviewing a decision on the standard of reasonableness, the analysis will be concerned with “the existence of justification, transparency and intelligibility within the decisionmaking process [and also with] whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.” See Dun- smuir, above, at paragraph 47, and Khosa v. Canada (Minister of Citizenship & Immigration), 2009 SCC 12 (S.C.C.) at paragraph 59. Put another way, the Court should intervene only if the Decision was unreasonable in the sense that it falls outside the “range of possible, acceptable outcomes which are defensible in respect of the facts and law.”

Statuory Provisions 25 The following provisions of the Act are applicable in this proceeding: 11. (1) A foreign national must, before entering Canada, apply to an officer for a visa or for any other document required by the regulations. The visa or document may be issued if, following an examination, the officer is satisfied that the foreign national is not inadmissible and meets the requirements of this Act. ... 25. (1) The Minister must, on request of a foreign national in Canada who is inadmissible or who does not meet the requirements of this Act, and may, on request of a foreign national outside Canada, examine the circumstances concerning the foreign national and may grant the foreign national permanent resident status or an exemption Noh v. Canada (MCI) James Russell J. 107

from any applicable criteria or obligations of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to the foreign national, taking into account the best interests of a child directly affected. [...] 11. (1) L’étranger doit, préalablement a` son entrée au Canada, de- mander a` l’agent les visa et autres documents requis par règlement. L’agent peut les délivrer sur preuve, a` la suite d’un contrôle, que l’étranger n’est pas interdit de territoire et se conforme a` la présente loi. ... 25. (1) Le ministre doit, sur demande d’un etranger´ se trouvant au Canada qui est interdit de territoire ou qui ne se conforme pas a` la présente loi, et peut, sur demande d’un etranger´ se trouvant hors du Canada, etudier´ le cas de cet etranger;´ il peut lui octroyer le statut de résident permanent ou lever tout ou partie des critères et obligations applicables, s’il estime que des considérations d’ordre humanitaire relatives a` l’étranger le justifient, compte tenu de l’intérêt supérieur de l’enfant directement touché. [...]

Arguments The Applicants Improper test for Best Interest of the Child 26 The Applicants say the Officer applied the wrong test when she analyzed the Minor Applicants’ interests. They point to Baker, above, where Justice L’Heureux-Dub´e said at paragraph 72 that [...]for the exercise of the discretion to fall within the standard of reasonableness, the decision-maker should consider children’s best interests as an important factor, give them substantial weight, and be alert, alive and sensitive to them. 27 The Applicants also note that Justice Douglas Campbell of this Court examined what it means for officers to be alert, alive, and sensitive to children’s best interests in Kolosovs v. Canada (Minister of Citizenship & Immigration), 2008 FC 165 (F.C.). 28 In this case, the Officer was not appropriately alert, alive, or sensitive to the Minor Applicants’ interests. She did not demonstrate any aware- ness of their needs, but simply found that they would be able to readjust to life in South Korea. She was also not alive to the fact the Minor Appli- 108 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

cants have spent many years in Canada or to the effect of relocation to South Korea on their education and well-being. The Officer further failed to consider how the Minor Applicants would suffer if they must leave Canada. Finally, the Officer did not consider how the Minor Applicants’ loss of their Korean language skills impacted their best interests. 29 The Applicants rely on Mughrabi c. Canada (Ministre de la Citoyennet´e & de l’Immigration), 2008 FC 898 (F.C.) at paragraph 23, where the Court set aside an officer’s decision because The Officer refers to no evidentiary basis for the conclusion that “children are resilient by nature...,” and he makes no attempt to engage with the specific advice he is given concerning the children involved in this case. Even if children are resilient by nature (which certainly does not accord with my experience), the Officer was not alert and alive to the interests of these specific children in the way that he dealt with the detailed psychological evidence before him. 30 Rather than looking at whether the Minor Applicants could adjust to life in South Korea, the Officer should have considered their dependency on their parents, their establishment in Canada, their links to South Ko- rea, and the impact of a return on their education. 31 The Officer was bound to consider the degree of hardship the Minor Applicants would face in South Korea but failed to do so. Although she said she was alert and sensitive to their interests, she concluded they would be able to readjust to life in South Korea. The Applicants point out that the issue before the Officer was whether, given their education in Canada, their establishment here, and their language limitations in Korea, it is in the Minor Applicants best interests to be deported or to remain in Canada. Having determined where the Minor Applicants’ best interests lay, the Officer was required to balance them against the other factors in the H&C Application. 32 Rather than determining where the Minor Applicants’ interests lay and balancing them against the other factors in the H&C Application, the Officer only examined whether they would be able to adjust to life in Korea. She found they would and that they could return to Canada on study permits if they chose to do so. This analysis, in addition to being improper, was unreasonable.

Extrinsic Evidence and Procedural Fairness 33 The Applicants also argue that the Decision should be set aside because the Officer relied on extrinsic evidence without giving them an Noh v. Canada (MCI) James Russell J. 109

opportunity to comment on it. They point to Muliadi v. Canada (Minister of Employment & Immigration), [1986] 2 F.C. 205 (Fed. C.A.) where the Federal Court of Appeal held at paragraph 14 that [...] Nevertheless, I think it was the officer’s duty before disposing of the application to inform the appellant of the negative assessment and to give him a fair opportunity of correcting or contradicting it before making the decision required by the statute. It is, I think, the same sort of opportunity that was spoken of by the House of Lords in Board of Education v. Rice, [1911] A.C. 179 in these oft-quoted words of Lord Loreburn L.C., at page 182: They can obtain information in any way they think best, always giving a fair opportunity to those who are parties in the controversy for correcting or contradicting any relevant statement prejudicial to their view. Those words have application here even though a full hearing was not contemplated. (Kane v. Board of Governors (University of British Columbia), [1980] 1 S.C.R. 1105, at page 1113; see also Randolph, Bernard et al. v. The Queen, [1966] Ex.C.R. 157, at page 164.) 34 In this case, the Officer relied on extrinsic evidence that their skills in English will give the Minor Applicants an advantage in South Korea. The Officer did not put whatever evidence she had on this point to the Applicants. Although the burden of proof rests on the Applicants to satisfy the requirements for granting their H&C Application, this does not relieve the Officer of the duty to act fairly (see Muliadi, above, at paragraph 17). The Applicants point to Thamotharampillai v. Canada (Minister of Citizenship & Immigration), 2003 FC 836 (F.C.), where Jus- tice Elizabeth Heneghan held that non-disclosure of a document breached an H&C applicant’s right to procedural fairness. The Officer in this case committed the same reviewable error.

Student Visa 35 The Applicants also argue that the Officer’s conclusion that the Mi- nor Applicants can come to Canada on student visas is unreasonable because it ignores evidence. The Officer did not consider that they are subject to removal orders and so would require a discretionary authorization to return. The Minor Applicants’ ability to return to study on student visas is not certain. The Officer also did not take into account the likelihood of their obtaining a student visa, or the fact they would be unable to live in Canada without their parents. 110 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

Unusual and Undeserved Hardship 36 The Applicants further argue that the Officer based her Decision on the Minor Applicants’ ability to leave Canada, and the hardship they would face from being removed. The Officer said that the “Applicants could have chosen to return to [South] Korea in 2001, obtained study and work permit documents at the Canadian visa office, and returned to Can- ada with proper immigration documentation.” This shows the Officer was assessing the hardship the Minor Applicants would face if removed, which the Court has held is inappropriate for assessing the interests of children.

Decision is Unreasonable 37 The Applicants also say the Decision is unreasonable because the Of- ficer inappropriately analysed their establishment in Canada. The Officer held that, while their employment history was commendable, the Adult Applicants worked in Canada without status. She also found their stay in Canada was within their control. The Officer failed to examine how the Applicants would suffer when she unduly focussed on their ability to leave Canada in 2001. The Officer did not appropriately apply CIC’s manual IP-5 — Immigrant Applications in Canada made on Humanita- rian and Compassionate Grounds (Guidelines) which says at page 12 that Sufficient humanitarian and compassionate grounds may also exist in cases that do not meet the “unusual and undeserved” criteria but where the hardship of not being granted the requested exemption(s) would have an unreasonable impact on the applicant due to their personal circumstances. 38 The Officer did not set out the positive establishment factors in the H&C Application or explain why these did not amount to disproportionate hardship. The Applicants point to Ranji v. Canada (Minister of Public Safety & Emergency Preparedness), 2008 FC 521 (F.C.), paragraphs 22 to 25, where Justice Russel Zinn held that: When the officer concluded that the evidence of establishment was no greater than is “naturally expected of him”, that determination was required to be made based on the particular circumstances of the Applicant. Therefore, the officer must consider the evidence presented with respect to the background and characteristics of the Applicant. Noh v. Canada (MCI) James Russell J. 111

Mr. Ranji came to Canada approximately 10 years ago. He has only a grade eight education in India and was a farmer there. He is neither well-educated nor skilled. Despite those circumstances, he has been continuously employed, save for a two month period, in unskilled positions earning no more than $50,000 annually but has managed to accumulate a sizable bank account, co-purchase a residence with his brother, develop a significant equity in the residence, purchase an RRSP, financially support his family in India including sending his two children to private school in India, and has provided letters of support from community and social groups for his activities with them. The officer made no reference to Mr. Ranji’s personal circumstances as set out above and there is no evidence that the officer considered them in concluding that he did no more than was naturally expected of him. 39 The Officer’s assessment in this case should have looked at the Ap- plicants’ relative gain and how difficult it would be for them to give this up. The Officer did not do this and inappropriately held what should have been positive factors in their application against the Applicants.

The Respondent 40 The Respondent argues the Court should not interfere with the Deci- sion because the Officer put appropriate weight on all the factors put forward by the Applicants in their H&C Application. An H&C exemption is an exceptional and discretionary remedy which gives special and additional consideration to applicants. The denial of an H&C exemption does not take any right away from the affected individual.

Officer Appropriately Analysed the Minor Applicants’ Interests 41 The Officer reasonably assessed the interests of the Minor Appli- cants. The Applicants are simply complaining about the weight she assigned to the factors in their application. The Officer also applied the correct test for the best interests of the children and appropriately considered the family the Minor Applicants had in South Korea, their health, their ability to obtain employment or education in South Korea, and other factors. Although the Applicants rely on Kolosovs, above, in which the Court held the best interests of adult children should be assessed, this one case is not binding on the Court. 42 The best interests of an affected child analysis was immaterial to this H&C Application because the Minor Applicants are now adults. In 112 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

Leobrera v. Canada (Minister of Citizenship & Immigration), 2010 FC 587 (F.C.), Justice Michel Shore had the following to say on point at paragraphs 79 and 80: As has been shown, the definition of “child” is undefined in the IRPA and the jurisprudence makes it clear that the best interests of the child analysis has a special relationship with the Convention on the Rights of the Child. Therefore, the Court is of the opinion, based on the above reasoning, that the importance that the Convention on the Rights of the Child has been unduly minimized by the earlier jurisprudence on this matter. Although the Court is sympathetic to the position of the Applicant, as the policy behind analyzing the best interests of the child is, as recognized by the Convention on the Rights of the Child, partially based on the physical and mental vulnerabilities of children; and it also recog- nizes that persons with disabilities may also be vulnerable, to varying degrees, the Court cannot agree that dependency and vulnerability are the defining characteristics of “childhood” for the purposes of section 25. The Court consequently finds that dependent adults should not be included in the analysis of the best interests of the child. 43 Further, the Guidelines say at page 15 that BIOC must be considered when a child is under 18 years of age at the time the application is received. There may, however, be cases in which the situation of older children is relevant and should be taken into consideration in an H&C assessement [sic]. If, however, they are not under 18 years of age, it is not a best interests of the child case. 44 As the Officer was not obligated to consider the Minor Applicants’ best interests, no reviewable error can result from her analysis of this factor.

No extrinsic Evidence 45 The Officer did not rely on extrinsic evidence. When the Officer said the Minor Applicants’ English skills would be an advantage in South Ko- rea, she was giving her opinion based on common sense. Further, this finding was not used against the Applicants; they said they would be dis- advantaged by a return to South Korea but the Officer found they would actually have an advantage there. The Minor Applicants’ English skills were only one of several factors the Officer considered. Noh v. Canada (MCI) James Russell J. 113

Study Permit 46 Although the Applicants take issue with the Officer’s finding that the Minor Applicants could return to Canada on a study permit, the Respon- dent says this was a reasonable finding. They can apply for a study permit at any time.

Appropriate Test 47 The Officer did not err by applying a hardship test to the Minor Ap- plicants. She applied the best interest of the child test as well as the unusual and undeserved or disproportionate hardship test. The unusual and undeserved or disproportionate hardship test is the usual test applied under subsection 25(1), so it was reasonable for the Officer to apply it.

Discretion to Weigh Factors 48 Finally, the Respondent says the Officer had the discretion to weigh all the factors in this H&C Application and did so appropriately. The Applicants have not shown that the Officer exercised her discretion un- reasonably, so the Court should not interfere. Further, the Applicants simply disagree with the weight given to the various factors at play. It is inappropriate for the Court to re-weigh these factors (see Suresh v. Canada (Minister of Citizenship & Immigration), 2002 SCC 1 (S.C.C.) at paragraphs 34, 37, and 39).

The Applicants’ Reply 49 The Applicants say that an H&C Application is not special and additional consideration; it is actually a consideration entrenched in the Act. Baker, above, establishes that profound rights and interests are affected by H&C determinations. 50 The Applicants also say their complaint is not with how the Officer weighed the factors in their H&C Application. What they challenge is her failure to consider the time the Minor Applicants have spent in Can- ada, her inappropriate analysis of their English skills, and her assumption that they could return to Canada on a student visa. The Officer did not meaningfully grapple with the Minor Applicants’ interests arising from the eight years they have been here. 51 Although the Respondent has said Kolosovs, above, is not binding, the Applicants say that judicial comity binds this Court to follow that decision. None of the exceptions to the judicial comity principal apply her, so the Court must decide their case in accord with Kolosovs (see 114 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

Cina v. Canada (Minister of Citizenship & Immigration), 2011 FC 635 (F.C.)). 52 The Applicants say that Justice Shore’s comments in Leobrera, above, are obiter and the Officer was bound to consider the Minor Appli- cants’ best interests. They point to Yoo v. Canada (Minister of Citizenship & Immigration), 2009 FC 343 (F.C.), Ramsawak v. Canada (Minister of Citizenship & Immigration), 2009 FC 636 (F.C.), and Naredo v. Canada (Minister of Citizenship & Immigration), [2000] F.C.J. No. 1250 (Fed. T.D.)). 53 Further, it is no answer to the breach of procedural fairness alleged by the Applicants for the Respondent to say that the Officer’s finding that English is an advantage is simply her opinion. As Min Woo said in his affidavit on judicial review: I have read the [Decision]. In it, [the Officer] states that English language skills are highly desired in [South] Korea so that my sister and I will be at an advantage. I do not know where [she] got this information. [She] certainly did not share it with us and allow us to comment. If [she] had, we would have explained to [her] that English skills do not lead to better jobs or educational opportunities in Korea. It may be true that the English language is desired by people so that they can leave the country. But in re-settling in [South] Korea, knowing English will provide no advantage. 54 The Officer was required to put whatever information she relied on for this conclusion to the Applicants and to give them an opportunity to respond. 55 The Minor Applicants will not be issued a study permit if they apply for one and the Officer was wrong to say they could return to Canada in this way.

Analysis 56 The Applicants have gone to considerable lengths to characterize this Decision as being either unreasonable or procedurally unfair. Some of their arguments are attempts to introduce undue complexities into what is really a very simple Decision; and some of their assertions about what is not addressed in the Decision are simply inaccurate. 57 What the Officer says about establishment is entirely appropriate given the fact that the Applicants chose to stay in Canada after receiving voluntary departure orders in January 2001 and to live and work here without the required immigration documents. As the Officer says, “the Noh v. Canada (MCI) James Russell J. 115 applicants have worked without status their entire time in Canada.” So the Applicants are attempting to use their unauthorized time and work here as a means of acquiring status in Canada. The Applicants are asking to be rewarded and credited for their unauthorized stay and work in Can- ada in a way that would be unfair to those who conduct themselves in accordance with the rules of our immigration system. This Court has said that people such as the Applicants cannot be credited in this way. The words of Justice Nadon in Tartchinska v. Canada (Minister of Citizenship & Immigration), [2000] F.C.J. No. 373 (Fed. T.D.), at paragraphs 21 and 22 are relevant to much of what the Applicants have done in the present case: More importantly, the Guidelines certainly do not suggest that an applicant must pursue self-sufficiency at all cost and without regard to the means. I therefore disagree with the Applicants’ argument that “[i]t is irrelevant whether self-sufficiency is pursued with or without a work permit.” In my opinion, the source of one’s self-sufficiency is very relevant; otherwise, anyone could claim an exemption on the basis of self-sufficiency even if that self-sufficiency derived from illegal activities. I appreciate that in this case the Applicants worked honestly, albeit illegally. Nonetheless, the Applicants knowingly attempted to circumvent the system when they chose to continue working without authorization. Indeed, despite being told during their first interview that they were not authorized to work and that they should cease, there was no indication that the Applicants had given up their employment at the time of the second interview. Moreover, their lawyer had cautioned them about the risks of working without a work permit as well as on the ostensible benefit of showing self-sufficiency (regardless of its source), and they chose to remain in Canada and work illegally. I understand that the Applicants hoped that accumulating time in Canada despite a departure order against them might be looked on favourably insofar as they could demonstrate that they have adapted well to this country. In my view, however, applicants cannot and should not be “rewarded” for accumulating time in Canada, when in fact, they have no legal right to do so. In a similar vein, self-sufficiency should be pursued legally, and an applicant should not be able to invoke his or her illegal actions to subsequently claim a benefit such as a Ministerial exemption. Finally, I take note of the obvious: the purpose of the exemption, in this case, was to exempt the Appli- cants from the requirement of applying for status from abroad, not to exempt them from other statutory provisions such as the requirement of a valid work permit. 116 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

58 In any event, in considering establishment, I think the Officer does consider what the Applicants have achieved here in light of the way they have achieved it and concludes, reasonably in my view, that a return to South Korea will not subject them to unusual and undeserved or disproportionate hardship. 59 Nor do I think the Officer, as alleged by the Applicants, blames the children for this situation and subjects them to an unusual and undeserved or disproportionate hardship test. The Officer conducts a totally separate analysis of the Minor Applicants’ best interests and then explains why this should not tip the balance in the Applicants’ favour. 60 The Applicants’ assertions that the Officer makes no mention of their lengthy residence in Canada or the impact of removal upon the children’s education, and does not consider the suffering involved in their return to South Korea, are simply wrong. A reading of the Decision reveals that the Officer is fully aware of what is at stake for this family, acknowledges the difficulties they will face, but also explains why these problems do not warrant a section 25 exemption. 61 The only real issue for consideration, in my view, is whether the Of- ficer conducted a reasonable and appropriate analysis of the Minor Ap- plicants’ best interests. 62 The Respondent says that they were not really children so that a BIOC analysis was not necessary, and certainly would not be necessary if this matter is returned for reconsideration. 63 It seems to me, however, that it was within the Officer’s discretion to treat them as children and, if returned, a similar determination will have to be made. I do not see the jurisprudence of this Court as requiring an automatic loss of child status at 18 years of age. Justice Frederick Gibson dealt with a similar situation in Naredo, above, and had this to say at paragraph 20: [...] I conclude, against the requirements set out in Baker, that the analysis reflected in the reasons for the immigration officer’s decision, as they relate to the interests of the applicants’ children, is entirely insufficient; and I reach this conclusion bearing in mind the ages of the applicants’ children, only one of whom was 18 or under at the date of the decision under review. Indeed, at that time, he was very close to 19 years of age. The two sons of the applicants, whatever their ages, remained “children” of the applicants who could reasonably be expected to be dramatically affected by the removal from Canada of their parents. Noh v. Canada (MCI) James Russell J. 117

[emphasis added] 64 Subsequent decisions of this Court have applied Justice Gibson’s reasoning over similar objections from the Respondent. See Swartz v. Canada (Minister of Citizenship & Immigration), 2002 FCT 268 (Fed. T.D.) at paragraph 14, Ramsawak, above, at paragraph 18, and Yoo, above, at paragraphs 29 and 30. 65 It was also established on the evidence before the Officer that Min Ji (the daughter) was seventeen at the time the Applicants filed their H&C Application. The Respondent argues that, because she is now 20 years old, this excuses the Officer from having to consider her best interests. I disagree. The Respondent’s own Guidelines say that “[the best interests of the child] must be considered when a child is under 18 years of age at the time the application is received.” In the face of this clearly articulated and publicly available ministerial guideline, the Applicants had a legitimate expectation that the Officer would consider, at least, Min Ji’s best interests. 66 In this case (and others like it) we have H&C applicants who could have benefited from the best interests of a child who has aged out of the protection solely because of the time between the filing of the application and its consideration by the Respondent. It seems to me that to hold that officers are not required to consider the best interest of a child directly affected in this situation would ignore the reality that administrative delays in processing applications generally lie at the Respondent’s feet. In my view, it is no answer for the Respondent to rely on his own tardiness in evaluating the Applicant’s H&C Application to extinguish an obligation he would have been under had he acted promptly. As such, the Of- ficer was bound to consider Min Ji’s best interests when evaluating the H&C Application in this case. 67 With that said, I think the Officer’s deficient analysis with respect the Min Ji’s best interests means the Decision must be returned for reconsideration. It is well established that an H&C decision maker must be alert, alive, and sensitive to the best interests of any child directly affected by a decision. This means that the child’s interests must be identified and defined and given primary consideration. 68 In this case, the Officer failed to appropriately identify Min Ji’s interests. Although the Officer was aware of the basic facts of the application — Min Ji lacked strong Korean language skills and would face barriers to post-secondary education, for example — she failed to determine whether, in the context of the evidence before her, it was in Min Ji’s best 118 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

interests to stay in Canada or return to South Korea. She also did not assess whether it was in Min Ji’s interests for her parents and brother to remain in Canada with her, or for them to return to South Korea. 69 Rather than meeting her obligation to assess what was in Min Ji’s best interest and weighing this against the other factors in the H&C Ap- plication, the Officer found “there is insufficient evidence to support that the children would not be able to readjust to life in Korea.” Whether Min Ji could adjust to life in South Korea or not was not the test. As I recently said in Williams v. Canada (Minister of Citizenship & Immigration), 2012 FC 166 (F.C.), at paragraphs 63 to 70: When assessing a child’s best interests an Officer must establish first what is in the child’s best interest, second the degree to which the child’s interests are compromised by one potential decision over another, and then finally, in light of the foregoing assessment determine the weight that this factor should play in the ultimate balancing of positive and negative factors assessed in the application. There is no basic needs minimum which if “met” satisfies the best interest test. Furthermore, there is no hardship threshold, such that if the circumstances of the child reach a certain point on that hardship scale only then will a child’s best interests be so significantly “nega- tively impacted” as to warrant positive consideration. The question is not: “is the child suffering enough that his “best interests” are not being “met”? The question at the initial stage of the assessment is: “what is in the child’s best interests?” For example, officers should not discontinue their consideration of what is in a child’s best interests after determining that the child is not being beaten or malnourished, [...], is not being outright denied medical care [or whether the child will be able to adjust to life in the new country]. In order to be properly “alert, alive and sensitive to” a child’s best interest, the task that is specifically before an officer is to have regard to the child’s circumstances, from the child’s perspec- tive, and then determined what is in [her] best interest. As was noted by the Federal Court of Appeal in Hawthorne [2002 FCA 474], and by this Court in Arulraj [2006 FC 529] and Shchegolevich [2008 FC 527], a child will rarely, if ever, be deserv- ing of any level of hardship. As a result, a threshold test of undeserved or undue hardship or a threshold “basic needs” approach to a best interests analysis, like that applied by the Officer in this case, does not adequately determine - in a way that is “alert, alive and sensitive” - what is in the child’s best interest. Noh v. Canada (MCI) James Russell J. 119

A child’s best interests are certainly not determinative of an H&C application and are but one of many factors that ultimately need to be assessed. However, requiring that certain interests not be “met” or that a child “suffer” a certain amount before this factor will weigh in favour of relief, let alone be persuasive in the decision, contradicts well-established principle that officers must be especially alert, alive and sensitive to the impact of the decision from the child’s perspec- tive. Furthermore, this would seem to contradict the instruction of the Supreme Court of Canada that this factor be a primary consideration in an H&C application that must not be minimized. In Baker, above, the Supreme Court of Canada held that for the exercise of discretion under subsection 25(1) of the Act to fall within the standard of reasonableness, the decision-maker must consider the child’s best interests as an important factor, give them substantial weight, and be alert, alive and sensitive to them. Justice L’Heureux- Dub´e wrote at paragraph 75 that ...for the exercise of the discretion to fall within the standard of reasonableness, the decision-maker should consider children’s best interests as an important factor, give them substantial weight, and be alert, alive and sensitive to them. That is not to say that children’s best interests must always outweigh other considerations, or that there will not be other reasons for denying an H & C claim even when children’s interests are given this consideration. However, where the interests of children are minimized, in a manner inconsistent with Canada’s humanitarian and compassionate tradition and the Minister’s guidelines, the decision will be unreasonable. [Emphasis added] At paragraph 73 of Baker, the Supreme Court of Canada stated: The above factors indicate that emphasis on the rights, interests, and needs of children and special attention to childhood are important values that should be considered in reasonably interpreting the “humanitarian” and “compassionate” considerations that guide the exercise of the discretion. I conclude that because the reasons for this decision do not indicate that it was made in a manner which was alive, attentive, or sensitive to the interests of Ms. Baker’s children, and did not consider them as an important factor in making the decision, it was an unreasonable 120 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

exercise of the power conferred by the legislation, and must, therefore, be overturned. In Kolosovs, above, the Federal Court described what it means to be open and sensitive to the best interests of children, in the following terms: It is only after a visa officer has gained a full understanding of the real life impact of a negative H&C decision on the best interests of a child can the officer give those best interests sensitive consideration. To demonstrate sensitiv- ity, the officer must be able to clearly articulate the suffering of a child that will result from a negative decision, and then say whether, together with a consideration of other factors, the suffering warrants humanitarian and compassionate relief. [Emphasis added] 70 In this case, the Officer focused on whether Min Ji would be able to adjust to life in South Korea without applying the appropriate test for her best interests. This was a reviewable error. 71 Judicial review is therefore granted and the Decision is returned for reconsideration. I specifically direct the officer who reconsiders this application consider Min Ji’s best interests according to the test I have articulated above. 72 Counsel agree there is no question for certification and the Court concurs.

Judgment THIS COURT’S JUDGMENT is that 1. The application is allowed. The decision is quashed and the matter is returned for reconsideration. 2. There is no question for certification. Application granted. Tursunbayev v. Canada (MPS & EP) 121

[Indexed as: Tursunbayev v. Canada (Minister of Public Safety & Emergency Preparedness)] Rustem Tursunbayev, Applicant and The Minister of Public Safety and Emergency Preparedness, Respondent Federal Court Docket: IMM-2877-12 2012 FC 504 Anne Mactavish J. Heard: April 16, 2012 Judgment: May 2, 2012 Immigration and citizenship –––– Enforcement — Arrest and detention — Detention review — Procedure –––– T, citizen of Kazakhstan, was permanent resident of Canada — Following receipt of Interpol “Red Notice”, FINTRAC report, and two inadmissibility reports issued pursuant to s. 44 of Immigration and Refugee Protection Act, T was arrested and detained on immigration warrant — Immigration and Refugee Board concluded that his detention should continue as he was unlikely to appear for his admissibility hearing — T applied for judicial review, alleging that representations made by minister’s representative at third detention review hearing were misleading — Application granted on other grounds — Minister’s representative did not have positive obligation to disclose existence of extradition request during detention review, as no authority to proceed had been issued — To extent that statement by minister’s representative that he could not say with 100 per cent certainty whether Kazakhstan had sought T’s extradition might be understood as representation of state of his personal knowledge as to existence of extradition request, statement was untrue — When he made statement, minister’s representative knew that Canada had received request from Kazakhstan for T’s extradition — While statement was arguably misleading, it was also arguable that minister’s representative was saying he could not state with 100 per cent certainty that extradition request had been made based on evidence before tribunal — Minister’s representative did not mislead board. Immigration and citizenship –––– Enforcement — Arrest and detention — Grounds — Person unlikely to appear for future proceedings –––– T, citizen of Kazakhstan, was permanent resident of Canada — Following receipt of In- terpol “Red Notice”, FINTRAC report, and two inadmissibility reports issued pursuant to s. 44 of Immigration and Refugee Protection Act, T was arrested and detained on immigration warrant — Immigration and Refugee Board concluded that his detention should continue as he was unlikely to appear for his admissi- 122 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th) bility hearing — T applied for judicial review, alleging that board erred in finding that he was unlikely to appear for his admissibility hearing — Application granted — Board made number of errors in its assessment of flight risk posed by T — Board did not improperly shift burden of proof to T — Board did not err in concluding that T was fugitive from justice, or by using general evidence of corruption within Kazakhstan as basis for finding that T must himself have been involved in corrupt activity — Board erred in requiring T to demonstrate that there was “absolutely no basis” to minister’s allegations before relative strength of minister’s case could weigh in favour of his release from detention — Evi- dence contained in Amnesty International report concerning use of torture in Kazakhstan to obtain confessions was directly relevant to central finding made by board relating to legitimacy of charges against T — Board’s failure to mention or analyze this evidence constituted material error and rendered its decision unreasonable — Board had concerns about T’s credibility based, in part, on alleged inconsistency in information he provided to Canadian immigration officials about his past employment — It was unreasonable and unfair for board to base negative credibility finding on this alleged inconsistency without giving T opportunity to address its concerns — Matter remitted to board for new detention review. Immigration and citizenship –––– Enforcement — Arrest and detention — Grounds — Miscellaneous –––– T, citizen of Kazakhstan, was permanent resident of Canada — Following receipt of Interpol “Red Notice”, FINTRAC report, and two inadmissibility reports issued pursuant to s. 44 of Immigration and Refugee Protection Act, T was arrested and detained on immigration warrant — Immigration and Refugee Board concluded that his detention should continue as he was unlikely to appear for his admissibility hearing — T applied for judicial review, alleging that board erred in concluding that there were no alternatives to his continued detention — Application granted — T provided board with com- prehensive proposal whereby any flight risk could allegedly be managed — Board made number of errors in its assessment of alternatives to detention he proposed — Board did not err in its assessment of suitability of three of sureties offered by T or sufficiency of amounts of bonds offered by two of them — However, board appeared not to have understood nature of undertaking offered by head of private security company as means of ensuring that it complied with its obligations to monitor T’s whereabouts — No consideration was given in board’s reasons of efficacy of surveillance cameras to monitor T’s movements, and there was no discussion as to whether physical surveillance of T on round- the-clock basis would be sufficient to manage any risk of flight — Board erred in failing to properly consider appropriateness of overall proposal offered by T as alternative to his continued detention — Board’s failure to properly consider some of elements of T’s proposal meant that its assessment of overall adequacy of proposed release plan was unreasonable — Matter remitted to board for new detention review. Tursunbayev v. Canada (MPS & EP) 123

Cases considered by Anne Mactavish J.: Canada (Minister of Citizenship & Immigration) v. B188 (2011), 2011 CF 94, 2011 CarswellNat 1001, 2011 FC 94, 2011 CarswellNat 183, 383 F.T.R. 114 (Eng.) (F.C.) — referred to Canada (Minister of Citizenship & Immigration) v. Thanabalasingham (2004), 2004 FCA 4, 2004 CarswellNat 22, 236 D.L.R. (4th) 329, 315 N.R. 91, 247 F.T.R. 159 (note), 10 Admin. L.R. (4th) 285, 38 Imm. L.R. (3d) 1, [2004] 3 F.C.R. 572, 2004 CarswellNat 782, 2004 CAF 4, [2004] F.C.J. No. 15 (F.C.A.) — considered Cepeda-Gutierrez v. Canada (Minister of Citizenship & Immigration) (1998), 157 F.T.R. 35, 1998 CarswellNat 1981, [1998] A.C.F. No. 1425, [1998] F.C.J. No. 1425 (Fed. T.D.) — referred to Doré c. Québec (Tribunal des professions) (2012), (sub nom. Doré v. Barreau du Québec) 428 N.R. 146, 34 Admin. L.R. (5th) 1, 2012 CarswellQue 2048, 2012 CarswellQue 2049, 2012 SCC 12, (sub nom. Doré v. Barreau du Qué- bec) 343 D.L.R. (4th) 193, [2012] S.C.J. No. 12, [2012] A.C.S. No. 12 (S.C.C.) — considered Hassan v. Canada (Minister of Employment & Immigration) (1992), 147 N.R. 317, 1992 CarswellNat 562, [1992] F.C.J. No. 946 (Fed. C.A.) — referred to 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 Statutes considered: Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 Generally — referred to s. 7 — referred to Immigration and Refugee Protection Act, S.C. 2001, c. 27 Generally — referred to s. 44 — considered s. 58 — considered Rules considered: Federal Courts Immigration and Refugee Protection Rules, SOR/93-22 Generally — referred to R. 22 — considered 124 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

Regulations considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Immigration and Refugee Protection Regulations, SOR/2002-227 Generally — referred to s. 245 — considered s. 248(e) — considered Words and phrases considered: fugitive from justice The term [“fugitive from justice”] is broad enough to include individuals who are sought by law enforcement officials in their country of origin, who were aware of an ongoing investigation that could implicate them in criminal conduct at the time that they left the country, and who have no intention of voluntarily returning to face the charges.

APPLICATION for judicial review by decision of Immigration Division of Im- migration and Refugee Board, refusing to release applicant from detention.

Lorne Waldman, Brian Heller, Murray H. Shore, for Applicant Lorne McClenaghan, for Respondent

Anne Mactavish J.:

1 Rustem Tursunbayev seeks judicial review of a decision of the Immi- gration Division of the Immigration and Refugee Board refusing to release him from detention. 2 For the reasons that follow, I have concluded that the Board made a number of errors both in its assessment of the flight risk posed by Mr. Tursunbayev and in its assessment of the alternatives to detention that he proposed. As a consequence, the application for judicial review will be allowed and the matter will be remitted to the Board for a new detention review.

1. Background 3 Mr. Tursunbayev is a citizen of Kazakhstan and a permanent resident of Canada. He is also a former Vice-President of Kazatomprom, the state-owned uranium company in Kazakhstan. 4 Following the receipt of an Interpol “Red Notice”, a FINTRAC report, and the issuance of two inadmissibility reports made pursuant to section 44 of the Immigration and Refugee Protection Act, S.C. 2001, c. Tursunbayev v. Canada (MPS & EP) Anne Mactavish J. 125

27, Mr. Tursunbayev was arrested and detained by the Canada Border Services Agency (CBSA) on an immigration warrant. 5 One inadmissibility report alleges that there are reasonable grounds to believe that Mr. Tursunbayev is inadmissible to Canada due to his membership in a criminal organization which is responsible for a complex and systematic scheme to defraud Kazatomprom and its subsidiaries of significant monetary assets. 6 The second inadmissibility report alleges that Mr. Tursunbayev used a series of off-shore companies and bank accounts to transfer a considerable amount of money out of Kazakhstan. The report further alleges that the source of these funds was criminal in nature. 7 Mr. Tursunbayev’s detention was reviewed twice — once within 48 hours of his arrest, and again within seven days of his first detention review. On both occasions the Board concluded that Mr. Tursunbayev’s detention should continue as he was unlikely to appear for his admissibility hearing. 8 Mr. Tursunbayev’s third detention review took place several weeks later. He provided a considerable volume of documentary material to the Board in connection with this hearing. Viva voce evidence was also adduced by Mr. Tursunbayev in support of his release. 9 The Board nevertheless concluded that Mr. Tursunbayev’s detention should be continued. This application for judicial review relates to that decision.

2. Procedural History 10 This proceeding has a somewhat unusual history. The decision under review is dated March 21, 2012. Mr. Tursunbayev’s next detention review was scheduled for Wednesday, April 18, 2012. 11 Mr. Tursunbayev was concerned that his application for leave and for judicial review of the Board’s March 21, 2012 decision would be rendered moot if it was not heard prior to his next detention review. As a consequence, he brought a motion to have the hearing of his application for leave and for judicial review expedited. 12 By order dated April 4, 2012, Prothonotary Milczynski ordered that the application for leave and for judicial review be expedited, and that the matter be set down for hearing on the General Sittings list for Mon- day, April 16, 2012. 126 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

13 Following the hearing of the application, and at the request of Mr. Tursunbayev, I ordered an interim stay of his next detention review pending my decision in this matter.

3. The Legality of Mr. Tursunbayev’s Arrest 14 Mr. Tursunbayev asserted before the Board that his arrest and detention were illegal as there was no direction for an admissibility hearing in place at the time the warrant for his arrest was issued. As a consequence, there was no legitimate immigration purpose to either his arrest or his detention. 15 Although Mr. Tursunbayev provided detailed arguments on this point in his memorandum of fact and law, he acknowledged at the hearing that this issue is currently before Justice Russell in a related proceeding. Mr. Tursunbayev indicated that he would not be pursuing the issue before me and I make no finding in this regard. 16 Mr. Tursunbayev does, however, continue to maintain that the Board erred in finding that he was unlikely to appear for his admissibility hearing and in concluding that there were no alternatives to his continued detention. Mr. Tursunbayev also asserts that representations made by the Minister’s representative at his most recent detention review hearing were misleading, with the result that the decision arising from that hearing should be set aside.

4. Standard of Review 17 The majority of Mr. Tursunbayev’s submissions relate to the Board’s assessment of the evidence and its factual findings. 18 As the Federal Court of Appeal observed in Canada (Minister of Citizenship & Immigration) v. Thanabalasingham, 2004 FCA 4, [2004] 3 F.C.R. 572 (F.C.A.) at para. 10, detention determinations are essentially fact-based decisions which should be accorded deference. 19 That said, because the individual’s liberty interests are at stake in detention reviews, these decisions must be made with section 7 Charter considerations in mind: Canadian Charter of Rights and Freedoms, s. 7, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11; Thanabalasingham, above at para. 14. 20 The fact that Charter interests are implicated does not change the standard of review, which remains that of reasonableness: see Dor´e c. Qu´ebec (Tribunal des professions), 2012 SCC 12, [2012] S.C.J. No. 12 (S.C.C.) at para. 45. However, the task for the Court on judicial review in Tursunbayev v. Canada (MPS & EP) Anne Mactavish J. 127

such cases is to determine “whether, in assessing the impact of the relevant Charter protection and given the nature of the decision and the statutory and factual contexts, the decision reflects a proportionate balancing of the Charter protections at play”: Dor´e at para. 57. 21 To the extent that Mr. Tursunbayev argues that he was treated unfairly by the Board, the task for the Court is to determine whether the process followed by the decision-maker satisfied the level of fairness required in all of the circumstances: see Khosa v. Canada (Minister of Citizenship & Immigration), 2009 SCC 12, [2009] 1 S.C.R. 339 (S.C.C.) at para. 43. 22 Similarly, it is for the Court to determine whether representations made by the Minister’s representative during the course of Mr. Tursun- bayev’s detention review hearing were misleading or resulted in a breach of natural justice.

5. The Alleged Misrepresentation Regarding the Extradition Request 23 Mr. Tursunbayev asserts that the Minister’s representative misstated material facts at his detention review, which misstatements were relied upon by the Board. Mr. Tursunbayev says that these misstatements amount to a breach of natural justice and an abuse of process, and that the Board’s decision should be set aside on this basis alone. 24 At issue are representations made by the Minister’s representative concerning whether or not the Government of Canada had received a request for the extradition of Mr. Tursunbayev. The Minister’s representative is not a lawyer, but is very experienced in these matters. 25 The Interpol “Red Notice” issued with respect to Mr. Tursunbayev states that “The country at the request of which this present notice has been published has given assurances that extradition will be sought upon the arrest of the person ...”. Counsel for Mr. Tursunbayev raised this issue at his detention review, noting that there was no evidence before the Board that Kazakhstan had sought his extradition, and suggesting that this put the credibility of the Kazakhstani government in doubt. 26 Counsel for Mr. Tursunbayev also observed that if Kazakhstan had indeed sought his client’s extradition, he would be arguing that it would amount to an abuse of process to have Mr. Tursunbayev facing two different procedures at the same time both aimed at his removal from Can- ada and both based upon the same allegations. 128 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

27 In the course of this discussion, the following exchange took place: MINISTER’S COUNSEL: I have to object to this, Madam Member. This is not an extradition proceeding, we don’t know what extradition is going on or not. Unless counsel has evidence that is contrary I think we should be moving on because clearly he’s arguing extradition, this is not an extradition proceeding. COUNSEL: Okay, well — MEMBER: Well — MINISTER’S COUNSEL: And counsel has not presented any evidence that there has been a request or not a request. MEMBER: Well I don’t really see a problem — like Mr. Waldman is simply asking the question of why haven’t they sought extradition. MINISTER’S COUNSEL: Does he know they have or they haven’t? Can he say that with a hundred percent certainty? I can’t. MEMBER: Well I mean at this point I don’t have any evidence that they have. MINISTER’S COUNSEL: Nor do you have evidence that they haven’t. MEMBER: And I’m not necessarily drawing any particular inference at this point, I’m just listening to what Mr. Waldman has to say about it. Transcript of Detention Review (March 2, 2012) at 65-66, Applica- tion Record Vol. 2, [emphasis added] 28 The Minister’s representative subsequently reiterated his observations as to the lack of evidence before the Board regarding the existence of an extradition request. His closing submissions also comment on the lack of evidence one way or the other, stating “We do not know whether extradition has been requested under some other treaty or not. To make those assumptions is premature on counsel [sic] without the evidence”: Tran- script of Detention Review (6 Mar 2012), Application Record Vol. 3 at 49. 29 The Minister’s representative has filed an affidavit in connection with this application in which he acknowledges that, at the time of Mr. Tur- sunbayev’s detention review, he was aware that the Government of Can- Tursunbayev v. Canada (MPS & EP) Anne Mactavish J. 129

ada had in fact received an extradition request from the Government of Kazakhstan. 30 According to the Minister’s representative, this was “third party information” that he had received on a confidential basis from the Depart- ment of Justice’s International Assistance Group. No Authority to Pro- ceed had been issued in relation to this request, and the Minister’s representative was not authorized to disclose the existence of the extradition request at Mr. Tursunbayev’s detention review. 31 The Minister’s representative asserts that the statements he made at Mr. Tursunbayev’s detention review were intended only as commentary on the state of the record and the lack of evidence as to whether or not Kazakhstan had sought the extradition of Mr. Tursunbayev. Nothing said by the Minister’s representative at the detention review was intended to be a representation by him to the Board that the Government of Canada had not received an extradition request from Kazakhstan. 32 Finally, the respondent argues that the existence of an extradition request would have actually weakened Mr. Tursunbayev’s case for release as it would have provided him with a further incentive not to appear at his admissibility hearing. 33 I would start by noting that Mr. Tursunbayev has not persuaded me that the Minister’s representative had a positive obligation to disclose the existence of the extradition request during the March, 2012 detention review. In the absence of an Authority to Proceed, there was no assurance that Mr. Tursunbayev would indeed be facing extradition proceedings in Canada. 34 I have read the transcript of Mr. Tursunbayev’s detention review hearing carefully, and I agree with the respondent that a number of the statements made by the Minister’s representative during the evidentiary portion of the hearing clearly related to the state of the record before the Board and the absence of any evidence one way or the other regarding the existence of an extradition request. 35 I also understand the comment made by the Minister’s representative that “[w]e do not know whether extradition has been requested under some treaty or not” to be a reference to the state of the record before the Board rather than a representation as to the state of the Minister’s representative’s own knowledge or the state of his client’s knowledge with respect to the extradition request. 130 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

36 One statement made by the Minister’s representative is problematic, however. He stated “Does [Mr. Tursunbayev’s counsel] know they have or they haven’t [sought extradition]? Can he say that with a hundred percent certainty? I can’t.” 37 To the extent that this statement may be understood as a representation of the state of the Minister’s representative’s personal knowledge with respect to the existence of an extradition request, the statement was untrue. The Minister’s representative has admitted that at the time that he made this statement, he knew that the Government of Canada had received a request from the Government of Kazakhstan for the extradition of Mr. Tursunbayev. He could state this with 100 percent certainty by the time of Mr. Tursunbayev’s detention review, and the statement cited above was arguably misleading. 38 However, this statement must be read in context. It follows several clear comments by the Minister’s representative about the lack of evidence in the record. Read in context, it is also arguable that the Min- ister’s representative was saying that he could not state with 100 percent certainty that an extradition request had been made based on the evidence before the Tribunal. 39 Indeed, it appears from what follows that this is the way that the Board understood the statement, as the Board member made a number of comments after this exchange about the lack of evidence one way or the other in the record. 40 A finding that a representative of the Crown has intentionally misled a Tribunal is a very serious matter. While the comment identified above is troubling, I have decided to give the Minister’s representative the benefit of the doubt in this case. I would, however, note that this was a close call, and would caution the Minister’s representative to be more careful in the future in his representations to the Board. 41 I would also note that in responding to Mr. Tursunbayev’s allegations of misrepresentation by the Minister’s representative, the Minister’s counsel on this application submitted that the comments made by the Minister’s representative at Mr. Tursunbayev’s detention review were merely submissions, and were not evidence given under oath. 42 I am very concerned about this submission. Individuals representing the Crown before courts and tribunals always have an obligation to be candid and fair in their dealings both with litigants and with the courts and tribunals themselves. The fact that the comments in question were made by the Minister’s representative in submissions rather than in evi- Tursunbayev v. Canada (MPS & EP) Anne Mactavish J. 131

dence does not in any way reduce or limit the representative’s duty of candour.

6. The Finding that Mr. Tursunbayev was Unlikely to Appear for his Admissibility Hearing 43 Section 58 of the Immigration and Refugee Protection Act provides that the Board shall order the release of a detained person unless it is satisfied that, amongst other things, the person is unlikely to appear for his or her admissibility hearing. 44 The factors to be considered by the Board in assessing whether an individual is likely to appear for an admissibility hearing are identified in section 245 of the Immigration and Refugee Protection Regulations, SOR/2002-227 [the Regulations]. These factors include whether the person is a fugitive from justice in a foreign jurisdiction, whether he or she has complied with orders and conditions, whether there is a history of avoidance of examination or any previous attempt to do so, and whether the person has strong ties to a community in Canada. 45 It is also reasonable for the Board to consider the strength of the Gov- ernment’s case in determining whether or not an individual poses a flight risk: Canada (Minister of Citizenship & Immigration) v. B188, 2011 FC 94, 383 F.T.R. 114 (Eng.) (F.C.) at para. 44. 46 Mr. Tursunbayev has identified many errors allegedly made by the Board in this matter. Because he will be subject to one or more detention reviews in the future, he has asked me to address each of his arguments so as to provide guidance to future decision-makers. Accordingly, each of Mr. Tursunbayev’s arguments will be addressed below.

a) Did the Board Improperly Shift the Burden of Proof to Mr. Tursunbayev? 47 The burden of proof was on the Minister to establish on a balance of probabilities that Mr. Tursunbayev was unlikely to appear for his admissibility hearing: Thanabalasingham, above at para. 15. 48 The CBSA offered to withdraw the allegations against Mr. Tursun- bayev if he explained the source of his wealth. To date, Mr. Tursunbayev has declined to do so. 49 Mr. Tursunbayev argues that the Board erred in law by using the fact that he has chosen to remain silent as evidence of his guilt. I do not agree that this is what the Board did. 132 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

50 The Board recognized that Mr. Tursunbayev was under no obligation to provide Canadian authorities with information regarding the source of his money. It noted, however, that Mr. Tursunbayev already had a strong incentive to provide exculpatory information, given that he was being held in detention. Having failed to do so when his liberty was at stake, the Board found it not to be credible that Mr. Tursunbayev would be motivated to appear at his admissibility hearing in order to exonerate himself. 51 The Board’s comments have to be read in context. Contrary to Mr. Tursunbayev’s submissions, the Board did not shift the burden of proof onto him or draw an adverse inference regarding his guilt based upon his assertion of his right to silence. What the Board was addressing was whether Mr. Tursunbayev would be motivated to appear at his admissibility hearing, or whether he was a flight risk. In this context, the inference drawn by the Board was one that was reasonably open to it on the record before it.

b) Did the Board Apply the Wrong Standard in Assessing the Strength of the Case against Mr. Tursunbayev? 52 The Board noted that it was Mr. Tursunbayev’s position that the charges against him in Kazakhstan were baseless. In assessing the strength of the Minister’s case, the Board stated that “[i]f there was absolutely no basis to the Minister’s allegations, this would weigh in favour of release, but that is not the case here”: Reasons at para. 47 [emphasis added]. 53 I agree with Mr. Tursunbayev that the Board erred in requiring him to demonstrate that there was “absolutely no basis” to the Minister’s allegations before the relative strength of the Minister’s case could weigh in favour of his release from detention. 54 As noted above, the jurisprudence of this Court has established that the strength of the Minister’s case may be a relevant factor in assessing whether an individual poses a flight risk. This is because the relative strength or weakness of the case against an individual may go to the motivation of the individual to appear at his or her admissibility hearing. 55 Clearly, where a detainee can demonstrate that there is absolutely no basis to the allegations against him, that factor may argue in favour of release. That does not mean, however, that no consideration can or should be given to this factor if a detainee can merely show that the Min- ister’s case is very weak. The relative strength or weakness of the Min- Tursunbayev v. Canada (MPS & EP) Anne Mactavish J. 133

ister’s allegations must be evaluated in each case and must then be considered in light of all of the other relevant factors present in a particular case in order to determine whether the statutory and regulatory conditions justifying continued detention have been met.

c) Was Mr. Tursunbayev a Fugitive From Justice? 56 I am not persuaded that the Board erred in concluding that Mr. Tur- sunbayev was a fugitive from justice. 57 The term “fugitive from justice” is not defined in the Immigration and Refugee Protection Act, S.C. 2001, c. 27 or Regulations. The term must, therefore, be given its ordinary meaning. 58 I do not agree with Mr. Tursunbayev that a person can only be considered a “fugitive from justice” if he fled his home jurisdiction after legal proceedings had been formally instituted. The term is broad enough to include individuals who are sought by law enforcement officials in their country of origin, who were aware of an ongoing investigation that could implicate them in criminal conduct at the time that they left the country, and who have no intention of voluntarily returning to face the charges. 59 In this case, Mr. Tursunbayev fled Kazakhstan two days after Mukhtar Dzhakishev, the President of Kazatomprom, was arrested. 60 Mr. Tursunbayev’s position is that he left the country because he was afraid that he would be arrested and tortured by state authorities in order to obtain evidence against Mr. Dzhakishev. He further submits that as he had not been charged with any offences at the time that he fled Kazakh- stan, he could not be a fugitive from justice. 61 The Board rejected this explanation. It found that Mr. Tursunbayev had fled Kazakhstan knowing that the authorities were investigating offences involving Kazatomprom, and that he had left the country in order to avoid being questioned about his own role in the matter. The Board did not accept that a “savvy businessman” such as Mr. Tursunbayev would not have known that the Kazakhstani authorities were likely also interested in prosecuting him for his actions as the Vice-President of Kazatomprom. This was a finding that was reasonably open to the Board on the record before it.

d) The Use of General Evidence of Corruption 62 I also do not agree with Mr. Tursunbayev that the Board erred by using country condition information describing the pervasiveness of cor- 134 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

ruption within Kazakhstan as a basis for a finding that Mr. Tursunbayev must himself have been involved in corrupt activity. 63 I agree that it would be an error for the Board to find that simply because corruption is endemic in a country, a particular individual must himself have been involved in corrupt activities. However, that is not what happened here. 64 Once again, the Board’s comments have to be read in context. The Board noted that Mr. Tursunbayev had been a Vice-President of Kazatomprom, and was also the director of foundations that either reported to or were linked to Kazatomprom. While he had described himself as a successful businessman and civil servant, the Board noted that there was nothing in the record that could account for Mr. Tursunbayev’s considerable wealth, apart from his past employment. 65 It was thus in the context of Mr. Tursunbayev’s vast and unexplained wealth that the Board observed that it was “reasonable to conclude that he had benefited greatly from his participation in the Kazakhstani system” and that it was not credible that “a person [could have] benefit[ed] so much from such a corrupt system without having facilitated and con- tributed to it”: Reasons at para. 41. There is nothing unreasonable about this finding.

e) The Board’s Treatment of the Evidence Regarding the Prosecution of Mukhtar Dzhakishev 66 Mr. Tursunbayev argued before the Board that no weight should be given to the fact that Mukhtar Dzhakishev was convicted of offences related to Kazatomprom. He submitted that this was a poor indicator of the strength of the Minister’s case because Kazakhstani courts routinely rely on evidence obtained through the use of torture. 67 The Board found that although the country condition information showed that Kazakhstani courts likely do rely on evidence obtained through torture, there was “no evidence that this occurred in Mr. Dzhak- ishev’s case”. 68 In coming to this conclusion, the Board relied on an excerpt from the 2009 United States’ Department of State Report which specifically referred to Mr. Dzhakishev’s case and discussed the limitations on his ability to access legal representation. As the Board observed, nothing in the document referred to evidence against Mr. Dzhakishev having been obtained through the use of torture, although the report does note the rou- tine use of torture by state officials in Kazakhstan. Tursunbayev v. Canada (MPS & EP) Anne Mactavish J. 135

69 What the Board did not mention, however, was the information contained in the March, 2010 Amnesty International report entitled “Ka- zakhstan: No Effective Safeguards against Torture”, which discusses the Dzhakishev case at some length. 70 This report states that police in Kazakhstan routinely arrest individuals who are then held incommunicado for varying periods of time during which confessions are obtained from the individuals through the use of torture. 71 According to the Amnesty report, in the days leading up to Mr. Dzhakishev’s arrest, seven of his co-directors and staff were detained by officers of the National Security Service. These individuals were told that they were being taken into a ‘witness protection program’ and were being taken to a safe house. However, they were instead handcuffed and blindfolded and were flown in a special plane to a different location. Their families were not told of their whereabouts and lawyers hired by the families were not given access to the detainees, who were instead represented by lawyers assigned to them by the State. 72 The detainees’ wives were finally allowed to see their husbands after they had spent two weeks in custody. These meetings were not private, and it was impossible to determine whether the men had been mistreated. Some of the wives expressed fears that their husbands had been “if not physically ill-treated, then at the very least intimidated into refraining from making any complaints”. The Amnesty report notes that the men were still being held in an unofficial detention facility when the report was published some ten months later. 73 It is true that the Board will be presumed to have considered all of the evidence before it: see, for example, Hassan v. Canada (Minister of Employment & Immigration) (1992), 36 A.C.W.S. (3d) 635, 147 N.R. 317 (Fed. C.A.). That said, the more important the evidence that is not specifically mentioned and analyzed in the Board’s reasons, the more willing a court may be to infer that the Board made an erroneous finding of fact without regard to the evidence: see Cepeda-Gutierrez v. Canada (Minister of Citizenship & Immigration) (1998), 157 F.T.R. 35, 83 A.C.W.S. (3d) 264 (Fed. T.D.) at paras.14-17. 74 The evidence contained in the Amnesty Report was directly relevant to a central finding made by the Board relating to the legitimacy of the charges against Mr. Tursunbayev. Moreover, it appears to run counter to the Board’s finding that there was “no evidence” that Mr. Dzhakishev’s conviction was based on evidence obtained through the use of torture. 136 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

The failure of the Board to mention, let alone analyze this evidence thus constitutes a material error and renders the Board’s decision unreasonable.

f) The Reliability of the Interpol “Red Notice” 75 Mr. Tursunbayev also submits that the Board erred in finding that there was no evidence that the Interpol “Red Notice” in this case was unreliable. I do not agree. 76 It is apparent from paragraph 46 of the Board’s reasons that it understood the evidence adduced by Mr. Tursunbayev addressing the abuse of the “Red Notice” system by corrupt States. The Board also clearly understood that Interpol does not “vet” allegations or authenticate evidence relied on by a State in support of allegations made against its citizens. Nevertheless, the Board found that the evidence before it was insufficient to establish that such abuse occurred in this case. Mr. Tursunbayev has not persuaded me that this finding was unreasonable.

g) The Failure of the Board to Confront Mr. Tursunbayev with an Alleged Inconsistency 77 The Board had concerns about Mr. Tursunbayev’s credibility based, in part, on an alleged inconsistency in information provided by him to Canadian immigration officials. Mr. Tursunbayev argues that there was no obvious inconsistency in the information that he provided and that, in any event, it was unfair of the Board not to put its concerns to him and allow him an opportunity to address them. I agree with Mr. Tursunbayev on both points. 78 The information in issue relates to Mr. Tursunbayev’s position as Vice-President of Kazatomprom. In his application for permanent residence, Mr. Tursunbayev stated that he stopped being Vice-President in November of 2004. However, notes prepared by a visa officer in connection with Mr. Tursunbayev’s 2008 application for a temporary resident visa contain the words “Vice-President, Kazatomprom”. 79 The Board concluded from the presence of these words in Mr. Tur- sunbayev’s immigration file that “it is therefore likely that he identified himself as such in his application”: Reasons at para. 53. After observing that Mr. Tursunbayev had elsewhere claimed to have left his position in November of 2004, the Board stated that “[a] person’s employment is a basic fact and in the absence of any explanation for this inconsistency, I Tursunbayev v. Canada (MPS & EP) Anne Mactavish J. 137

find that this raises concerns regarding Mr. Tursunbayev’s credibility”: Reasons at para. 53. 80 It is not at all clear, however, that there was in fact any inconsistency in the information provided by Mr. Tursunbayev in connection with his various applications. In reference to Mr. Tursunbayev’s current position, the visa officer’s notes relating to his 2008 visa application clearly state that he “is a director of the corporate foundation “Demur” since May 2006...”. This is consistent with the information that Mr. Tursunbayev provided in his application for permanent residence. 81 Further on in the visa officer’s notes is the statement that “He is well established in Kazakhstan”. What then follows is information relating to Mr. Tursunbayev’s personal history. This information includes his address, date of birth, marital status, the name of his wife, and so on. It is in the middle of this information that the words “Vice-President, Kazatom- prom” appear. 82 There is no timeframe attached to this statement, nor is there anything in the officer’s notes to suggest that Mr. Tursunbayev had claimed to still be the “Vice-President, Kazatomprom” as of 2008. Indeed, the notes identify Mr. Tursunbayev’s current position as being that of a director of Demur. Given that the words appear in the context of information regarding Mr. Tursunbayev’s personal history, it seems more likely that the reference to “Vice-President, Kazatomprom” was intended to refer to Mr. Tursunbayev’s past employment. 83 It was also unfair of the officer to make such a negative credibility finding without giving Mr. Tursunbayev an opportunity to address the alleged inconsistency. 84 The Board is not obligated to draw an obvious inconsistency in a party’s evidence to the party’s attention and to afford him or her an opportunity to explain the discrepancy. However, in this case, the record before the Board was several hundred pages in length. The three words in issue were buried deep in the record, and were not the subject of any discussion at Mr. Tursunbayev’s detention review. Moreover, as explained above, the alleged inconsistency was not obvious on the face of the record. In such circumstances, the duty of fairness required that the Board put its concern to Mr. Tursunbayev and that he be provided with an opportunity to explain his position in this regard. 85 Consequently, I am satisfied that it was both unreasonable and unfair for the Board to base a negative credibility finding on this alleged inconsistency. 138 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

h) The Alleged Misrepresentation as to Mr. Tursunbayev’s Net Worth 86 While the Board did not attach a great deal of weight to this finding, it was nevertheless unreasonable for it to conclude that Mr. Tursunbayev had misrepresented his net worth to Canadian immigration authorities during the processing of his application for permanent residence. 87 At the time that Mr. Tursunbayev and his family were seeking permanent residence in Canada he was asked for proof that he had settlement funds of at least $20,654. Mr. Tursunbayev provided a bank statement showing that he had a balance of approximately $50,000 in a Canadian bank account. 88 While stating that it was “not clear” whether Mr. Tursunbayev was under any legal obligation to disclose the full extent of his wealth, the Board concluded that “the fact remains that the financial picture he presented was vastly different from the truth”: Reasons at para. 52. After noting that the disclosure of his wealth would likely have raised questions, the Board goes on to observe that “[i]t therefore seems likely that Mr. Tursunbayev preferred to avoid attracting any particular attention”. This was, in my view, an unreasonable inference. 89 A review of the documentation associated with Mr. Tursunbayev’s application for permanent residence shows quite clearly that all Mr. Tur- sunbayev was asked to do was to provide confirmation that he was in possession of the necessary level of settlement funds. This he did. There was no evidence before the Board that Mr. Tursunbayev was ever asked about his net worth during the application process, nor did he represent in any way that the money in his bank account constituted the full extent of his assets. The Board’s negative finding in this regard was simply unreasonable.

i) Other Indicators of Flight Risk 90 Mr. Tursunbayev has not persuaded me that it was unreasonable for the Board to rely on Mr. Tursunbayev’s past flight from Kazakhstan, the mobility afforded to him by his considerable wealth, and the resourceful- ness that he has shown through his acquisition of citizenship in the country of St. Kitts and Nevis as indicators of his potential flight risk.

7. Alternatives to Detention 91 I am satisfied, however, that the Board erred in assessing whether there were alternatives to Mr. Tursunbayev’s continued detention. Tursunbayev v. Canada (MPS & EP) Anne Mactavish J. 139

92 Where the Board has been determined that there are grounds for the detention of an individual, section 248(e) of the Regulations requires the Board to consider whether alternatives to detention are available. 93 In this case, Mr. Tursunbayev provided the Board with a comprehen- sive proposal whereby any risk of flight could allegedly be managed. Mr. Tursunbayev proposed to offer several sureties and to be subject to strict conditions of release. As part of these conditions, Mr. Tursunbayev would wear an ankle bracelet connected to a GPS monitoring system. He would also engage a private security company to provide physical surveillance of him on a round-the-clock basis, and to install surveillance cameras at his home in order to monitor his movements. 94 The evaluation of the suitability of sureties is a matter squarely within the jurisdiction and expertise of the Board. Mr. Tursunbayev has not persuaded me that the Board erred in its assessment of the suitability of three of the sureties offered by Mr. Tursunbayev or the sufficiency of the amounts of the bonds offered by two of these individuals. 95 I do, however, agree with Mr. Tursunbayev that the Board does not appear to have understood the nature of the undertaking being offered by the head of the private security company as a means of ensuring that his company complied with its obligations to monitor Mr. Tursunbayev’s whereabouts. 96 I am also satisfied that the Board erred in failing to properly consider the appropriateness of the overall proposal offered by Mr. Tursunbayev as an alternative to his continued detention. 97 While the Board discussed the limitations associated with ankle bracelets at some length, there is no consideration given in the Board’s reasons of efficacy of video-cameras to monitor Mr. Tursunbayev’s whereabouts. 98 Perhaps even more importantly, there is no discussion in the Board’s reasons as to whether the physical surveillance of Mr. Tursunbayev on a round-the-clock basis would be sufficient to manage any risk of flight. 99 Mr. Tursunbayev provided the Board with a multi-faceted proposal for his continued monitoring following his release from detention. Each element of the proposed release plan had to be weighed by the Board on its own, and in combination with the other proposed methods of ensuring compliance, in order for it to determine whether there were alternatives to Mr. Tursunbayev’s continued detention. The failure of the Board to properly consider some of the elements of the plan proposed by Mr. Tur- 140 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

sunbayev means that its assessment of the overall adequacy of the proposed release plan was unreasonable.

8. Conclusion 100 Mr. Tursunbayev has not persuaded me that the Minister’s representative misled the Board with respect to the existence of an extradition request, or that some of the disputed findings made by the Board were unreasonable. I have, however, concluded that a number of the Board’s findings were made in error, and that Mr. Tursunbayev was treated unfairly in relation to one finding. 101 These errors were sufficiently serious as to require that the application for judicial review be granted. The Board’s decision is set aside, and the matter is remitted to a differently constituted panel for a new detention review. This review is to take place within seven days of the date of this decision. 102 Neither side has proposed a question for certification, and I am satisfied that this decision turns primarily on the unique facts of this case. Consequently, no question will be certified.

9. Costs 103 Mr. Tursunbayev submits that he should be entitled to his solicitor and client costs in connection with the application his judicial review based upon the misrepresentation allegedly made by the Minister’s representative in relation to the existence of the extradition request. 104 Costs are not ordinarily awarded in immigration proceedings in this Court. Rule 22 of the Federal Courts Immigration and Refugee Protec- tion Rules, SOR/93-22 provides that “No costs shall be awarded to or payable by any party in respect of an application for leave, an application for judicial review or an appeal under these Rules unless the Court, for special reasons, so orders”. 105 Given that I have not been persuaded that the Minister’s representative misled the Board in relation to the existence of the extradition request, this is not a case for costs.

Judgment THIS COURT ORDERS AND ADJUDGES that: Tursunbayev v. Canada (MPS & EP) Anne Mactavish J. 141

1. Leave is granted to Mr. Tursunbayev to judicially review the Board’s March 21, 2012 decision refusing to release him from detention; 2. This application for judicial review is allowed, and the matter is remitted to a differently constituted panel for a new review of Mr. Tursunbayev’s detention. This review shall take place within seven days of the date of this decision. Application granted. 142 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

[Indexed as: Yoon c. Canada (Ministre de la Citoyennet´e & de l’Immigration)] Sechan Yoon, Jiseok Yoon, Jiwon Yoon, Jin Kyung Kim, Applicants and Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-4837-11 2012 FC 193 Michel M.J. Shore J. Heard: February 9, 2012 Judgment: February 9, 2012 Immigration and citizenship –––– Refugee protection — Practice and procedure in refugee claims — Refugee hearings — Interpreters –––– Applicants were citizens of South Korea — Applicants claimed they feared retaliation from religious sect that they left — Applicants sought refugee status in Canada — Applicants did not speak French — Interpreter was appointed for hearing — Refugee Protection Division of Immigration and Refugee Board found many discrepancies in testimony and found that internal flight alternates existed within South Korea — Board found that applicants were not Convention refugees or persons in need of protection — Applicants applied for judicial review of decision — Application granted — Standard of review under circumstances was correctness — Significant interpretation errors occurred during applicants’ testimony — Principal applicant’s incorrectly interpreted statement was repeated in Board’s decision and undermined credibility — Transcript of hearing showed that applicants did not understand certain question — Applicants only became aware of extent of interpretation problem after hearing — Translation problems dealt with key elements of claim and had negative influence on Board’s assessment of applicants’ subjective fear — Matter was remitted to different panel for reconsideration. Immigration and citizenship –––– Constitutional issues — Charter of Rights and Freedoms — General principles –––– Applicants were citizens of South Korea — Applicants claimed they feared retaliation from religious sect that they left in South Korea — Applicants sought refugee status in Canada — Applicants did not speak French — Interpreter was appointed for hearing — Refugee Pro- tection Division of Immigration and Refugee Board (Board) found many discrepancies in testimony and found that internal flight alternates existed within South Korea — Board found that applicants were not Convention refugees or persons in need of protection — Applicants argued breach of s. 14 of Canadian Yoon c. Canada (MCI) 143

Charter of Rights and Freedoms — Applicants applied for judicial review of decision — Application granted — Significant interpretation errors occurred during applicants’ testimony — Principal applicant’s incorrectly interpreted statement was repeated in Board’s decision and undermined credibility — Transcript of hearing showed that applicants did not understand certain question — Appli- cants only became aware of extent of interpretation problem after hearing — Translation under s. 14 of Charter need not be perfect, but translation problems dealt with key elements of claim and had negative influence on Board’s assessment of applicants’ subjective fear — Matter was remitted to different panel for reconsideration. Cases considered by Michel M.J. Shore J.: Huang v. Canada (Minister of Citizenship & Immigration) (2003), 2003 Car- swellNat 841, 2003 FCT 326, 2003 CFPI 326, 2003 CarswellNat 1751, 2 Admin. L.R. (4th) 284, 27 Imm. L.R. (3d) 314, 231 F.T.R. 61, [2003] F.C.J. No. 456 (Fed. T.D.) — considered New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1, 69 Admin. L.R. (4th) 1, 69 Imm. L.R. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) [2008] 1 S.C.R. 190, 844 A.P.R. 1, (sub nom. Dunsmuir v. New Brunswick) 2008 C.L.L.C. 220-020, D.T.E. 2008T-223, 329 N.B.R. (2d) 1, (sub nom. Dunsmuir v. New Brunswick) 170 L.A.C. (4th) 1, (sub nom. Dunsmuir v. New Brunswick) 291 D.L.R. (4th) 577, 2008 CarswellNB 124, 2008 CarswellNB 125, 2008 SCC 9, 64 C.C.E.L. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) 95 L.C.R. 65, [2008] S.C.J. No. 9, [2008] A.C.S. No. 9 (S.C.C.) — considered Umubyeyi v. Canada (Minister of Citizenship & Immigration) (2011), 2011 FC 69, 2011 CarswellNat 131, 228 C.R.R. (2d) 1, 382 F.T.R. 252 (Eng.), 2011 CF 69, 2011 CarswellNat 706, [2011] F.C.J. No. 76 (F.C.) — considered Statutes considered: Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 s. 14 — considered Immigration and Refugee Protection Act, S.C. 2001, c. 27 Generally — referred to s. 72(1) — considered s. 96 — considered s. 96 “r´efugi´e” — considered s. 97 — considered

APPLICATION for judicial review of Immigration and Refugee Board’s decision that applicants were not Convention refugees or persons in need of protection. 144 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

Angelica Pantiru, for the Applicants Emily´ Tremblay, for the Respondent

Michel M.J. Shore J.:

[UNREVISED CERTIFIED ENGLISH TRANSLATION]

I Introduction 1 The RPD occupies a privileged position as a tribunal of fact. It has the opportunity to hear claimants and to listen to them in order to pinpoint the crux of the claim, the basis of the story they relate to the panel. 2 An interpreter does exceptional work in that he or she must translate every nuance of the claimants’ statements to the panel. In addition, claimants have the right to be heard under section 14 of the Canadian Charter of Rights and Freedoms, Part I of The Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter]. However, it may happen that an inadequate interpretation results in the panel losing the advantage it derives from the hearing, that is, listening to the claimants in order to properly assess their fear. 3 The testimony of refugee claimants already requires that the administrative tribunal be receptive to the various nuances in their statements that directly result from their experiences and are based on their own perceptions. Thus, the interpreter plays a crucial role in assisting the panel in its task of actively listening to claimants. As explained in the Immigration and Refugee Board’s Interpreter Handbook at page 35: During a hearing before the RPD, refugee claimants are requested to tell the panel what has led them to claim refugee status. In having to provide details about their circumstances, claimants often have to recall very sensitive and emotional moments of their life, about which they may find it difficult to speak. In those instances, your ability to demonstrate professionalism will inspire greater confidence and help facilitate a free-flowing exchange between the panel and the claimant. [Emphasis added] 4 Ensuring that the entire case or the full picture of a narrative is understood requires a clear, accurate, comprehensible translation. Without this, the panel may not be able to adequately assess the credibility of a narrative. Moreover, reasoning that shows a lack of credibility would be Yoon c. Canada (MCI) Michel M.J. Shore J. 145

called into question by a translation that does not correctly reflect a claimant’s testimony.

II Legal proceeding 5 This is an application under subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA], for judicial review of a decision by the Refugee Protection Division [RPD] of the Immigration and Refugee Board [IRB] dated June 13, 2011, which determined that the applicants are neither Convention refugees as defined in section 96 of the IRPA nor persons in need of protection under section 97 of the IRPA.

III Facts 6 The principal applicant, Sechan Yoon, his wife Jin Kyung Kim, and their children Jiseok Yoon, who is 15, and Jiwon Yoon, 17, are citizens of South Korea. 7 Sechan Yoon, his wife and their children claim that they fear the senior leaders of the JMS church, a religious sect [sect] founded by Jung Myung Seok in 1980. Because they left the sect, they were referred to as “traitors.” 8 Jying Kyung Kim joined the sect when she was still a student. She says that she was sexually assaulted by the religious leaders of the sect while completing her post-secondary studies. She is afraid that the same thing will happen to her daughter should they return to South Korea. 9 Sechan Yoon joined the sect in 1993 and worked for it in 1999 as a parking lot operator and as manager of gambling activities from October 2005 to October 2007. He was convicted three times for his actions on behalf of the sect. He was convicted twice of fraud and insolvency because of significant debts he incurred for the benefit of the sect and was imprisoned, then convicted a third time when he was arrested with other members of the sect for gambling. His last prison stay was October 15, 2007, to June 30, 2008. 10 Sechan Yoon and his wife argued about the place of the church in their life. Jying Kyung Kim left the family in November 2007 to live on her own. She continued to work for the sect. The couple’s two children went to live with her husband’s parents. Their mother telephoned them once a month. 11 Sechan Yoon gradually pulled away from the sect in 2005. He says that it was difficult for him to find employment because of his criminal record. In 2008, he worked for a flower grower and claims that members 146 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

of the sect showed up at his workplace. After that event, the owner asked him to leave. 12 Sechan Yoon and his children arrived in Canada on July 30, 2009. On August 5, 2009, they claimed refugee protection. 13 Having reconciled with her husband, Jying Kyung Kim arrived in Canada on December 18, 2009, and claimed refugee protection on De- cember 22, 2009.

IV Decision that is the subject of this application for judicial review 14 The RPD determined that the applicants were not credible for the following reasons: (a) The principal applicant testified at the hearing that representatives of the sect had come to his workplace to threaten him, which is why he lost his employment. However, he did not mention this in his Personal Information Form [PIF]. (b) The applicant’s testimony contradicted information in his PIF as to the number of months he had worked for the flower grower. (c) The documentary evidence reveals that the senior leaders of the sect were convicted of sexual assault, which shows that South Ko- rea is capable of protecting its citizens. The applicants could therefore file a complaint. (d) There is no evidence that the applicants’ daughter, now aged 17, was a follower of the sect or that she had been targeted by members of the sect because the young woman always lived at the same place and walked to school. (e) The applicants did not submit any evidence showing that the members of the sect were pursuing them. In fact, they had not been threatened since 2008 even though the principal applicant’s father had difficulty obtaining proof of membership for the applicants from the sect. He had to say that the applicants were in China and would be returning soon. (f) The threat that the principal applicant claims to have received in 2009 about the risk of his children being kidnapped did not coin- cide with his initial statements. Moreover, this risk did not amount to persecution because the applicant testified that it was the practice of the sect to make children work during the summer selling flowers and cashews without pay. Yoon c. Canada (MCI) Michel M.J. Shore J. 147

(g) The RPD was unable to identify the applicants’ actual place of residence because Ms. Kim did not ask for a new household register card when she moved. (i) The principal applicant had always lived at the same place and never attempted to flee from the sect. 15 The RPD applied the guidelines during Ms. Kim’s testimony about her alleged sexual assaults. Her husband was not present when she testified. These incidents were not mentioned in her PIF because she did not want her husband to know about them. 16 The RPD also found that an internal flight alternative [IFA] was available in the cities of Changwon or Pusan. The RPD rejected the applicant’s submission that their household register card would enable members of the sect to find them. The RPD was also of the view that there was no evidence that the sect would be interested in seeking them out should they return. The RPD found that it would not be unreasonable for the applicants to relocate to the suggested IFA’s despite the applicant’s criminal record and despite the fact that Ms. Kim was being trained as a chef in Canada.

V Issue 17 The primary issue is as follows: Did the interpretation errors during the hearing breach section 14 of the Charter and the principles of procedural fairness during the hearing?

VI Relevant statutory provisions 18 The following provisions of the IRPA apply to this case: Convention refugee 96. A Convention refugee is a person who, by reason of a well- founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion, (a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or (b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country 148 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

Person in need of protection 97. (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally (a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or (b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if (i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country, (ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country, (iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and (iv) the risk is not caused by the inability of that country to provide adequate health or medical care. Person in need of protection (2) A person in Canada who is a member of a class of persons prescribed by the regulations as being in need of protection is also a person in need of protection. Définition de « réfugié » 96. A qualité de réfugié au sens de la Convention — le réfugié—la personne qui, craignant avec raison d’être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance a` un groupe social ou de ses opinions politiques: a) soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de chacun de ces pays; b) soit, si elle n’a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner. Personne a` protéger 97. (1) A qualité de personne a` protéger la personne qui se trouve au Canada et serait personnellement, par son renvoi vers tout pays dont Yoon c. Canada (MCI) Michel M.J. Shore J. 149

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

VII Position of the parties 19 The applicants maintain that the translation problems with the interpreter designated by the RPD are responsible for the RPD’s findings on the lack of credibility. Since the applicants do not speak French, an interpreter was present at the hearing to translate from French to Korean and from Korean to French. At the hearing, another interpreter was present, Ki-Chan Yune, who had translated the family’s documents on its arrival in Canada. 20 The applicants submit that Mr. Yune noted a number of irregularities in the translation, that the applicants had difficulty understanding the questions and that the interpreter had problems following the proceeding. The applicants informed the RPD during the hearing of possible translation problems, but the RPD refused to change interpreters because the applicants had admitted that they understood the interpreter’s Korean. 150 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

The applicants state, however, that they were unable to evaluate the interpretation at the time. 21 The applicants argue that the interpreter’s corrections and the numerous questions clarifying the applicants’ testimony prevented the applicants from setting out the basis of the claim in fairness. 22 The applicants say that they had the right to a precise, impartial and contemporaneous interpretation of their testimony by a competent person in accordance with section 14 of the Charter. Therefore, the RPD erred by refusing to adjourn the hearing or to change interpreters despite the obvious translation problems. 23 The applicants introduced into evidence an affidavit of Mr. Yune, who reviewed the transcript of the hearing and identified the primary interpretation problems that affected the heart of the applicants’ narrative. 24 Furthermore, the applicants maintain that the IFA suggested by the RPD is unreasonable because the RPD did not refer to the documentary evidence. The applicants also argue that the translation problem tainted the RPD’s reasoning on the possibility of finding the applicants through the household registry card. 25 The respondent maintains that the applicants did not object to the interpreter’s work when they had the opportunity to do so. On two occasions, they confirmed that they understood the interpreter. 26 In addition, the applicants take the position that the Court should as- sign no probative value to the affidavit of the interpreter, Mr. Yune, because he is a friend of the applicants and is therefore not impartial. More- over, he only criticized the choice of certain words. In this regard, the respondent submits that section 14 of the Charter does not require a perfect translation. 27 Second, the applicants’ lack of credibility is not solely attributable to the translation since the RPD also noted inconsistencies and implausibilities in the applicants’ testimony. 28 Third, the respondent states that the IFA suggested by the RPD is reasonable because the applicants did not adduce evidence that it would be possible for the sect to find them in the cities of refuge contemplated by the RPD, as shown by its reasons for decision. Yoon c. Canada (MCI) Michel M.J. Shore J. 151

VIII Analysis Did the interpretation errors during the hearing breach section 14 of the Charter and the principles of procedural fairness during the hearing? 29 The standard of review for this question is correctness (New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9, [2008] 1 S.C.R. 190 (S.C.C.)). 30 The interpretation of the applicants’ testimony during the hearing is at issue here. The Court made the following comments about the ramifica- tions of interpretation problems in Huang v. Canada (Minister of Citizenship & Immigration), 2003 F.C.T. 326 (Fed. T.D.): [16] Therefore, there is evidence that the interpreter made errors in translation. Unlike in Basyony v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 427at paragraph 8 (T.D.) (QL), this is not a matter of “differences in nuance between what is said in one language and its translation into another”. These errors are not trivial or immaterial; they go to the very essence of the rejection of the claim. In this case, the Board relied, at least in part, on the errors of translation to support its conclusion that the Applicant was not credible. The main reason why the Board rejected the Applicant’s claim was this negative credibility finding. It is my view that the Ap- plicant was denied his right under section 14 of the Charter to continuous, precise, competent, impartial and contemporaneous interpretation. Since the Applicant’s credibility was the determinative issue in this case, this is sufficient to allow this application for judicial review. 31 In this case, the Court is relying on Mr. Yune’s affidavit, the only evidence in the record that takes into consideration the interpretation problems caused by the translation at the hearing. In fact, he translated the documents in the tribunal record [TR] for the applicants. Although Mr. Yune could not act as an accredited interpreter before the RPD, it was not established that his affidavit was not probative or that Mr. Yune was biased. 32 The Court notes from the partial transcript of the hearing that significant interpretation errors occurred during the applicants’ testimony. By way of example, the applicant stated that he had been employed by the flower grower for only a few months, but the interpreter’s answer did not reflect that (Applicant’s Record [AR] at page 165). The applicant’s incorrectly interpreted statement was repeated in the RPD’s decision at paragraph 10 of its decision and undermined the applicant’s credibility. 152 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

33 The exchanges between the RPD and the applicant on the issue of the household registry as a means of finding the applicants are also worri- some. In fact, the transcript shows that the applicant did not understand the panel’s question and that the interpreter changed the date in his translation from French to Korean (AR at page 170). Furthermore, Ms. Kim clearly stated that living somewhere other than the registered address did not pose a legal problem, which the interpreter translated as not being mandatory (AR at page 171). 34 The RPD determined that the applicants were not credible with respect to the requirement to register the residence because Ms. Kim’s name was on the household register card despite the fact that she no longer lived with the applicants (RPD decision at paragraph 19). 35 A review of the transcript shows unequivocally that the RPD did not grasp certain nuances of the applicant’s testimony because of the interpretation errors in the translation. The Court has set out here just some examples of the many obvious discrepancies between what the applicants said and what was translated for the RPD during the translation. This tainted the RPD’s reasoning with respect to both the assessment of subjective fear and the determination of the IFA. 36 Furthermore, the following exchange is problematic and shows that the translation caused problems during the hearing: [TRANSLATION] BY THE PRESIDING MEMBER (to the witness) • O.K. That’s not the question. My question is: how long have you been afraid of those 200 people? As of what date? BY THE WITNESS (to the presiding member) • Because — I was sent to prison — BY COUNSEL (to the presiding member) • I have to intervene because it seems that there is no — BY THE PRESIDING MEMBER (to the interpreter) • I don’t know whether it’s an interpretation problem or an eva- sion problem, but this isn’t working. What question did you ask the claimant? BY THE INTERPRETER (to the presiding member) • No. I asked what you said. How long? What date — Yoon c. Canada (MCI) Michel M.J. Shore J. 153

(TR at pages 329-330) 37 The hearing was adjourned for a few minutes, counsel for the applicants spoke with the interpreter who was observing, Mr. Yune, and then advised the RPD of the possible translation problems: [TRANSLATION] BY COUNSEL (to the presiding member) • I don’t know whether that’s what caused the misunderstand- ing. Mr. Yune says that the complete question was not translated. Only how long have you been afraid was translated but not as of what date and tell us the date, the month, the year. I don’t know if they feel at ease. We can continue like this but if — BY THE PRESIDING MEMBER (to counsel) • Yes, but this man has been an official interpreter here for a number of years so I trust him. BY COUNSEL (to the presiding member) • Perfect. BY THE PRESIDING MEMBER (to the witness) • We’ll continue. I’m asking this question for the fourth time. The question is — INTERPRETER (to the presiding member) • I explained to them because it’s a bit difficult for me because I don’t know their story. BY THE PRESIDING MEMBER (to the witness) • But that’s normal. That’s normal. Usually the interpreters do not know the claimants. O.K. So, I’m going to ask the question for the last time. The question is: how long, as of what date, have you been afraid of these 200,000 believers? (TR at pages 331-332) 38 However, it was only after the hearing that the applicants became aware of the extent of the interpretation problems. Justice Simon No¨el’s reasoning in Umubyeyi v. Canada (Minister of Citizenship & Immigra- tion), 2011 FC 69 (F.C.) , applies to this case: [10] In this case, the affidavit evidence is sufficient to establish a concern of the adequacy of the translation at the Board hearing. Un- derstandably, there is a high evidentiary threshold to establish that the Applicant waived her right to a fair interpretation, and there is nothing to indicate that she did indeed waive her right (Thambiah v 154 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

Canada (Minister of Citizenship and Immigration), 2004 FC 15; Sherpa, above). In any event, even if mistranslation could be reasonably apparent during the hearing itself, as it was in Elmaskut v Can- ada (Minister of Citizenship and Immigration), 2005 FC 414, the matter can be sent for redetermination before the Board. [Emphasis added] 39 The Court cannot find that the applicants waived their Charter right. The Court concedes that under section 14 of the Charter the translation need not be perfect; however, the translation problems dealt with the key elements of the claim and had a negative influence on the RPD’s assessment of the applicants’ subjective fear. 40 This is especially important since the RPD based its decision on the applicants’ lack of credibility and the implausibilities in their story, notably by finding a lack of subjective fear and an IFA. 41 After a new hearing, the RPD’s reasoning could lead to the same finding of lack of credibility, but, nevertheless, this new hearing is essen- tial to ensure that the translation does not cast doubt on the RPD’s potential reasoning. 42 For all the foregoing reasons, the RPD’s decision is set aside, the application for judicial review is allowed and the case is remitted for reconsideration by a differently constituted panel.

Judgment The Court orders that the application for judicial review is allowed. No question of general importance is certified. Application granted; matter remitted to different panel for reconsideration. Romero v. Canada (MCI) 155

[Indexed as: Romero v. Canada (Minister of Citizenship & Immigration)] Vanessa Arango Romero, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-4224-11 2012 FC 265 James Russell J. Heard: January 16, 2012 Judgment: February 27, 2012 Immigration and citizenship –––– Admission — Immigrants — Live-in caregivers –––– Foreign national applied for work permit under live-in caregiver program — Visa officer rejected application under this program due to lack of labour market opinion (LMO) — Foreign national brought application for judicial review — Application granted on other grounds — Officer had correctly determined foreign national could not qualify under live-in caregiver program due to failure to submit LMO — Need for LMO was clearly stipulated in s. 203(1)(b) of Immigration and Refugee Protection Regulations. Immigration and citizenship –––– Admission — Application for temporary resident or immigrant visa — Powers and duties of visa or immigration officer — Relevant considerations –––– Foreign national was 23-year-old citizen of Colombia — Foreign national went to US in 2001 and unsuccessfully requested asylum — Foreign national came to Canada in 2009 and unsuccessfully applied for refugee protection and permanent residence — Foreign national returned to Columbia in 2010 — Foreign national unsuccessfully applied for work permit under live-in caregiver program — Visa officer also rejected alternate category due to alleged prior contravention of conditions of admission — For- eign national brought application for judicial review — Application granted; matter remitted for redetermination — Officer had correctly determined foreign national could not qualify under live-in caregiver program — Nonetheless, officer had admittedly erred in citing prior contravention — Error was highly material because foreign national’s compliance with past conditions said great deal about whether she would comply with future conditions — Foreign national might very well wish to stay in Canada permanently but she was apparently not willing to do anything illegal to achieve this end — Officer’s final conclusion might have been different but for significant error. 156 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

Cases considered by James Russell J.: Bondoc v. Canada (Minister of Citizenship & Immigration) (2008), 2008 CF 842, 2008 CarswellNat 4247, 2008 CarswellNat 2327, 2008 FC 842, [2008] F.C.J. No. 1063 (F.C.) — distinguished Choi v. Canada (Minister of Citizenship & Immigration) (2008), 2008 Car- swellNat 1372, 2008 FC 577, [2008] F.C.J. No. 734 (F.C.) — considered Hara v. Canada (Minister of Citizenship & Immigration) (2009), 2009 FC 263, 2009 CarswellNat 739, 79 Imm. L.R. (3d) 27, 341 F.T.R. 278 (Eng.), [2009] F.C.J. No. 371 (F.C.) — referred to Kaur v. Canada (Minister of Employment & Immigration) (1995), 98 F.T.R. 91, 1995 CarswellNat 1890, [1995] F.C.J. No. 756 (Fed. T.D.) — considered Khosa v. Canada (Minister of Citizenship & Immigration) (2009), 82 Admin. L.R. (4th) 1, 2009 SCC 12, 2009 CarswellNat 434, 2009 CarswellNat 435, 304 D.L.R. (4th) 1, 77 Imm. L.R. (3d) 1, 385 N.R. 206, (sub nom. Canada (Citizenship & Immigration) v. Khosa) [2009] 1 S.C.R. 339, [2009] S.C.J. No. 12 (S.C.C.) — referred to Li v. Canada (Minister of Citizenship & Immigration) (2008), 76 Imm. L.R. (3d) 265, 337 F.T.R. 100 (Eng.), 2008 FC 1284, 2008 CarswellNat 4261, 2008 CarswellNat 5159, 2008 CF 1284, [2008] F.C.J. No. 1625 (F.C.) — referred to N.L.N.U. v. Newfoundland & Labrador (Treasury Board) (2011), 2011 Car- swellNfld 414, 2011 CarswellNfld 415, 2011 SCC 62, (sub nom. Nfld. and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board)) 2011 C.L.L.C. 220-008, (sub nom. Newfoundland & Labrador Nurses’ Union v. Newfoundland & Labrador (Treasury Board)) 424 N.R. 220, 340 D.L.R. (4th) 17, D.T.E. 2012T-7, (sub nom. Newfoundland & Labrador Nurses’ Union v. Newfoundland & Labrador (Treasury Board)) [2011] 3 S.C.R. 708, 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 Romero v. Canada (MCI) 157

Sakibayeva v. Canada (Minister of Citizenship & Immigration) (2007), 2007 FC 1045, 2007 CarswellNat 3244, 2007 CF 1045, 2007 CarswellNat 6131 (F.C.) — referred to Singh v. Canada (Minister of Citizenship & Immigration) (2010), 2010 FC 1306, 2010 CarswellNat 5221, 2010 CF 1306, 2010 CarswellNat 5583, 95 Imm. L.R. (3d) 83 (F.C.) — considered Song v. Canada (Minister of Citizenship & Immigration) (2009), 2009 FC 349, 2009 CarswellNat 878, 79 Imm. L.R. (3d) 192 (F.C.) — referred to Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Generally — referred to 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 Pt. 9, Div. 2 — referred to s. 110 — considered s. 112 — considered s. 200(1)(a) — considered s. 200(1)(b) — considered s. 200(1)(c)(ii.1)(A) [en. SOR/2010-172] — considered s. 200(1)(c)(iii) — considered s. 200(1)(e) — considered s. 200(3)(d) — considered s. 200(3)(e) — considered s. 203(1) — referred to s. 203(1)(b) — considered s. 205 — considered s. 205(d) — considered

APPLICATION by foreign national for judicial review of decision of visa officer rejecting application for work permit.

Terry S. Guerriero, for Applicant Bernard Assan, for Respondent 158 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

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 (Officer) at the Canadian Embassy in Bogota, Colombia, dated 25 May 2011 (Decision) in which the Officer refused the Applicant’s application for a work permit.

Background 2 The Applicant is a 23-year-old citizen of Colombia. 3 In 2001, the Applicant left Colombia for the United States of America (USA), where she lived until April 2009. While she was in the USA, she requested asylum against Colombia, but her request was denied. She came to Canada on 9 April 2009 and claimed refugee status. The Appli- cant also applied for permanent residence on Humanitarian and Compas- sionate grounds in May 2009; the ultimate disposition of that application is unclear on the record. The Applicant’s claim for protection was denied in October 2009 and her Pre-Removal Risk Assessment (PRRA) was later refused. On 14 April 2010 the Applicant voluntarily executed a removal order which was in place against her and returned to Colombia. 4 On 5 May 2011, the Applicant applied for a work permit under the Live-in Caregiver Program (LCP), which would allow her to work with l’Arche London, an ecumenical, religious care home (Work Permit Ap- plication). Although a Labour Market Opinion (LMO) is required for applications under the LCP, the Applicant did not submit one with her Work Permit Application. 5 The Officer considered the Work Permit Application on 25 May 2011. According to his affidavit, he considered the Applicant’s Work Permit Application under subsection 205(d) of the Immigration and Ref- ugee Protection Regulations SOR/2002-227 (Regulations) because she had not submitted an LMO. The Officer refused the Work Permit Appli- cation and notified the Applicant of the Decision by letter dated 25 May 2011.

Decision Under Review 6 The Decision in this case consists of the letter sent to the Applicant on 25 May 2011 (Refusal Letter) and the Global Case Management Sys- tem notes (GCMS Notes) on the file. Romero v. Canada (MCI) James Russell J. 159

7 In the Refusal Letter, the Officer wrote that he was not satisfied that the Applicant met the requirements of the Act and Regulations, so he refused her Work Permit Application. On the second page of the Refusal Letter, the Officer checked boxes next to the following statements: • You have not satisfied me that you would leave Canada by the end of the period authorized for your stay. In reaching this decision, I considered several factors, including: i. your history of having contravened the conditions of admission on a previous stay in Canada; ii. your travel history; iii. limited employment prospects in your country of residence; iv. your current employment situation; v. your personal assets and financial status. 8 In the GCMS Notes, the Officer recorded that the Applicant had claimed asylum in the USA and refugee status in Canada and had been refused on both occasions. He was not satisfied that she was a genuine worker and found that her immigration record showed that she wanted to remain in Canada permanently. Based on these findings, the Officer refused the Applicant’s application for a work permit.

Issues 9 The Applicant raises the following issues in this application: a. Whether the Officer’s reasons are adequate; b. Whether the Decision was reasonable.

Standard of Review 10 The Supreme Court of Canada in New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9 (S.C.C.), held that a standard of review analysis need not be conducted in every instance. Instead, where the standard of review applicable to a particular question before the court is well-settled by past jurisprudence, the reviewing court may adopt that standard of review. Only where this search proves fruitless must the reviewing court undertake a consideration of the four factors comprising the standard of review analysis. 11 In Choi v. Canada (Minister of Citizenship & Immigration), 2008 FC 577 (F.C.), Justice Michael Kelen held at paragraph 12 that the standard of review with respect to an officer’s decision to grant a work permit is 160 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

reasonableness. Justice John O’Keefe made a similar finding in Singh v. Canada (Minister of Citizenship & Immigration), 2010 FC 1306 (F.C.) at paragraph 35. The standard of review on the second issue is reasonableness (see also Song v. Canada (Minister of Citizenship & Immigration), 2009 FC 349 (F.C.) at paragraph 17). 12 Recently, in N.L.N.U. v. Newfoundland & Labrador (Treasury Board), 2011 SCC 62 (S.C.C.), the Supreme Court of Canada held at paragraph 14 that the adequacy of reasons is not a stand-alone basis for quashing a decision. Rather, “the reasons must be read together with the outcome and serve the purpose of showing whether the result falls within a range of possible outcomes.” The first issue in this case must therefore be analysed along with the reasonableness of the Decision as a whole. 13 When reviewing a decision on the standard of reasonableness, the analysis will be concerned with “the existence of justification, transparency and intelligibility within the decisionmaking process [and also with] whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.” See Dun- smuir, above, at paragraph 47, and Khosa v. Canada (Minister of Citizenship & Immigration), 2009 SCC 12 (S.C.C.) at paragraph 59. Put another way, the Court should intervene only if the Decision was unreasonable in the sense that it falls outside the “range of possible, acceptable outcomes which are defensible in respect of the facts and law.”

Statutory Provisions 14 The following provision of the Act is applicable in this proceeding: 11. (1) A foreign national must, before entering Canada, apply to an officer for a visa or for any other document required by the regulations. The visa or document may be issued if, following an examination, the officer is satisfied that the foreign national is not inadmissible and meets the requirements of this Act. 11. (1) L’étranger doit, préalablement a` son entrée au Canada, de- mander a` l’agent les visa et autres documents requis par règlement. L’agent peut les délivrer sur preuve, a` la suite d’un contrôle, que l’étranger n’est pas interdit de territoire et se conforme a` la présente loi. Romero v. Canada (MCI) James Russell J. 161

15 The following provisions of the Regulations are also applicable in this proceeding: 110. The live-in caregiver class is prescribed as a class of foreign nationals who may become permanent residents on the basis of the requirements of this Division. ... 112. A work permit shall not be issued to a foreign national who seeks to enter Canada as a live-in caregiver unless they (a) applied for a work permit as a live-in caregiver before entering Canada; (b) have successfully completed a course of study that is equivalent to the successful completion of secondary school in Canada; (c) have the following training or experience, in a field or occupation related to the employment for which the work permit is sought, namely, (i) successful completion of six months of full-time training in a classroom setting, or (ii) completion of one year of fulltime paid employment, including at least six months of continuous employment with one employer, in such a field or occupation within the three years immediately before the day on which they submit an application for a work permit; (d) have the ability to speak, read and listen to English or French at a level sufficient to communicate effectively in an unsupervised setting; and (e) have an employment contract with their future employer. ... 200. (1) Subject to subsections (2) and (3) — and, in respect of a foreign national who makes an application for a work permit before entering Canada, subject to section 87.3 of the Act — an officer shall issue a work permit to a foreign national if, following an examination, it is established that (a) the foreign national applied for it in accordance with Division 2; (b) the foreign national will leave Canada by the end of the period authorized for their stay under Division 2 of Part 9; (c) the foreign national [...] 162 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

(ii.1) intends to perform work described in section 204 or 205, has an offer of employment to perform that work and an officer has determined (A) that the offer is genuine under subsection (5), and [...] (iii) has been offered employment, and an officer has made a positive determination under paragraphs 203(1)(a) to (e); and [...] (e) the requirements of section 30 are met. (3) An officer shall not issue a work permit to a foreign national if (d) the foreign national seeks to enter Canada as a live-in caregiver and the foreign national does not meet the requirements of section 112; (e) the foreign national has engaged in unauthorized study or work in Canada or has failed to comply with a condition of a previous permit or authorization [...] 203. (1) On application under Division 2 for a work permit made by a foreign national other than a foreign national referred to in subpara- graphs 200(1)(c)(i) to (ii.1), an officer shall determine, on the basis of an opinion provided by the Department of Human Resources and Skills Development, if [...] (b) the employment of the foreign national is likely to have a neutral or positive effect on the labour market in Canada; ... 205. A work permit may be issued under section 200 to a foreign national who intends to perform work that [...] (d) is of a religious or charitable nature. 110. La catégorie des aides familiaux est une catégorie réglementaire d’étrangers qui peuvent devenir résidents permanents, sur le fonde- ment des exigences prévues a` la présente section. ... 112. Le permis de travail ne peut etreˆ délivré a` l’étranger qui cherche a` entrer au Canada au titre de la catégorie des aides familiaux que si l’étranger se conforme aux exigences suivantes: Romero v. Canada (MCI) James Russell J. 163

a) il a fait une demande de permis de travail a` titre d’aide famil- ial avant d’entrer au Canada; b) il a terminé avec succès des etudes´ d’un niveau equivalent´ a` des etudes´ secondaires terminées avec succès au Canada; c) il a la formation ou l’expérience ci après dans un domaine ou une catégorie d’emploi lié au travail pour lequel le permis de travail est demandé: (i) une formation a` temps plein de six mois en salle de classe, terminée avec succès, (ii) une année d’emploi rémunéré a` temps plein — dont au moins six mois d’emploi continu auprès d’un même employeur — dans ce domaine ou cette cat- egorie´ d’emploi au cours des trois années précédant la date de présentation de la demande de permis de travail; d) il peut parler, lire et ecouter´ l’anglais ou le fran¸cais suffisam- ment pour communiquer de fa¸con efficace dans une situation non supervisée; e) il a conclu un contrat d’emploi avec son futur employeur. ... 200. (1) Sous réserve des paragraphes (2) et (3), et de l’article 87.3 de la Loi dans le cas de l’étranger qui fait la demande préalablement a` son entrée au Canada, l’agent délivre un permis de travail a` l’étranger si, a` l’issue d’un contrôle, les el´´ ements ci-après sont etablis:´ a) l’étranger a demandé un permis de travail conformément a` la section 2; b) il quittera le Canada a` la fin de la période de séjour qui lui est applicable au titre de la section 2 de la partie 9; c)il se trouve dans l’une des situations suivantes: [...] (ii.1) il entend exercer un travail visé aux articles 204 ou 205, il a re¸cu une offre d’emploi pour un tel travail et l’agent a conclu que: (A) l’offre etait´ authentique conformément au paragraphe (5), [...] 164 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

(iii) il a re¸cu une offre d’emploi et l’agent a rendu une décision positive conformément aux alinéas 203(1)a) a` e); [...] e) il satisfait aux exigences prévues a` l’article 30. (3) Le permis de travail ne peut etreˆ délivré a` l’étranger dans les cas suivants: d) l’étranger cherche a` entrer au Canada et a` faire partie de la cat- egorie´ des aides familiaux, a` moins qu’il ne se conforme a` l’article 112; e) il a poursuivi des etudes´ ou exercé un emploi au Canada sans autorisation ou permis ou a enfreint les conditions de l’autorisation ou du permis qui lui a et´´ e délivré [...] 203. (1) Sur demande de permis de travail présentée conformément a` la section 2 par tout etranger,´ autre que celui visé a` l’un des sousalinéas 200(1)c)(i) a` (ii.1), l’agent décide, en se fondant sur l’avis du ministère des Ressources humaines et du Développement des compétences, si, a` la fois: [...] b) l’exécution du travail par l’étranger est susceptible d’avoir des ef- fets positifs ou neutres sur le marché du travail canadien; ... 205. Un permis de travail peut etreˆ délivré a` l’étranger en vertu de l’article 200 si le travail pour lequel le permis est demandé satisfait a` l’une ou l’autre des conditions suivantes: [...] d) il est d’ordre religieux ou charitable.

Arguments The Applicant The Officer’s Reasons Are Inadequate 16 The Officer refused the Applicant’s application because he found she had previously breached the conditions of her admission to Canada. The Applicant says that the Decision does not contain any details about what she did to breach the conditions of her admission and that it is not clear what the Officer based this conclusion on. She notes that she voluntarily executed the removal order which was in place against her. Romero v. Canada (MCI) James Russell J. 165

The Decision Was Unreasonable 17 The Applicant argues that the Officer found she was not a genuine worker without any evidence for this finding. She relies on Bondoc v. Canada (Minister of Citizenship & Immigration), 2008 FC 842 (F.C.) for the proposition that visa officers do not have to be satisfied that applicants under the LCP have only a temporary purpose in coming to Can- ada. With respect to LCP applicants, officers may be satisfied that applicants will not remain in Canada if their permanent residence application under the LCP is rejected. The Applicant says that she meets all the requirements of the LCP set out in section 112 of the Regulations so Bondoc applies in her case. 18 The Applicant also says that the Officer’s finding that she would remain in Canada illegally was speculative and unreasonable. The Officer concluded that she would remain in Canada illegally because she had limited employment prospects in Colombia, she was unemployed, and because she had limited assets. These factors show that she has a desire to work in Canada, but do not show that she would remain in Canada illegally.

The Respondent 19 The Respondent says that Kaur v. Canada (Minister of Employment & Immigration), [1995] F.C.J. No. 756 (Fed. T.D.) establishes that visa applicants must provide all documents to support their applications. The Applicant’s argument is based on an assertion that she meets the requirements for admission under the Live-in Caregiver class which are set out is section 112 of the Regulations. However, she does not meet these requirements. To be a member of the Live-in Caregiver class, an applicant must show that she has a job offer which has been approved by HRSDC and must submit an LMO from HRSDC. There is no evidence in this case that the Applicant submitted an LMO. This means that she did not satisfy the requirements of the LCP and could not have been granted a work permit as a member of the Live-in Caregiver class. 20 Because the Applicant could not and did not apply under the LCP, Bondoc, above, is distinguishable. That case is applicable only to applications under the LCP, so the Applicant was subject to the ordinary analysis under paragraph 200(1)(b). The Officer was right to determine if the Applicant was likely to leave on the expiration of her work permit. He made a reasonable finding on this question when he refused the Appli- cant’s Work Permit Application. 166 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

Analysis 21 The record appears to show that the Applicant was not considered under the Live-in Caregiver class, pursuant to section 110 of the Regula- tions because she did not provide an LMO from HRSDC. Hence, her application was considered under subsection 205(d) of the Regulations, as relating to charitable or religious work, which did not require that she submit an LMO. 22 It seems to me that, because she did not provide an LMO, the Officer was correct to conclude that the Applicant could not qualify under the Live-in Caregiver class. The Officer makes this clear in the reasons, where he says “wishes to go to Canada as Group Home Worker for L’Arche, exempt from an LMO (C50).” The Applicant has questioned this aspect of the Decision and argued at the oral hearing of this matter that the LMO requirement was not authorized by the Act or the Regula- tions so that the Respondent’s policy to require an LMO is inconsistent with the Act and the Regulations. However, paragraph 203(1)(b) of the Regulations clearly establishes that it is: 203. (1) On application under Division 2 for a work permit made by a foreign national other than a foreign national referred to in subpara- graphs 200(1)(c)(i) to (ii.1), an officer shall determine, on the basis of an opinion provided by the Department of Human Resources and Skills Development, if ... (b) the employment of the foreign national is likely to have a neutral or positive effect on the labour market in Canada; 203. (1) Sur demande de permis de travail présentée conformément a` la section 2 par tout etranger,´ autre que celui visé a` l’un des sousalinéas 200(1)c)(i) a` (ii.1), l’agent décide, en se fondant sur l’avis du ministère des Ressources humaines et du Développement des compétences, si, a` la fois: ... b) l’exécution du travail par l’étranger est susceptible d’avoir des ef- fets positifs ou neutres sur le marché du travail canadien; 23 The Applicant says that the Live-in Caregiver class was an exception to the LMO requirement and, notwithstanding subsection 203(1) of the Regulations, the policy changed the exemption. In my view, however, the need for an LMO is clearly stipulated in subsection 203(1)(b). The Applicant had access to the current requirements when she compiled and submitted her application, and the need for an LMO was clearly stated Romero v. Canada (MCI) James Russell J. 167

there. Consequently, I cannot say that the failure to consider her as a Live-in Caregiver gives rise to any reviewable error. 24 Under paragraph 200(1)(b) of the Regulations, the Applicant had to establish that she would leave Canada by the end of the period authorized for her stay under Division 2 of Part 9. 25 The Officer was not satisfied that she was a genuine worker and that she would leave Canada at the end of the authorized period because “Her past immigration record shows clear interest to remain in Canada permanently.” 26 However, when considered as a religious or charitable worker under section 205 of the Regulations, I agree with the Applicant that the Of- ficer committed a reviewable error. In deciding that she would not likely leave Canada at the end of her authorized stay, the Officer considered a number of factors: a. The Applicant’s “history of having contravened the conditions of admission on a previous stay in Canada”; b. The Applicant’s “travel history”; c. The Applicant’s “limited employment prospects” in Colombia; d. The Applicant’s current “employment situation”; e. The Applicant’s “personal assets and financial status.” 27 The Respondent concedes that the Applicant has never contravened the conditions of admission on a previous stay in Canada and that the Officer made a mistake. 28 The issue for me, then, is whether this mistake is material and renders the Decision unreasonable. In my view, this mistake is highly material because the Applicant’s past conduct with regard to complying with past conditions says a great deal about whether she will comply with future conditions. In this case, the Applicant left Canada voluntarily when the time came for her to do so. She may wish to come to Canada on a permanent basis but she has demonstrated that this does not mean she will do anything illegal to achieve this end. Had the Officer not made this significant mistake his final conclusion might well have been different. Hence, I think the Decision has to be returned for reconsideration on this basis. See Li v. Canada (Minister of Citizenship & Immigration), 2008 FC 1284 (F.C.) at paragraph 30, Sakibayeva v. Canada (Minister of Citizenship & Immigration), 2007 FC 1045 (F.C.) at paragraph 14, and Hara v. Canada (Minister of Citizenship & Immigration), 2009 FC 263 (F.C.) at paragraph 53. 168 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

Judgment THIS COURT’S JUDGMENT is that 1. The application is allowed. The Decision is quashed and the matter is returned for reconsideration by a different officer. 2. There is no question for certification. Application granted; matter remitted for redetermination. Sivakumar v. Canada 169

[Indexed as: Sivakumar v. Canada (Minister of Public Safety & Emergency Preparedness)] Nanthiny Sivakumar, Applicant and The Minister of Public Safety and Emergency Preparedness, Respondent Federal Court Docket: IMM-4663-11 2012 FC 455 E. Heneghan J. Heard: April 4, 2012 Judgment: April 19, 2012 Immigration and citizenship –––– Exclusion and removal — Inadmissible classes — Misrepresentation — General principles –––– Applicant was citizen of Sri Lanka — Applicant was sponsored by her husband — Applicant became permanent resident in 2004, and in 2005, she left her husband — Appli- cant was found inadmissible pursuant to s. 40(1)(a) of Immigration and Refugee Protection Act on basis of misrepresentation as to genuineness of her marriage — Board dismissed applicant’s appeal of her removal order — Applicant brought application for judicial review — Application granted — Matter was returned to differently constituted panel of board for redetermination — Decision appeared to be based upon speculation on part of decision maker — It could not be seen how involvement of lawyer in drafting and filing of joint petition for divorce raised questions about genuineness of applicant’s marriage. Immigration and citizenship –––– Exclusion and removal — Removal from Canada — Appeals and judicial review — Judicial review — Miscellane- ous –––– Applicant was citizen of Sri Lanka — Applicant was sponsored by her husband — Applicant became permanent resident in 2004, and in 2005, she left her husband — Applicant was found inadmissible pursuant to s. 40(1)(a) of Im- migration and Refugee Protection Act on basis of misrepresentation as to genuineness of her marriage — Board dismissed applicant’s appeal of her removal order — Applicant brought application for judicial review — Application granted — Matter was returned to differently constituted panel of board for redetermination — Decision appeared to be based upon speculation on part of decision maker — It could not be seen how involvement of lawyer in drafting and filing of joint petition for divorce raised questions about genuineness of applicant’s marriage. 170 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

Cases considered by E. Heneghan J.: Khosa v. Canada (Minister of Citizenship & Immigration) (2009), 82 Admin. L.R. (4th) 1, 2009 SCC 12, 2009 CarswellNat 434, 2009 CarswellNat 435, 304 D.L.R. (4th) 1, 77 Imm. L.R. (3d) 1, 385 N.R. 206, (sub nom. Canada (Citizenship & Immigration) v. Khosa) [2009] 1 S.C.R. 339, [2009] S.C.J. No. 12 (S.C.C.) — followed New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1, 69 Admin. L.R. (4th) 1, 69 Imm. L.R. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) [2008] 1 S.C.R. 190, 844 A.P.R. 1, (sub nom. Dunsmuir v. New Brunswick) 2008 C.L.L.C. 220-020, D.T.E. 2008T-223, 329 N.B.R. (2d) 1, (sub nom. Dunsmuir v. New Brunswick) 170 L.A.C. (4th) 1, (sub nom. Dunsmuir v. New Brunswick) 291 D.L.R. (4th) 577, 2008 CarswellNB 124, 2008 CarswellNB 125, 2008 SCC 9, 64 C.C.E.L. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) 95 L.C.R. 65, [2008] S.C.J. No. 9, [2008] A.C.S. No. 9 (S.C.C.) — followed Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 40(1) — referred to s. 40(1)(a) — considered s. 44(2) — referred to

APPLICATION by applicant for judicial review of decision by board dismissing applicant’s appeal of her removal order.

Michael Crane, for Applicant David Joseph, for Respondent

E. Heneghan J.: I. Introduction 1 Ms. Nanthiny Sivakumar (the “Applicant”) seeks judicial review of the decision made by the Immigration and Refugee Board, Immigration Appeal Division (the “IAD”) on June 28, 2011. In that decision, the IAD dismissed the Applicant’s appeal of her removal order made on February 4, 2009 by a Member of the Immigration Division (the “ID”). The ID had found the Applicant inadmissible pursuant to paragraph 40(1)(a) of the Immigration and Refugee Protection Act, S.C. 2001 c. 27 (the “Act”), that is upon the basis of a misrepresentation. Sivakumar v. Canada E. Heneghan J. 171

II. Background 2 The Applicant is a citizen of Sri Lanka. She was married to Kandiah Sivakumar in Singapore, in a traditional Hindu religious ceremony, on October 21, 2003. This marriage was registered with the civil authorities on November 14, 2003. 3 On April 21, 2004, the husband submitted an application to Sponsor and Undertaking for the Applicant. The application was approved by a visa officer and the Applicant became a permanent resident upon landing in Montr´eal, Quebec, on December 31, 2004. 4 The Applicant moved in with her husband in Montr´eal, but claims that the husband wanted her to engage in sexual practices that appeared unnatural to her. She left him on January 21, 2005, and went to Toronto where she had family members. 5 By letter dated July 9, 2005, the husband wrote to Citizenship and Immigration Canada complaining that the Applicant did not live with him and did not intend to live with him. He also referred to the outstanding undertaking to sponsor her: “I signed a contract responsible for 3 yrs in Canada. I do not want to take care to her anymore. I am not responsible for her any action or as claim for refugee status in Canada or financial help ...”. 6 This letter from the husband led to correspondence dated December 20, 2007, from a Hearings Officer at the Canada Border Services Agency to the Applicant, convoking her to an admissibility hearing pursuant to subsection 44(2) of the Act. 7 An admissibility hearing was held by the ID on February 4, 2009. The evidence before the ID consisted of the oral testimony from the Ap- plicant, the letter from the Applicant’s husband, a copy of a joint divorce petition submitted to the Ontario Superior Court dated February 21, 2006 and a copy of a Divorce Judgment dated July 4, 2006, dissolving the marriage of the Applicant and her husband. The ID concluded that the Applicant was inadmissible due to a misrepresentation as to the genuineness of her marriage pursuant to paragraph 40(1)(a) of the Act and an exclusion order was issued against the Applicant at the end of that hearing. 8 The Applicant pursued an appeal before the IAD and a hearing was held on February 18, 2011. The evidence before the IAD consisted of the transcript of the proceedings before the ID, the decision of the ID, certain documentary evidence about country conditions in Sri Lanka, particu- 172 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

larly concerning the status of women and cultural norms about reporting family violence, and the oral evidence of the Applicant. 9 The Applicant testified about the circumstances of her marriage, the circumstances surrounding her departure from her husband in January 2005, the circumstances about signing the divorce petition. She testified about the many factual errors contained in the petition, including the fact that she could not have signed the petition on the date indicated since she was in United Kingdom at that time, as shown by stamps in her passport; that her husband had arranged for the lawyer and she did not know the lawyer’s name; that the address given for her on the divorce petition was not her address since she had never lived in Scarborough, Ontario; that the husband’s address was incorrect as he was not a resident of Ontario; and that when she signed the petition, it was blank and did not include the statements upon which the ID and ultimately the IAD relied. 10 Much of the argument before the IAD focused on whether the Appli- cant had been represented by a lawyer in the signing and drafting of the joint petition for divorce.

III. Discussion and Disposition 11 The IAD found that the Applicant is inadmissible on the basis of having made a misrepresentation, pursuant to paragraph 40(1)(a) of the Act. That paragraph provides as follows: 40. (1) A permanent resident or a foreign national is inadmissible for misrepresentation (a) for directly or indirectly misrepresenting or withholding material facts relating to a relevant matter that induces or could induce an error in the administration of this Act; 40. (1) Emportent interdiction de territoire pour fausses déclarations les faits suivants: a) directement ou indirectement, faire une présentation erronée sur un fait important quant a` un objet pertinent, ou une réti- cence sur ce fait, ce qui entraˆıne ou risque d’entraˆıner une erreur dans l’application de la présente loi; 12 The issue arising in this application for judicial review is one of mixed fact and law and therefore reviewable on the standard of reasonableness (see New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9, [2008] 1 S.C.R. 190 (S.C.C.) at para 47; Khosa v. Canada (Minister of Citizenship & Immigration), 2009 SCC 12, [2009] 1 S.C.R. 339 (S.C.C.) at para 59). Sivakumar v. Canada E. Heneghan J. 173

13 According to the decision in Khosa, supra, the reviewing Court is to assess the challenged decision in terms of justification, transparency and intelligibility; it is not open to it to substitute its own view of a preferable outcome. 14 In my opinion, having regard to the record and the applicable standard of review, the IAD’s decision does not meet the standard of reasonableness. The decision appears to be based upon speculation on the part of the decision-maker. In that regard, I refer to paragraphs 30, 32 and 33 where the IAD said the following: [30] ... The joint petition for divorce does not contain a completed lawyer’s certificate. However, there is a Superior Court of Justice of Ontario certificate of divorce dated September 29, 2006 on which there is a handwritten certification of same date by a Regina Tyronne attesting that it is a true copy of the original Court certificate. [...] [32] ... Moreover, there was no reason suggested as to why anyone would place a fake stamp providing so much personal detail on a Court certificate that evidences the completion of the divorce case, unless the person whose name is on the stamp is who she represents herself to be. [...] [33] Despite the appellant having made written submissions well in advance of this hearing calling into question whether the appellant actually attended before a lawyer or just thought the person her sponsor arranged for her to see was a lawyer, the appellant was unable to state the name of the Tamil speaking lawyer that assisted her with her joint petition for divorce. [...] 15 The uncontested facts in this matter are that the Applicant married and subsequently divorced. I fail to see how the involvement of a lawyer, or otherwise, in the drafting and filing of a joint petition for divorce, raises questions about the genuineness of her marriage. In my opinion, the IAD reached an unreasonable conclusion and thereby committed a reviewable error. 16 In the result, the application for judicial review will be allowed and the matter remitted to a differently constituted panel of the IAD for redetermination. 17 There is no question for certification arising.

Judgment THIS COURT’S JUDGMENT is that the application for judicial review of the decision of the Immigration Appeal Division (the “IAD”) of 174 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th) the Immigration and Refugee Board is allowed. The matter is hereby returned to a differently constituted panel of the IAD for redetermination. Application granted.