IMMIGRATION LAW REPORTER Third Series/Troisi`Eme S´Erie Recueil De Jurisprudence En Droit De L’Immigration VOLUME 96 (Cited 96 Imm

IMMIGRATION LAW REPORTER Third Series/Troisi`eme s´erie Recueil de jurisprudence en droit de l’immigration VOLUME 96 (Cited 96 Imm. L.R. (3d))

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[Indexed as: Canada (Minister of Citizenship & Immigration) v. Aziz] The Minister of Citizenship and Immigration, Appellant and Javed Aziz, Respondent Federal Court of Appeal Docket: A-488-10 2011 FCA 18 K. Sharlow J.A. Heard: January 18, 2011 Judgment: January 19, 2011 Immigration and citizenship –––– Exclusion and removal — Removal from Canada — Appeals and judicial review — Judicial review — Miscellaneous issues –––– Respondent was citizen of Guyana and became permanent resident of Canada at eight years old after father sponsored family — Immigration Divi- sion later determined that he was inadmissible pursuant to s. 36(1)(a) of Immi- gration and Refugee Protection Act — Respondent appealed decision to Immi- gration Appeal Division (IAD), and appeal was dismissed — Respondent applied for judicial review but was deported before hearing completed — Fol- lowing judicial review, IAD’s order was quashed and matter was sent back to be redetermined by differently constituted panel — Minister of Citizenship and Im- migration appealed decision; Minister brought motion seeking stay of Federal Court order pending outcome of appeal — Motion for stay dismissed — While judge may have breached rules of procedural fairness in not allowing Minister to make submissions, such error did not deprive judge of jurisdiction to set aside IAD decision and order new hearing — Order was governed by s. 74 of Act, and per legislation, such orders could not be appealed in absence of serious question of general importance certified by judge who made order — Minister failed to establish that serious question was raised on appeal — Motion dismissed, but without prejudice to right of Minister to make motion for appropriate relief with respect to lack of opportunity to make submissions. Immigration and citizenship –––– Appeals to Federal Court of Appeal and Supreme Court of Canada — Miscellaneous issues –––– Respondent was citizen of Guyana and became permanent resident of Canada at eight years old after father sponsored family — Immigration Division later determined that he was inadmissible pursuant to s. 36(1)(a) of Immigration and Refugee Protection Act — Respondent appealed decision to Immigration Appeal Division (IAD), and appeal was dismissed — Respondent applied for judicial review but was deported before hearing completed — Following judicial review, IAD’s order was quashed and matter was sent back to be redetermined by differently constituted 180 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d) panel — Minister of Citizenship and Immigration appealed decision; Minister brought motion seeking stay of Federal Court order pending outcome of appeal — Motion for stay dismissed — While judge may have breached rules of procedural fairness in not allowing Minister to make submissions, such error did not deprive judge of jurisdiction to set aside IAD decision and order new hearing — Order was governed by s. 74 of Act, and per legislation, such orders could not be appealed in absence of serious question of general importance certified by judge who made order — Minister failed to establish that serious question was raised on appeal — Motion dismissed, but without prejudice to right of Minister to make motion for appropriate relief with respect to lack of opportunity to make submissions. Cases considered by K. Sharlow J.A.: Canada (Minister of Citizenship & Immigration) v. Katriuk (1999), 235 N.R. 305, 1999 CarswellNat 157, [1999] F.C.J. No. 25 (Fed. C.A.) — referred to Canada (Solicitor General) v. Subhaschandran (2005), 2005 FCA 27, 2005 Car- swellNat 184, 2005 CarswellNat 1129, (sub nom. Subhaschandran v. Canada (Solicitor General)) 249 D.L.R. (4th) 269, 2005 CAF 27, 50 Imm. L.R. (3d) 119, 331 N.R. 182, (sub nom. Subhaschandran v. Canada (Solicitor General)) [2005] 3 F.C.R. 255, [2005] F.C.J. No. 107 (F.C.A.) — considered Forde v. Canada (Minister of Citizenship & Immigration) (1997), 1997 Car- swellNat 469, 1997 CarswellNat 3394, 210 N.R. 194, [1997] F.C.J. No. 310 (Fed. C.A.) — considered RJR-MacDonald Inc. v. Canada (Attorney General) (1994), [1994] 1 S.C.R. 311, 1994 CarswellQue 120F, 1994 CarswellQue 120, 54 C.P.R. (3d) 114, (sub nom. RJR-MacDonald Inc. c. Canada (Procureur général)) 164 N.R. 1, (sub nom. RJR-MacDonald Inc. c. Canada (Procureur général)) 60 Q.A.C. 241, 111 D.L.R. (4th) 385, EYB 1994-28671, [1994] S.C.J. No. 17 (S.C.C.) — followed Zundel v. Canada (Minister of Citizenship & Immigration) (2004), 2004 Car- swellNat 4262, 2004 FCA 394, 2004 CAF 394, 2004 CarswellNat 4749, (sub nom. Zündel, Re) 331 N.R. 180, [2004] F.C.J. No. 1982 (Fed. C.A.) — referred to Statutes considered: Federal Courts Act, R.S.C. 1985, c. F-7 s. 50(1)(b) — considered Immigration and Refugee Protection Act, S.C. 2001, c. 27 Generally — referred to s. 52 — considered s. 66 — considered s. 68 — considered Canada (Minister of Citizenship & Immigration) v. Aziz K. Sharlow J.A. 181

s. 74 — considered

MOTION by Minister of Citizenship and Immigration seeking stay of Federal Court order pending disposition of appeal.

Brad Gotkin, Daniel Engel, for Appellant Dov Maierovitz, for Respondent

K. Sharlow J.A.:

1 The respondent Javed Aziz was the subject of a deportation order. He was entitled to appeal to the Immigration Appeal Division (“IAD”) and did so, without success. He sought and was granted leave to apply for judicial review of the IAD decision (IMM-2019-10) but was deported before his application for judicial review was heard on December 8, 2010. The hearing of his application for judicial review resulted in an order of the Federal Court dated December 22, 2010 quashing the IAD decision and requiring the deportation appeal to be reconsidered by a differently constituted tribunal. The Minister of Citizenship and Immigra- tion appealed the Federal Court order and now seeks a stay of the Federal Court order pending the disposition of this appeal. For the following reasons, the motion for a stay will be dismissed. 2 The Minister alleges that the order under appeal is based on one or more interpretations of provisions of the Immigration and Refugee Pro- tection Act, S.C. 2001, c.27, that are wrong, and that were determined by the judge without giving the Minister the opportunity to make submissions. Of particular concern to the Minister are the comments of the judge in his endorsement to the order to the effect that the IAD failed to consider whether to stay the deportation order with conditions, and that Mr. Aziz “is to be returned to Canada forthwith”. To put those comments in context, I quote the order and endorsement in their entirety (omitting the reproduction in the endorsement of sections 66 and 68 of the Immi- gration and Refugee Protection Act): ORDER [1] This judicial review application is granted, the March 18, 2010 decision of the Immigration Appeal Division (IAD) is set aside and Javed Aziz’s appeal from a deportation Order dated February 26, 2009 is to be reconsidered by a differently constituted tribunal. No question of general importance was proposed. 182 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

Endorsement Javed Aziz, now 21 years old, was born in Guyana and became a permanent resident of Canada in October 1997 after his father sponsored his family. He was 8 years old at the time. His father aban- doned his family shortly after they arrived here. He was ordered deported after a member of the Immigration Division found him inadmissible under paragraph 361(a) of the Immigration and Refugee Protection Act (2001, c. 27) (IRPA). He appealed that deportation to the Immigration Appeal Division (IAD). He conceded the legal validity of the deportation order. The member of the IAD said at paragraph 4 of her reasons that the only issue to be determined is whether there were sufficient humanitarian and compassionate considerations to warrant special relief. After setting out the Ribic factors as mandated by the Supreme Court of Canada’s decision in Chieu v Canada (Minister of Citizenship and Immigration), 2002 SCC 3, she decided to dismiss the appeal principally for the reason that she was not satisfied Mr. Aziz “has demonstrated that he is capable of rehabilitation”. Paragraph 36(1)(a) provides that a permanent resident is inadmissible on grounds of serious criminality for having been convicted in Can- ada of an offence under an Act of Parliament punishable by a maxi- mum term of at least 10 years or of an offence under an Act of Par- liament for which a term of imprisonment of more than six months has been imposed. Section 67(1)(c) enables the IAD to allow on appeal from a deportation order taking into account the best interests of a child directly affected by the decision if sufficient humanitarian and compassionate considerations warrant special relief in light of al of the circumstances of the case. The reason this judicial review must be allowed is because the member of the IAD failed to consider an alternative ground for special relief, namely, if the appeal was not allowed and the removal order quashed his Counsel at the IAD’s hearing submitted “in the alternative I would submit that the execution of the removal order should be stayed and obviously, clearly Mr. Aziz will abide by al the conditions imposed by the Board if the order was to be stayed” (see transcript in the Certified Tribunal Record (CTR) at page 189). Counsel for the Minister opposed the stay alternative (see CTR at page 191). [...] Canada (Minister of Citizenship & Immigration) v. Aziz K. Sharlow J.A. 183

Nowhere in the Member’s reasons is there any consideration of the stay alternative nor any finding on that alternative. The importance of the stay alternative was emphasized by my colleague Justice Luc Martineau in Canada (Minister of Citizenship and Immigration) v Awaleh, 2009 FC 1154 at paragraphs 20 and 23: 20 The IAD is bestowed with a great deal of discretion in conducting appeals of removal orders. Pursuant to subsec- tions 67(1)(c) and 68(1), the IAD may allow an appeal or stay a removal order where they are satisfied, “taking into account the best interests of a child directly affected by the decision, that sufficient humanitarian and compassionate considerations warrant special relief in light of all the circumstances of the case.” 23 Finally, it is important to reiterate that the impugned decision does not determine the respondent’s appeal of his removal order. The IAD may review the stay at any time and vary the conditions or reject his appeal (see section 68 of the Act). The rejection of the appeal would affirm the removal order and result in the respondent being evicted from Canada. I understand Mr. Aziz has been deported to Guyana and is there now. In view of this decision, he is to be returned to Canada forthwith. In the light of the foregoing, I refrain from commenting on the IAD’s decision except to say that to this Court its finding the Applicant is incapable of rehabilitation is unreasonable as the Member had no substantive evidence (medical, psychiatric or from his parole officer) on the question. THEREFORE, THIS COURT ORDERS that this judicial review is granted. 3 The principal concern of the Minister is that the order under appeal could be interpreted as an order requiring the Minister to return Mr. Aziz to Canada forthwith. I do not read the order that way. Counsel for Mr. Aziz conceded, and I agree, that the order does nothing except set aside the decision of the IAD and require a rehearing. Although the judge stated that as a result of his order Mr. Aziz would be returned to Canada, that statement appears only in the endorsement and not in the order. Again I agree with counsel for Mr. Aziz that this is simply the judge’s understanding of the meaning of section 52 of the Immigration and Refu- gee Protection Act. The parties disagree on whether section 52 requires Mr. Aziz to be returned to Canada for the new IAD hearing, but that is a point on which I am not required to express an opinion. 184 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

4 In determining whether to stay an order pending appeal, this Court follows RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311 (S.C.C.). According to that case, a stay may be granted if a serious issue is raised on appeal, the appellant will suffer irreparable harm if the stay is not granted, and the balance of convenience favours the appellant. 5 The order under appeal is governed by section 74 of the Immigration and Refugee Protection Act. Generally, such an order cannot be appealed in the absence of a serious question of general importance certified by the judge who made the order. In this case, the judge was not asked to certify a question and he did not do so. I cannot conclude that the Min- ister has established the existence of a serious question on appeal unless it is at least arguable that the Minister was entitled to appeal without a certified question. 6 The Minister argues that in this case no certified question is required. He relies on a number of immigration cases in which this Court has permitted an appeal to proceed despite the absence of a certified question. For example, in Forde v. Canada (Minister of Citizenship & Immigra- tion) (1997), 210 N.R. 194 (Fed. C.A.), the Court entertained an appeal from a Federal Court order staying a deportation pending the disposition of another immigration case. The Court concluded that no certified question was required because issue was whether the stay order was within the jurisdiction of the Federal Court under paragraph 50(1)(b) of the Fed- eral Courts Act, R.S.C. 1985, c. F-7. In Canada (Solicitor General) v. Subhaschandran, 2005 FCA 27, [2005] 3 F.C.R. 255 (F.C.A.), the Court entertained an appeal from a Federal Court order that it construed as a refusal of a judge to grant or dismiss a motion to stay a deportation. This Court has also held that no certified question is required to appeal an order on a motion for recusal based on an allegation of bias, because such an allegation goes to the jurisdiction of a judge to adjudicate the case: see, Canada (Minister of Citizenship & Immigration) v. Katriuk, [1999] F.C.J. No. 25 (Fed. C.A.), Zundel v. Canada (Minister of Citizenship & Immigration), 2004 FCA 394 (Fed. C.A.). 7 In my view, none of these cases assist the Minister. In this case, the Federal Court judge had the jurisdiction to make an order disposing of Mr. Aziz’ application for judicial review, and he did so. He did not decline to decide the application. He did not purport to make an order on the basis of any statutory authority outside the Immigration and Refugee Canada (Minister of Citizenship & Immigration) v. Aziz K. Sharlow J.A. 185

Protection Act. There is no allegation of actual or apprehended bias, and no facts upon which any such allegation could be made. 8 For the purpose of this motion, I assume without deciding that the judge may have breached a rule of procedural fairness because he did not have the benefit of submissions from the Minister when he interpreted section 52 as he did, or when he concluded as he did that the IAD was obliged to put its mind to the question of whether to stay the deportation with conditions. However, I am not persuaded that such error, if it occurred, would have deprived the judge of his jurisdiction to set aside the decision of the IAD and to order a rehearing. In my view, the Minister does not have a reasonable basis for arguing that this appeal may proceed without a certified question. I conclude that the Minister has not established that a serious question is raised on the appeal. 9 That said, it seems to me that the failure of the judge to give the Min- ister an opportunity to make submissions on those two issues (assuming there was such a failure) is a matter that might give the Minister a basis for seeking reconsideration or a variation of the order under appeal, including a reconsideration of the issue of whether this case merits a certified question. Therefore, although I will make an order dismissing the Minister’s motion for stay, that will be without prejudice to the right of the Minister to make a motion in the Federal Court for appropriate relief and, depending upon the outcome of that motion, to submit a new motion for a stay in this Court if circumstances warrant. 10 The respondent has asked for costs. In my view there are no special circumstances warranting such an award. Motion dismissed. 186 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

[Indexed as: Shahid v. Canada (Minister of Citizenship & Immigration)] Minister of Citizenship and Immigration, Appellant and Zafar Shahid, Respondent Federal Court of Appeal Docket: A-149-10 2011 FCA 40 Marc No¨el, J.D. Denis Pelletier, Johanne Trudel JJ.A. Heard: January 11, 2011 Judgment: February 3, 2011 Immigration and citizenship –––– Admission — Immigrants — Skilled workers — Categories (point system) — Education –––– Applicant brought application for permanent residence as skilled worker — Application was dismissed — Visa officer awarded applicant 63 points, four short of minimum 67 required for Federal Skilled Worker Class — Visa officer found that wife’s independent studies as external candidate did not qualify as equivalent of full-time studies — Applicant brought application for judicial review — Application was granted — Officer was found to have erred by not awarding applicant four points for his spouse’s educational credentials — Trial judge found that visa officer was unreasonable as evidence established that applicant’s wife successfully completed exams and obtained degree that usually required two years of full- time study — Minister appealed — Appeal allowed — Trial judge erred by ignoring difference between part-time studies and full-time studies as there was no discrepancy between years studied and degree received — Applicant’s wife received two-year degree through two years of study so there were no hours to equate — Definition of full-time equivalent did not include assessment of mode of study — Definition focused on time required to complete studies — Appli- cant’s wife did not qualify as she failed to meet requirements in s. 78(2)(d)(ii) of Immigration and Refugee Protection Regulations as she did not have 14 years of full-time or full time equivalent studies. Cases considered by Marc No¨el J.A.: Rizzo & Rizzo Shoes Ltd., Re (1998), 1998 CarswellOnt 1, 1998 CarswellOnt 2, 50 C.B.R. (3d) 163, [1998] 1 S.C.R. 27, 33 C.C.E.L. (2d) 173, 154 D.L.R. (4th) 193, 36 O.R. (3d) 418 (headnote only), (sub nom. Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re) 221 N.R. 241, (sub nom. Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re) 106 O.A.C. 1, (sub nom. Adrien v. Ontario Ministry of La- bour) 98 C.L.L.C. 210-006, [1998] S.C.J. No. 2 (S.C.C.) — followed Shahid v. Canada (Minister of Citizenship & Immigration) 187

Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 12(2) — considered Regulations considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Immigration and Refugee Protection Regulations, SOR/2002-227 Generally — referred to s. 1(1) “études” — considered s. 1(1) “studies” — considered s. 73 “diplôme” — considered s. 73 “educational credential” — considered s. 75(1) — considered s. 78(1) “équivalent temps plein” — considered s. 78(1) “full-time” — considered s. 78(1) “full-time equivalent” — considered s. 78(1) “temps plein ” — considered s. 78(2) — considered s. 78(2)(d)(ii) — considered Words and phrases considered: educational credential The expression “educational credential” is defined in section 73 as follows: “educational credential” means any diploma, degree or trade or apprenticeship credential issued on the completion of a program of study or training at an educational or training institution recognized by the authorities responsible for registering, accrediting, supervising and regulating such institutions in the country of issue. « diplôme » Tout diplôme, certificat de compétence ou certificat d’apprentissage obtenu conséquemment a` la réussite d’un programme d’études ou d’un cours de formation offert par un etablisse-´ ment d’enseignement ou de formation reconnu par les autorités chargées d’enregistrer, d’accréditer, de superviser et de réglementer de tels etablissements´ dans le pays de délivrance de ce diplôme ou certificat. studies The term “studies” is defined in section 1 as follows: “studies” means studies undertaken at a university or college, or any course of academic, professional or vocational training. « etudes´ » Etudes´ dans une université ou un collège ou cours de formation générale, théorique ou professionnelle. 188 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d) full-time Finally, the definitions of “full-time” and “full-time equivalent” are set out in subsection 78(1) of the IRPR: The definitions in this subsection apply in this section. “full-time” means, in relation to a program of study leading to an educational credential, at least 15 hours of instruction per week during the academic year, including any period of training in the work- place that forms part of the course of instruction. “full-time equivalent” means, in respect of part-time or accelerated studies, the period that would have been required to complete those studies on a full-time basis. Les définitions qui suivent s’appliquent au présent article. « equivalent´ temps plein » Par rapport a` tel nombre d’années d’études a` temps plein, le nombre d’années d’études a` temps partiel ou d’études accélérées qui auraient et´´ e nécessaires pour compléter des etudes´ equivalentes.´ « temps plein » A` l’égard d’un programme d’études qui conduit a` l’obtention d’un diplôme, correspond a` quinze heures de cours par semaine pendant l’année scolaire, et comprend toute période de formation donnée en milieu de travail et faisant partie du programme. It is common ground that the definition of “full-time equivalent” applies to those who obtain an educational credential through “part-time or accelerated studies”. The question is whether the definition also extends to those who successfully complete their studies on their own through what the parties have described as “self-study” or what I believe is more appropriately described as “independent study” paper The mention of the word “paper” on the spouse’s marks sheet does not necessarily mean that she performed assignments or did “coursework” as the respondent suggests. The word can also mean “a set of questions to be answered ... in an examination” (Canadian Oxford Dictionary, 2nd Edition, Oxford University Press, 2004). Counsel was unable to demonstrate why the word “paper” on the marks sheet should be construed as she suggests.

APPEAL of judgment reported at Shahid v. Canada (Minister of Citizenship & Immigration) (2010), 2010 CarswellNat 847, 2010 CF 130, 2010 CarswellNat 278, 2010 FC 130 (F.C.).

Alexis Singer, Ada Mok, for Appellant Cathryn D. Sawicki, for Respondent Shahid v. Canada (Minister of Citizenship & Immigration) Marc No¨el J.A. 189

Marc No¨el J.A.:

1 This is an appeal by the Minister of Citizenship and Immigration (the Minister) against a decision of O’Reilly J. of the Federal Court (the Ap- plications Judge) wherein he granted the application for judicial review brought by Mr. Zafar Shahid (the respondent) against a decision of an immigration officer denying his application for permanent residency as a skilled worker. 2 Subsection 12(2) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 provides that a foreign national may be selected for permanent residency as a member of the economic class on the basis of his ability to become economically established in Canada. The Immigration and Refugee Protection Regulations, SOR/2002-227 (the IRPR) set out the applicable criteria for a Federal Skilled Worker Class as follows (subsection 75(1)): ... 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. [...] personnes qui peuvent devenir résidents permanents du fait de leur capacité a` réussir leur etablissement´ economique´ au Canada, qui sont des travailleurs qualifiés et qui cherchent a` s’établir dans une province autre que le Québec. 3 In order to determine whether a skilled worker will be able to become economically established in Canada, the IRPR identify various criteria with which a specific number of points is associated; an applicant must be awarded a minimum of 67 points to qualify for the Federal Skilled Worker Class. 4 In the present case, the respondent was awarded 63 points. The immigration officer did not award any points under the adaptability criteria for the respondent’s spouse’s educational credentials. The respondent claims that he should have been awarded the 4 available points, which would have given him the minimum requirement of 67 points, because his spouse meets the educational requirement of the IRPR. 5 The Applications Judge agreed and quashed the decision of the immigration officer on the basis that his refusal to award the 4 points was unreasonable. 190 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

The Relevant Provisions of The IRPR 6 In order for the respondent to be entitled to the 4 points, his spouse had to meet the requirements set out in subparagraph 78(2)(d)(ii) of the IRPR: a two-year university educational credential at the bachelor’s level and a total of at least 14 years of completed full-time or full-time equivalent studies; il a obtenu un diplôme universitaire de premier cycle nécessitant deux années d’études et a accumulé un total d’au moins quatorze an- nées d’études a` temps plein complètes ou l’équivalent temps plein; 7 The expression “educational credential” is defined in section 73 as follows: “educational credential” means any diploma, degree or trade or apprenticeship credential issued on the completion of a program of study or training at an educational or training institution recognized by the authorities responsible for registering, accrediting, supervising and regulating such institutions in the country of issue. « diplôme » Tout diplôme, certificat de compétence ou certificat d’apprentissage obtenu conséquemment a` la réussite d’un programme d’études ou d’un cours de formation offert par un etablisse-´ ment d’enseignement ou de formation reconnu par les autorités chargées d’enregistrer, d’accréditer, de superviser et de réglementer de tels etablissements´ dans le pays de délivrance de ce diplôme ou certificat. 8 The term “studies” is defined in section 1 as follows: “studies” means studies undertaken at a university or college, or any course of academic, professional or vocational training. « etudes´ » Etudes´ dans une université ou un collège ou cours de formation générale, théorique ou professionnelle. 9 Finally, the definitions of “full-time” and “full-time equivalent” are set out in subsection 78(1) of the IRPR: The definitions in this subsection apply in this section. “full-time” means, in relation to a program of study leading to an educational credential, at least 15 hours of instruction per week during the academic year, including any period of training in the work- place that forms part of the course of instruction. “full-time equivalent” means, in respect of part-time or accelerated studies, the period that would have been required to complete those studies on a full-time basis. Shahid v. Canada (Minister of Citizenship & Immigration) Marc Noël J.A. 191

Les définitions qui suivent s’appliquent au présent article. « equivalent´ temps plein » Par rapport a` tel nombre d’années d’études a` temps plein, le nombre d’années d’études a` temps partiel ou d’études accélérées qui auraient et´´ e nécessaires pour compléter des etudes´ equivalentes.´ « temps plein » A` l’égard d’un programme d’études qui conduit a` l’obtention d’un diplôme, correspond a` quinze heures de cours par semaine pendant l’année scolaire, et comprend toute période de formation donnée en milieu de travail et faisant partie du programme. 10 The outcome of this appeal essentially turns on the meaning which is to be attributed to these last two definitions.

The Decision under Appeal 11 The Applications Judge briefly alluded to the education system in Pa- kistan. He noted that “external candidates” can obtain a degree without attending classes on a full-time or part-time basis (Reasons at para. 8). In this respect, the evidence shows that external candidates are “not required to attend classes, complete any assigned readings or hand in assignments; [they] simply [have] to write an exam in each subject studied”. The requirements to write an examination as an external candidate are: (i) register for a scheduled examination session; (ii) complete the appropriate form; and (iii) pay the required fees. Once enrolled for an examination, the external candidate can prepare through independent studies or with the assistance of a private tutor (Affidavit of the immigration officer, Appeal Book at p. 584, paras. 4 and 5). 12 One way of distinguishing an “external candidate” from a “regular” student is through their respective marks sheet. A regular student’s marks sheet states, inter alia, the program and year in which the examinations were written, the particular school at which the studies were undertaken and the overall result. In contrast, an external candidate’s marks sheet identifies the student as such without any indication of a school or affili- ated college (Ibid. at p. 585, paras. 6 and 7). 13 The Applications Judge rendered his decision on the basis that the respondent’s spouse was an external candidate. He noted that it was clear that she did not meet the definition of “full-time” as she did not provide evidence that she attended classes for 15 hours a week. However, even if she had not achieved 14 years of “full-time studies”, the officer had to consider whether she nevertheless met the definition of “full-time equivalent studies”. According to the Applications Judge, the “full-time 192 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

equivalent” requirement can be met whether the respondent’s spouse studied on her own or followed a formal course (Reasons at para. 9): ... Even if she studied elsewhere, or on her own, whether part-time or on an accelerated basis, it seems to me she could meet the definition of “full-time equivalent” if she proved that the degree she obtained would ordinarily take 14 years of full-time study to obtain. Here, the evidence showed that she took exams over the course of two years and obtained a degree that ordinarily takes two years of full-time study to achieve. And she provided proof of twelve years of full-time study preceding her university credential. ... 14 Applying this reasoning, the Applications Judge held that the decision of the immigration officer was unreasonable because the evidence established that the respondent’s spouse successfully completed exams and obtained a degree that ordinarily takes two years of full-time study to obtain (Reasons at paras. 7 and 9). As such, the respondent was entitled to the 4 points. The Applications Judge therefore allowed the application for judicial review and referred the matter to a different immigration officer with instructions that it be reconsidered in accordance with the reg- ulatory requirements as he construed them. 15 The Applications Judge certified the following question of general importance: Does the definition of “full-time equivalent” in [subsection] 78(2) of the [IRPR] merely require an assessment of the period of time that would have been needed to achieve a particular educational credential on a full-time basis, or does it also require a consideration of the nature and quantity of instruction the individual receives?

Position of the Parties 16 The appellant submits that the Applications Judge erred in holding that the definition of “full-time equivalent” applied on the facts of this case. The appellant submits that in order for this definition to apply, the respondent had to provide evidence that his spouse studied at an educational institution for a long period on a part-time basis or that she studied for a shorter more intense period to complete her studies. According to its wording, the definition has no other application. 17 It follows that the Applications Judge could not rely on this definition in order to find that the spouse’s diploma counted towards the 14 years of study she needed to complete before the respondent could be awarded the 4 points for her education. Shahid v. Canada (Minister of Citizenship & Immigration) Marc No¨el J.A. 193

18 The respondent for his part takes the position that the Applications Judge properly construed and applied the notion of “full-time equivalent”. According to the respondent “full-time equivalent” includes “independent study” as well as “part-time studies” and the Applications Judge properly applied this definition on the facts of this case. 19 In the alternative, the respondent submits that his spouse did in fact attend courses and complete assignments at Sir Syed College - an affili- ate of the University of Karachi - in order to obtain her educational credential. In support of this submission the respondent points to his spouse’s marks sheet, which clearly states that she took Islamic studies and education studies and mentions “Paper I” in each case. According to the respondent, it is reasonable to infer from this that the respondent’s spouse completed both “coursework” and exams as she had to perform various assignments in order to obtain her credential (Memorandum of the respondent at para. 23).

Analysis and Decision 20 Dealing first with this last issue, I note that the Applications Judge did not accept that the respondent’s spouse followed courses at a recognized educational institution or performed assignments, as he rendered his decision on the basis that she was an external candidate. I can detect no error in this regard. 21 The mention of the word “paper” on the spouse’s marks sheet does not necessarily mean that she performed assignments or did “coursework” as the respondent suggests. The word can also mean “a set of questions to be answered ... in an examination” (Canadian Oxford Dic- tionary, 2nd Edition, Oxford University Press, 2004). Counsel was unable to demonstrate why the word “paper” on the marks sheet should be construed as she suggests. 22 Furthermore, when the spouse’s marks sheet is compared to that of the respondent who attended courses at the National Government Col- lege, one notes that, in contrast to her husband, she is labelled as an external candidate and no mention is made as to any institution she might have attended. 23 The respondent also relied on a letter from the Registry of the Univer- sity of Karachi dated January 2nd, 2008 which certifies that the degree obtained by the respondent’s spouse in 1985 “is equivalent to university degree of two years and 14 years of full-time education/studies”. 194 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

24 I do not believe that this letter can be of assistance to the respondent as it is apparent that it was framed so as to opine on the very issue that is to be decided in the present case. 25 The central issue in this appeal turns on the interpretation of the definition of “full-time equivalent”. This is a pure question of statutory construction which stands to be decided on a standard of correctness. In as- certaining the meaning and effect of this definition, the Court must bear in mind that (Rizzo & Rizzo Shoes Ltd., Re, [1998] 1 S.C.R. 27 (S.C.C.) at para.21): ..., the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. 26 It is common ground that the definition of “full-time equivalent” applies to those who obtain an educational credential through “part-time or accelerated studies”. The question is whether the definition also extends to those who successfully complete their studies on their own through what the parties have described as “self-study” or what I believe is more appropriately described as “independent study”. 27 The Applications Judge answered this question in the affirmative. He held that the definition applies regardless of the manner in which the degree is obtained (Reasons at para. 9). 28 On the face of it, the definition of “full-time equivalent” is restricted to persons engaged in “part-time or accelerated studies”. It simply provides that such persons will, upon obtaining an “educational credential” (i.e. a university degree in this case), be credited with the number of hours of instruction that would have been required to obtain the same degree on a full-time basis. When, as is the case here, a university degree is involved, the term “studies” is defined as those “undertaken at a university” (see the definition of “studies” quoted at para. 8, above). 29 Thus for example, a person who engages in part-time studies and obtains a university degree after two years of studies, in circumstances where the same degree can be obtained on a full-time basis after one year, will be credited with having been engaged in a program of study of “at least 15 hours of instruction per week” during a single year. Con- versely, a person who engages in accelerated studies and obtains a university degree after one year of studies, in circumstances where the same degree is obtained on a full-time basis over the course of two years, is credited with having been engaged in a program of study of “at least 15 hours of instruction per week” over two years. Shahid v. Canada (Minister of Citizenship & Immigration) Marc No¨el J.A. 195

30 The net result is that a person who obtains a degree through “part- time or accelerated studies” is deemed to have studied the equivalent number of hours as someone who obtained the same degree on a full- time basis. Significantly, no other form of equivalency is created by the definition. 31 The construction given by the Applications Judge ignores this limita- tion. There is in this case no discrepancy in terms of time studied as, based on his own finding, the respondent’s spouse took two years to obtain a degree that ordinarily takes two years of full-time study to achieve (Reasons at para. 9). It follows that there were no hours to equate. The equivalence identified by the Applications Judge goes to the mode or manner of studies rather than the time required to complete them. The definition does not operate this way. 32 Beyond this, the interpretation which the Applications Judge proposes does not take into account the defined meaning of the word “studies” which, in the case of a university degree means those “undertaken at a university”. Nor does it take into account the definition of “educational credential” in section 73 (see para. 7 above) which means “diploma, degree or trade or apprenticeship credential issued on the completion of a program of study ... at an educational or training institution recognized by the authorities ...”. Based on the Applications Judge’s reasoning, the definition of “full-time equivalent” would apply whether or not these requirements are met. 33 On a correct construction of the definition of “full-time equivalent”, the respondent’s spouse failed to meet the two requirements of subparagraph 78(2)(d)(ii) in that she did not obtain an education credential as defined or achieve 14 years of full-time or full-time equivalent studies. It follows that the immigration officer came to the proper conclusion and the Applications Judge erred in intervening. 34 I would therefore allow the appeal, set aside the decision of the Ap- plications Judge, restore the decision of the immigration officer and answer the certified question as follows: The definition of “full-time equivalent” applies when there is a discrepancy between the time in which a particular “educational credential” (as defined) is obtained by an individual and the time required to obtain the same credential on a full-time basis by reason of having followed part-time or accelerated studies at an educational or training institution recognized by the authorities. It follows that the definition 196 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

requires a consideration of both the nature and quantity of instruction received by the individual.

J.D. Denis Pelletier J.A.:

I agree

Johanne Trudel J.A.:

I agree Appeal allowed. Hillary v. Canada 197

[Indexed as: Hillary v. Canada (Minister of Citizenship & Immigration)] Wayne Anthony Hillary, Appellant and The Minister of Citizenship and Immigration, Respondent Federal Court of Appeal Docket: A-247-10 2011 FCA 51 Marc No¨el, John M. Evans, K. Sharlow JJ.A. Heard: February 8, 2011 Judgment: February 9, 2011 Immigration and citizenship –––– Exclusion and removal — Removal from Canada — Removal after admission — Deportation –––– Applicant, citizen of Jamaica, came to Canada as permanent resident in 1982 — Applicant was diagnosed as suffering from schizophrenia, was HIV positive, and addicted to crack cocaine — On June 5, 2005, applicant was ordered deported and removal order was made against him by board’s immigration division — Applicant brought appeal against deportation, but board dismissed his appeal — Two years later, applicant applied to board to reopen its decision, but board refused to reopen it — Applicant then applied to federal court for judicial review, but his application was dismissed — Applicant appealed court’s decision — Appeal dismissed — Board did not breach principle of natural justice — Applicant’s schizophrenia may have impaired his ability to appreciate nature of proceedings to extent that representation by counsel alone was insufficient to enable him to protect his interests and participate meaningfully — However, this was not enough to establish that board’s dismissal of applicant’s appeal was vitiated by breach of principle of natural justice — Board was not obligated to make inquiries about whether designated representative needed to be appointed merely because it knew that applicant was schizophrenic — Counsel had duty to advise board if applicant was unable to appreciate nature of proceedings. Administrative law –––– Requirements of natural justice — Right to hearing — Procedural rights at hearing — Legal representation –––– Applicant, citizen of Jamaica, came to Canada as permanent resident in 1982 — Applicant was diagnosed as suffering from schizophrenia, was HIV positive, and addicted to crack cocaine — On June 5, 2005, applicant was ordered deported and removal order was made against him by board’s immigration division — Appli- cant brought appeal against deportation, but board dismissed his appeal — Two years later, applicant applied to board to reopen its decision, but board refused to reopen it — Applicant then applied to federal court for judicial review, but his 198 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d) application was dismissed — Applicant appealed court’s decision — Appeal dismissed — Board did not breach principle of natural justice — Applicant’s schizophrenia may have impaired his ability to appreciate nature of proceedings to extent that representation by counsel alone was insufficient to enable him to protect his interests and participate meaningfully — However, this was not enough to establish that board’s dismissal of applicant’s appeal was vitiated by breach of principle of natural justice — Board was not obligated to make inquiries about whether designated representative needed to be appointed merely because it knew that applicant was schizophrenic — Counsel had duty to advise board if applicant was unable to appreciate nature of proceedings. Immigration and citizenship –––– Appeals to Federal Court of Appeal and Supreme Court of Canada — Certification of questions by Federal Court Trial Division. Cases considered by John M. Evans J.A.: Baker v. Canada (Minister of Citizenship & Immigration) (1999), 1 Imm. L.R. (3d) 1, [1999] 2 S.C.R. 817, 14 Admin. L.R. (3d) 173, 174 D.L.R. (4th) 193, 1999 CarswellNat 1124, 1999 CarswellNat 1125, 243 N.R. 22, [1999] S.C.J. No. 39 (S.C.C.) — followed Duale v. Canada (Minister of Citizenship & Immigration) (2004), 2004 FC 150, 2004 CarswellNat 198, 2004 CF 150, 2004 CarswellNat 2401, 40 Imm. L.R. (3d) 165, [2004] F.C.J. No. 178 (F.C.) — referred to Khosa v. Canada (Minister of Citizenship & Immigration) (2009), 82 Admin. L.R. (4th) 1, 2009 SCC 12, 2009 CarswellNat 434, 2009 CarswellNat 435, 304 D.L.R. (4th) 1, 77 Imm. L.R. (3d) 1, 385 N.R. 206, (sub nom. Canada (Citizenship & Immigration) v. Khosa) [2009] 1 S.C.R. 339, [2009] S.C.J. No. 12 (S.C.C.) — followed 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 Stumf v. Canada (Minister of Citizenship & Immigration) (2002), 223 F.T.R. 111 (note), 2002 CAF 148, 289 N.R. 165, 2002 CarswellNat 2366, 2002 FCA 148, 2002 CarswellNat 877, [2002] F.C.J. No. 590 (Fed. C.A.) — referred to Hillary v. Canada John M. Evans J.A. 199

Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Generally — referred to s. 71 — considered s. 79 — considered s. 167(2) — considered Rules considered: Immigration Appeal Division Rules, SOR/2002-230 Generally — referred to R. 19(1) — considered

APPEAL by applicant from judgment reported at Hillary v. Canada (Minister of Citizenship & Immigration) (2010), 2010 CarswellNat 3091, 2010 CF 638, 320 D.L.R. (4th) 118, 2010 FC 638, 2010 CarswellNat 1740, 370 F.T.R. 199 (Eng.) (F.C.), dismissing application for judicial review.

Aadil Mangalji, for Appellant Kristina Dragaitis, Nadine Silverman, for Respondent

John M. Evans J.A.: Introduction 1 Wayne Anthony Hillary, a citizen of Jamaica, is in his early 40s. He came to Canada as a permanent resident in 1982 when he was 13 years old and left school after grade 9. He has been ordered deported on the basis of a string of criminal convictions starting in 1987. He has been diagnosed as suffering from schizophrenia, is HIV positive, and has been addicted to crack cocaine. 2 Mr Hillary says that the decision of the Immigration Appeal Division (IAD) of the Immigration and Refugee Board of Canada (Board) to dismiss his appeal against deportation should be reopened because the IAD denied him a fair hearing when it failed to inquire whether he appreciated the nature of the proceeding, in order to determine whether he required the assistance of a designated representative. 3 In my view, the duty of fairness did not oblige the IAD, on the facts of this case, to make this inquiry. The fact that the IAD knew that Mr Hillary was schizophrenic was not in itself sufficient to trigger a duty, on its own initiative, to inquire into the level of his comprehension and, if it found him unable to understand the nature of the proceedings, to advise him that a designated representative would be appointed to assist him. 200 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

4 Mr Hillary appeals from a decision of the Federal Court (2010 FC 638 (F.C.)), in which Justice Russell (Judge) dismissed his application for judicial review seeking to set aside a decision by the IAD, dated Au- gust 7, 2009. In that decision, the IAD dismissed an application by Mr Hillary to reopen the decision of another panel of the IAD, dated Febru- ary 21, 2007, holding that the deportation order was valid and that, in all the circumstances, there was no basis for suspending his removal. 5 The Judge certified the following question under section 79 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA): When evidence is presented that an appellant is suffering from a mental illness, does a duty arise in the IAD to determine in accordance with s. 167(2), whether or not the appellant is capable of understanding the nature of the appeal proceedings? If so, what formal procedural steps must be taken by the Board to meet this duty?

First Deportation Order 6 Mr Hillary was first ordered deported in 1991 on the basis of his criminal convictions. However, in a decision dated May 31, 1993, the IAD stayed the deportation order for five years, subject to certain conditions. 7 In its reasons for decision, the IAD quoted from a report by Dr Bruce Ally, prepared in 1993 while Mr Hillary was serving a sentence of imprisonment. Dr Ally stated that Mr Hillary had “finally received a psychiatric examination which diagnosed schizophrenia.” He went to say that Mr Hillary “needs a supervised treatment setting” because otherwise he was likely to stop taking his medication, and “[a]t such time the disor- dered thinking begins to reappear and he is unable to control or order his thinking and soon finds himself in conflict with the law once again.” For these reasons, Dr Ally concluded, “to release this client on his own would be unconscionable”.

Second deportation order 8 In 1998, shortly after the Board cancelled the 1991 deportation order, Mr Hillary resumed his criminal activities and was convicted of several offences. He was again ordered deported and a removal order was made against him by the Immigration Division of the Board on June 5, 2005. 9 In his appeal against this deportation order Mr Hillary was represented before the IAD by legal counsel, but not the counsel representing him in the present proceeding. In his evidence to the IAD, Mr Hillary Hillary v. Canada John M. Evans J.A. 201

denied committing most of the offences of which he had been convicted, accusing the police, witnesses, and victims of lying at his trials, and blaming prosecuting counsel for coercing him into pleading guilty. On the basis of this testimony, the IAD found that Mr Hillary showed no remorse and was a poor candidate for rehabilitation. 10 The IAD noted that it could not assess the extent to which the medication for HIV and schizophrenia, and the support of community agen- cies, that Mr Hillary had received in Toronto would be jeopardised by his removal, because counsel had submitted no evidence on the availability of treatment facilities in Jamaica. Neither Mr Hillary’s mother, with whom he was living at the time of the hearing, nor his sister who also lived in Toronto, provided evidence on his behalf. 11 The IAD further observed that Dr Ally’s diagnosis of schizophrenia had not been updated, and was then 14 years old. The only other reference in the record to Mr Hillary’s mental health was a 1995 medical report stating that Mr Hillary “has a past history of schizophrenia being treated with Zyprexia 10 mg once daily”. There was no evidence before the IAD on whether this condition was then under control and what treatment, if any, Mr Hillary was receiving. 12 Two years after the IAD had dismissed Mr Hillary’s appeal against the second deportation order, he applied to the IAD to reopen its decision. The IAD refused to reopen.

Statutory provisions 13 The following provisions of IRPA are relevant to the IAD’s refusal to reopen, which is the subject of this appeal. 71. The Immigration Appeal Division, on application by a foreign national who has not left Canada under a removal order, may reopen an appeal if it is satisfied that it failed to observe a principle of natural justice. 167...... (2) If a person who is the subject of proceedings is under 18 years of age or unable, in the opinion of the applicable division, to appreciate the nature of the proceedings, the Division shall designate a person to represent the person. 71. L’étranger qui n’a pas quitté le Canada a` la suite de la mesure de renvoi peut demander la réouverture de l’appel sur preuve de man- quement a` un principe de justice naturelle. 202 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

167. [...] (2) Est commis d’office un représentant a` l’intéressé qui n’a pas dix- huit ans ou n’est pas, selon la section, en mesure de comprendre la nature de la procédure.

Decision of the IAD under review 14 In support of his application requesting the IAD to reopen its dismissal of his appeal against the second deportation order on the ground of breach of a principle of natural justice, Mr Hillary swore an affidavit, in which he said: 10. During the IAD hearing I do verily believe that evidence was submitted clearly stating that I was schizophrenic. Throughout the hearing I was extremely confused as to what was happening. I felt that the proceedings were moving extremely quickly and I could not follow them. 11. Given my mental health illness at the time I do believe that I would have benefited by having a designated representative. I did not know that this was an option at the time, and had I known I would have requested one. 15 In its reasons for dismissing the motion to reopen, the IAD noted that: Mr Hillary had been represented by counsel, who raised no concern over Mr Hillary’s ability to instruct him; no request was made for a designated representative; Mr Hillary was familiar with IAD proceedings as a result of his successful appeal against the first deportation order; he testified and produced evidence designed to establish humanitarian and compassionate grounds for a stay of the second deportation order; nothing in Mr Hillary’s behaviour or demeanour at the hearing indicated that he needed a designated representative; and two years had elapsed between the dismissal of the appeal by the IAD and the request to reopen. 16 In short, the reopening panel concluded, there was no evidence that Mr Hillary had been unable to “tell his story” at his appeal, and no basis for obliging the IAD to raise the possibility of the appointment of a designated representative and to assess his level of comprehension of the nature of the proceeding. 17 The panel also observed shortcomings in the evidence submitted in the appeal. It noted in particular: the absence of updated evidence on Mr Hillary’s schizophrenia and its treatment, and on the availability of treatment facilities in Jamaica; and the failure to adduce evidence from his Hillary v. Canada John M. Evans J.A. 203

mother and sister. However, the panel attributed these to the conduct of the appeal by counsel, not to Mr Hillary’s inability to provide adequate instructions. 18 Accordingly, in refusing to reopen the appeal decision, the panel concluded that any inadequacy in counsel’s handling of the appeal before the IAD was not the result of a breach of a principle of natural justice by the panel. There was no basis for thinking that a designated representative would have instructed counsel to conduct the case differently and “would have provided a different outcome.”

Decision of the Federal Court 19 The Judge identified as follows the issue raised by the application for judicial review. Because it knew that Mr Hillary suffered from schizophrenia, was the panel of the IAD that heard his appeal thereby required by the principles of natural justice to advise him that the appointment of a designated representative was a possibility and to assess whether he understood the nature of the proceedings? 20 The Judge set out (at paras. 26-27), and seems to have accepted counsel for the applicant’s explanation of the functions of a designated representative appointed by the Board in the case of a minor or a person unable to understand the nature of a proceeding. They include: instructing counsel and ensuring that they perform their duties; seeing that the necessary evidence is put before the Board; and, when appropriate, testify- ing. A designated representative may be a family member or friend familiar with Board proceedings, or a lawyer or social worker, for example. 21 The Judge stated that IRPA, subsection 167(2) requires the appointment of a designated representative when the Board is of the opinion that the person concerned does not appreciate the nature of the proceeding. However, he held, there was no authority for the further proposition that, simply on the basis of its knowledge that the person concerned had a mental illness, the Board must advise the person that a designated representative could be appointed, and inquire into his or her understanding of the nature of the proceeding. 22 He went on to say that there might be circumstances in which fairness would require the imposition of such a duty. But that would depend on an examination of the entire context of the particular case, and the Judge found nothing in the context of this case to give rise to a duty to advise and inquire. 204 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

23 However, he agreed with counsel for Mr Hillary that, if the Board had been in breach of a principle of natural justice by failing to advise and inquire, the panel should have ordered the decision reopened if the appointment of a designated representative could, not would, have made a difference to the outcome of the appeal.

Analysis (i) preliminary matters 24 Two preliminary observations are in order. The first concerns the question certified by the Judge: When evidence is presented that an appellant is suffering from a mental illness, does a duty arise in the IAD to determine in accordance with s. 167(2), whether or not the appellant is capable of understanding the nature of the appeal proceedings? If so, what formal procedural steps must be taken by the Board to meet this duty? 25 This question is too general and abstract to admit of a helpful answer. However, I assume that the Judge is in effect asking the following alternative questions. Does a determination of whether the IAD is under a duty to form an opinion of an appellant’s understanding of the nature of the proceedings depend on an analysis of the entire factual context? Or, was the IAD’s knowledge that Mr Hillary was schizophrenic, in and of itself, sufficient to require it to advise him of the possibility that it could appoint a designated representative, and to inquire into his ability to understand the nature of the proceedings? I shall approach the certified question on that basis. 26 Second, the record before us is thin. Thus, for example, it is not apparent from the reasons given by the IAD for dismissing Mr Hillary’s appeal whether it considered the issue of his ability to appreciate the nature of the proceedings. The transcript of the hearing was not before either the IAD when it decided to reject Mr Hillary’s application to reopen the dismissal of his appeal, or the Judge when he heard the application for judicial review. The IAD had no current evidence about Mr Hillary’s mental health and its likely impact on his ability to understand the nature of the proceedings. Neither Mr Hillary nor his counsel at the time indicated to the IAD that he could not understand the nature of the proceedings. Hillary v. Canada John M. Evans J.A. 205

(ii) standard of review and procedural fairness 27 This is an unusual case in that the decision under review is a decision of an administrative tribunal that another panel of the tribunal had not breached a principle of natural justice in dismissing an appeal. Because section 71 of IRPA only permits the IAD to reopen an appeal for breach of a principle of natural justice, the question before us is whether the panel erred when it found that no breach had occurred at the appeal hearing and therefore refused to reopen the decision. 28 It is settled law that administrative decision-makers are not entitled to curial deference on whether they afforded an individual a fair opportunity to participate in a proceeding that culminated in an adverse decision: New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9, [2008] 1 S.C.R. 190 (S.C.C.) at para.129; Khosa v. Canada (Minister of Citizenship & Immigration), 2009 SCC 12, [2009] 1 S.C.R. 339 (S.C.C.) at para. 43. In my opinion, this principle is equally applicable in the present case, where the IAD was required to rule on whether another panel of the same tribunal had breached a principle of natural justice. 29 In the absence of independent fact-finding by either the IAD or the Judge, this Court must answer the certified question by deciding for itself whether the IAD panel that dismissed Mr Hillary’s appeal breached a principle of natural justice by failing to inquire into his understanding of the nature of the appeal proceedings. 30 This does not mean, however, that every exercise by the IAD of a procedural discretion, explicitly or implicitly conferred by IRPA, is subject to de novo judicial review. The question on judicial review is whether, in all the circumstances, the person concerned was deprived of a reasonable opportunity to tell his or her story and, if relevant, to respond to the case against them?

(iii) IRPA, subsection 167(2) 31 Subsection 167(2) requires the IAD to appoint a designated representative when it is of the opinion that the appellant does not appreciate the nature of the proceedings. Read literally, it does not apply to the facts of the present case, because the IAD panel that heard Mr Hillary’s appeal seems to have formed no opinion on whether he appreciated the nature of the proceedings. 32 However, the purpose of this subsection is to provide a reasonable opportunity, through the assistance of a designated representative, for a person unable to appreciate the nature of the proceedings to participate in 206 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

them and to have his or her interests adequately protected. This objective would be frustrated if a panel could avoid subsection 167(2) by simply failing to form an opinion on the person’s capacity, or by refusing to appoint a designated representative when it should have been clear in the circumstances that the person did not understand the nature of the proceedings. 33 Consequently, there must be circumstances in which the IAD is under a duty to form an opinion about a person’s level of comprehension. It must also be open to a court on an application for judicial review to determine whether there was a rational basis for the IAD’s opinion of the person’s capacity to understand the nature of the proceedings. 34 The only question before the Court in the present case is whether the IAD panel that dismissed Mr Hillary’s appeal denied him the benefit of a principle of natural justice. The principle of natural justice relevant to the present case is the right to be represented at an administrative hearing. Without representation, an individual may not able to participate effectively in the decision-making process, especially when facing a more powerful adversary, such as a government department. 35 The right to representation in an administrative proceeding normally means the right of a party to appoint someone, often legal counsel, to conduct the case before the tribunal on their behalf. However, subsection 167(2) of IRPA recognizes that, if their interests are to be adequately protected in a proceeding before the Board, minors, and those unable to appreciate the nature of the proceedings, also require the assistance of a designated representative who is sensitive to the particular needs of the individual concerned and alert to their best interests. 36 Subsection 167(2) provides specific content to the right to be represented at a hearing before the Board. Thus, a failure by the Board to comply with the express and implied procedural duties imposed by its enabling statute may constitute a breach of a principle of natural justice. The factors listed in Baker v. Canada (Minister of Citizenship & Immi- gration), [1999] 2 S.C.R. 817 (S.C.C.) at paras. 21-28, indicate that the content of the duty of fairness in an appeal to the IAD by a permanent resident against removal is high. Particularly important in this regard are: the nature of the individual interest at stake; the broadly judicial nature of the IAD’s decision-making process; and, in the present case, Mr Hil- lary’s particular vulnerability because of his mental illness. Hillary v. Canada John M. Evans J.A. 207

(iv) was the IAD appeal panel in breach of a principle of natural justice? 37 Counsel does not argue that Mr Hillary was denied a fair hearing because the IAD failed to appoint a designated representative to assist him in the appeal process. Such an argument would be untenable. It cannot be inferred from the fact that Mr Hillary is schizophrenic that he did not appreciate the nature of the proceedings. 38 Nor is it said that, on the basis of the documentary evidence before it, and of Mr Hillary’s behaviour at the hearing, including his responses to the questions put to him by counsel, it should have been obvious to the IAD that he did not understand the nature of the proceedings and therefore required the appointment of a designated representative. 39 One can say no more than this: Mr Hillary’s schizophrenia may possibly have impaired his ability to appreciate the nature of the proceedings to such an extent that representation by counsel alone was insufficient to enable him to protect his interests and to participate meaningfully in the process. However, this is not enough to establish that the IAD’s dismissal of Mr Hillary’s appeal was vitiated by a breach of a principle of natural justice. 40 It is always within the discretion of the IAD to raise the issue itself and to inquire into the appellant’s capacity. However, if the IAD makes no such inquiry, the Court should intervene only if satisfied on the basis of an examination of the entire context that the Board’s inaction was unreasonable and fairness required the IAD to be proactive. 41 In my opinion, given the adversarial nature of the IAD’s procedure, it will only be in the most unusual circumstances that a panel is obliged to make inquiries in a case where the appellant is represented by counsel who has not raised the issue of the client’s ability to understand the nature of the proceedings. Such is not the case here. 42 That the IAD does not bear primary responsibility for identifying appellants who are especially vulnerable is indicated by subsection 19(1) of the Immigration Appeal Division Rules, SOR/2002-230 (Rules), which imposes on counsel for the appellant and for the Minister a duty to advise the IAD if they believe that a designated representative should be appointed because of the appellant’s inability to appreciate the nature of the proceedings. 43 Similarly, the Board’s Guideline 8, Guidelines on Procedures with Respect to Vulnerable Persons Appearing Before the IRB, effective date 208 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

December 15, 2006, states (at section 7.3) that counsel is best placed to bring to the Board’s attention the special vulnerability of a person who may require some kind of procedural accommodation. However, the Board may also act on its own initiative (section 7.4). 44 I agree substantially with the reasons given by the Judge for concluding that, on the basis of the record before it, the mere fact that the panel of the IAD that heard his appeal knew that Mr Hillary was schizophrenic was not sufficient to oblige it to inquire into whether to appoint a designated representative under IRPA, subsection 167(2). There was no evidence in the IAD’s record about the current state of his mental health, its treatment, and the extent to which it was likely to impair his understanding of the nature of the proceedings. 45 True, Mr Hillary’s denial of responsibility at the IAD appeal hearing for any of the approximately twenty offences of which he had been convicted was, to say the least, unlikely to assist him in winning his appeal. Nonetheless, it could not be inferred from his testimony that his understanding of the nature of the proceedings was sufficiently impaired to oblige the IAD to make further inquiries into his mental capacity, even though the issue had not been raised by his counsel. 46 Indeed, even the affidavit sworn by Mr Hillary in support of his application for judicial review, two years after the IAD dismissed his appeal, falls short of asserting that he could not instruct counsel and did not appreciate that the appeal gave him an opportunity to explain why he should not be deported. He stated only that he found that the proceedings “were moving extremely quickly” and that he “could not follow them”, and that he was “extremely confused as to what was happening”. He did not attribute his confusion to his mental illness. 47 In most cases, as the Rules and Guideline 8 indicate, the IAD should be able to rely on counsel to raise any concerns on the issue, and to bring into question the appropriateness, in a given case, of the normal assump- tion that appellants understand the nature of Board’s proceedings. 48 Moreover, Mr Hillary was represented by counsel whose competence has not been directly impugned in this proceeding, although, as the IAD noted, the manner in which he handled the appeal may seem questiona- ble. His counsel at the IAD appeal hearing did not suggest that Mr Hil- lary required further assistance. This Court is in no position to second guess counsel’s strategy and to conclude that Mr Hillary was, in effect, unrepresented. Hillary v. Canada K. Sharlow J.A. 209

49 I would add only this. If procedural fairness had required the IAD to inquire on its own initiative whether Mr Hillary appreciated the nature of the proceedings, I agree with Judge’s view that the failure to inquire would have constituted a breach of a principle of natural justice, unless the appointment of a designated representative could, not would, have made no difference to the outcome of the appeal. See also Stumf v. Canada (Minister of Citizenship & Immigration), 2002 FCA 148 (Fed. C.A.)at para. 5; Duale v. Canada (Minister of Citizenship & Immigra- tion), 2004 FC 150 (F.C.) at paras. 20-21.

Conclusions 50 For these reasons, and despite counsel’s able submissions, I would dismiss the appeal and answer the certified question as follows. Question: When evidence is presented that an appellant is suffering from a mental illness, does a duty arise in the IAD to determine in accordance with s. 167(2), whether or not the appellant is capable of understanding the nature of the appeal proceedings? If so, what formal procedural steps must be taken by the Board to meet this duty? Answer: Whether the principles of natural justice require the IAD to initiate inquiries to enable it to form an opinion on whether an appellant who is suffering from a mental illness appreciates the nature of the proceedings depends on an examination of all the circumstances of the case. Since no such duty arose in the present case, it is not necessary to address the hypotheti- cal question of the procedural steps that would have been necessary to discharge the duty.

Marc No¨el J.A.:

I agree.

K. Sharlow J.A.:

I agree. Appeal dismissed. 210 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

[Indexed as: Issasi v. Rosenzweig] Amparo Marlen Rodriguez Issasi, Applicant (Respondent on Appeal) and Kenneth Espinal Rosenzweig, Respondent (Appellant on Appeal) Ontario Court of Appeal Docket: CA C52822 2011 ONCA 302 E.A. Cronk, E.E. Gillese, J. MacFarland JJ.A. Heard: April 12-13, 2011 Judgment: April 18, 2011 Immigration and citizenship –––– Refugee protection — Removal — Proce- dure –––– Minor claimant fled Mexico and came to Canada — Claimant claimed refugee protection on basis that her mother abused her — Claimant’s mother brought application pursuant to Hague Convention on the Civil Aspects of International Child Abduction, 1980 (Hague Convention) — Refugee Protec- tion Division allowed claimant’s claim for refugee protection — Motion judge found claimant was wrongfully retained in Ontario and ordered that claimant be returned to Mexico, pursuant to Hague Convention — Claimant’s father appealed from motion judge’s order — Appeal allowed — Order set aside — Mo- tion judge erred in ordering that claimant be returned to Mexico — There was no conflict between s. 46 of Children’s Law Reform Act regarding Hague Con- vention and s. 115 of Immigration and Refugee Protection Act — In applying Hague Convention, family court must conduct appropriate risk assessment regarding return of child who has been found to be refugee — No meaningful risk assessment was or could have been undertaken in circumstances of case at time motion was heard — Order could not stand — Risk assessment could not be done without viva voce evidence — New Hague Convention hearing to be undertaken. Statutes considered: Children’s Law Reform Act, R.S.O. 1990, c. C.12 s. 46 — considered Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 115 — considered Issasi v. Rosenzweig 211

Treaties considered: Hague Convention on the Civil Aspects of International Child Abduction, 1980, C.T.S. 1983/35; 19 I.L.M. 1501 Generally — referred to

APPEAL from motion judge’s order that refugee claimant be returned to Mexico.

Jeffery Wilson, Chelsea Hooper, for Respondent / Appellant on appeal Philip M. Epstein Q.C., Aaron M. Franks, Daniella Wald, Michael Zalev, for Applicant / Respondent on appeal Lucy McSweeney, Katherine Kavassalis, Caterina E. Tempesta, for Office of the Children’s Lawyer Urszula Kaczmarczyk, Jocelyn Espejo Clarke, for Attorney General of Canada Sean Hanley, for Attorney General of Ontario Angus Grant, for Intervener, Canadian Council for Refugees Lorne Waldman, for Intervener, United Nations High Commissioner for Refugees Jacqueline Swaisland, for Intervener, Canadian Civil Liberties Association

Per curiam:

1 By order dated September 21, 2010 (the Order), Josette Rosenzweig Issasi was found to be wrongfully retained in Ontario and ordered to be returned to Mexico, pursuant to the Hague Convention on the Civil As- pects of International Child Abduction (Hague Convention). The Hague Convention application was brought by Josette’s mother. 2 At the time the Order was made, Josette was 13 years old. She had been living in Toronto, Ontario for approximately 21 months, during which she had made a claim for refugee protection by reason of abuse by her mother. She was found to be a Convention Refugee by the Immigra- tion and Refugee Board of Canada, Refugee Protection Division, on April 27, 2010. 3 Josette was taken back to Mexico on October 15, 2010. 4 Her father appeals the Order. Because of the international and human rights aspects of this appeal, many others have participated, as parties or interveners. 5 The human dimensions of this appeal make its resolution urgent. The legal complexities demand otherwise. In the result, we have decided to release our decision, with only the briefest of reasons, at this time. Full 212 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

reasons for judgment that address the many difficult legal issues that have been raised will follow.

The Question 6 The ultimate question that must be resolved on appeal can be simply stated: did the motion judge err in ordering that Josette be returned to Mexico?

The Answer 7 Yes. 8 The short reason for arriving at this answer is as follows. In our view, there is no conflict between s. 46 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (Hague Convention) and s. 115 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27. Properly interpreted, har- monious effect can be given to both. 9 In applying the Hague Convention, the family court must conduct an appropriate risk assessment regarding the return of a child who has been found to be a refugee. As we will explain in the reasons that will be subsequently provided, no meaningful risk assessment was or could have been undertaken in the circumstances of this case at the time the motion was heard. As a result, the Order cannot stand; this court stands in the shoes of the motion judge. 10 While the record before this court is much more extensive than that which was before the motion judge, in our view, the risk assessment cannot be done without viva voce evidence. Consequently, a new hearing must be conducted.

Relief 11 Accordingly, we would allow the appeal, set aside the Order, and direct that a new Hague Convention hearing be undertaken. The parties have attorned to this court’s jurisdiction. We therefore direct the parties to do everything within their power to co-operate and facilitate Josette’s return to Ontario to participate in the new hearing. 12 We recognize that this leaves open the question of the care and supervision of Josette if she is returned to Ontario before the new Hague Con- vention hearing can be convened. We also recognize that there are uncer- tainties at present regarding those steps necessary to effect Josette’s return to Ontario. If necessary, the issue of Josette’s care and supervision pending the determination of the new Hague Convention hearing shall be Issasi v. Rosenzweig 213

left to the discretion of the Office of the Children’s Lawyer, in consulta- tion with the appellant, the respondent, and those of the other parties as may be advisable. 13 For the sake of clarity and to ensure that there is no misunderstand- ing, we advise that additional relief and directions regarding the new hearing may be ordered when our full reasons for decision are released. Appeal allowed. 214 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

[Indexed as: Diallo c. Canada (Ministre de la S´ecurit´e publique & de la Protection civile)] Mamadou Diallo, Applicant and Minister of Public Safety and Emergency Preparedness, Respondent Federal Court Docket: IMM-5612-08 2010 CF 965, 2010 FC 965 Fran¸cois Lemieux J. Heard: June 10, 2010 Judgment: September 28, 2010 Immigration and citizenship –––– Exclusion and removal — Removal from Canada — Appeals and judicial review — Judicial review — Miscellaneous issues –––– Applicant came to Canada in August 1999 from Mali via United States and claimed Convention refugee status — Applicant’s claim was denied and her appeal and application for judicial review were dismissed — Applicant filed two unsuccessful humanitarian and compassionate applications and two unsuccessful pre-removal risk assessment applications — Applicant refused to sign acknowledgement of receipt of removal order — Subsequently, Malian Embassy adopted rule that required signed declaration from applicant before travel documents would be issued — Applicant had brought motion for stay of removal order, which was heard on urgent basis on Sunday before day applicant was scheduled to depart, despite fact that applicant could not depart without travel documents, and motion was therefore unnecessary — Applicant sought costs of motion for stay — Pursuant to R. 22 of Federal Courts Immigration and Refugee Protection Rules, costs could only be awarded for special reasons — There were special reasons to award costs in this case — Applicant was not responsible for absence of travel documents — When applicant refused to acknowledge receipt of removal order there was no requirement for signed declaration on part of Malian Embassy — Fundamental reason for lack of travel document was change in requirements on part of Malian Embassy, not applicant’s refusal to sign declaration — If applicant’s refusal to sign declaration had been factor in lack of travel document, result would have been different. Cases considered by Fran¸cois Lemieux J.: Ibrahim v. Canada (Minister of Citizenship & Immigration) (2007), 2007 Car- swellNat 4561, 68 Imm. L.R. (3d) 43, 2007 CF 1342, 2007 FC 1342, 2007 CarswellNat 5649 (F.C.) — followed Diallo c. Canada Fran¸cois Lemieux J. 215

Jackson v. Canada (Minister of Public Safety & Emergency Preparedness) (2007), 2007 FC 56, 2007 CarswellNat 139, 2007 CF 56, 308 F.T.R. 1 (Eng.), 2007 CarswellNat 5606, [2007] F.C.J. No. 94 (F.C.) — considered Kozak v. Canada (Minister of Citizenship & Immigration) (2001), 266 N.R. 158, 194 F.T.R. 160 (note), 2001 CarswellNat 31, 12 Imm. L.R. (3d) 123, [2001] F.C.J. No. 9, [2001] A.C.F. No. 9 (Fed. C.A.) — considered Uppal v. Canada (Minister of Citizenship & Immigration) (2005), 2005 FC 1133, 2005 CarswellNat 2437, 2005 CF 1133, 2005 CarswellNat 4845, [2005] F.C.J. No. 1390 (F.C.) — followed Rules considered: Federal Courts Immigration and Refugee Protection Rules, SOR/93-22 R. 22 — considered Federal Courts Rules, SOR/98-106 R. 400(4) — considered Tariffs considered: Federal Courts Rules, SOR/98-106 Tariff B — referred to Tariff B, Table, column III — referred to Tariff B, Table, item 5 — referred to Tariff B, Table, item 6 — referred to

MOTION by applicant for costs of urgent motion for stay of removal order.

Sangar´e Salif, for Applicant Alexandre Tavadian, for Respondent

Fran¸cois Lemieux J.:

[UNREVISED CERTIFIED TRANSLATION]

I. Introduction 1 The only issue raised in the motion of the applicant, Mamadou Diallo, a citizen of Mali (the applicant), is whether he has demonstrated that there are special reasons to award him $5,650 in costs payable by the respondent, the Minister of Public Safety and Emergency Preparedness, under section 22 of the Federal Courts Immigration and Refugee Protec- tion Rules (the Rules), which reads as follows: Costs 22. 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 ap- 216 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

peal under these Rules unless the Court, for special reasons, so orders. Dépens 22. Sauf ordonnance contraire rendue par un juge pour des raisons spéciales, la demande d’autorisation, la demande de contrôle judiciaire ou l’appel introduit en application des présentes règles ne donnent pas lieu a` des dépens. 2 The applicant submits that he is entitled to certain costs because on January 11, 2009, a Sunday, the Minister unnecessarily opposed his motion to stay the enforcement of his removal from Canada to Mali. The removal had been scheduled for the following day, Monday, January 12, 2009, at 7:00 p.m. from the Pierre Elliot Trudeau airport notwithstanding that the Minister’s department had not obtained a travel document from the Embassy of Mali in Ottawa (the Embassy) that was required for him to enter Mali. 3 He maintains that this Court’s urgent hearing on Sunday, January 11, 2009, on his motion for a stay was a waste of time and judicial resources because the next day the Minister had to cancel his removal since the applicant did not have a travel document authorizing him to enter Mali; this also required the Court to convene the parties in Montréal to clarify the circumstances surrounding the cancellation of the removal. 4 The Minister submits that the applicant’s motion for costs should be dismissed on the following grounds: • The applicant did not file a detailed affidavit setting out the facts that could ground a costs order. Simply stated, there are no facts before the Court that would allow it to grant the motion for costs. • The Minister has always acted in good faith in this matter and carried out his duty diligently; there was no bad faith. The affidavit of Mr. Kabongo-Katalay, supervisor of removals at the Canada Border Services Agency (CBSA), shows that the applicant’s removal could not be carried out as planned essentially for two reasons: on the one hand, the applicant did not co-operate with the authorities, refusing to sign the notice to appear and the application for a travel document and, on the other hand, the Embassy changed its procedure for obtaining a travel document at the end of December or early January. • Neither the applicant nor his counsel ever asked the CBSA to defer the removal; instead they filed a stay motion in this Court. Diallo c. Canada Fran¸cois Lemieux J. 217

• The relief claimed is inappropriate for a number of reasons: (1) his motion does not specify how he arrived at such a high amount of costs; (2) he has already commenced an action in damages against the Minister in which he states that he was held illegally in the context of his removal, a legal proceeding that is still pending; (3) awarding costs would bring the administration of justice into dis- repute and encourage similar conduct.

II. Facts 5 The applicant arrived in Canada on August 3, 1999, via the United States from Mali; two weeks later, he claimed refugee status, which was denied on January 21, 2000. His application for leave and judicial review met the same fate. 6 Subsequently, the applicant filed a first application for exemption based on humanitarian and compassionate considerations and a first application for a pre-removal risk assessment (PRRA); both were rejected on January 4, 2005. On November 2, 2006, he filed a second application for exemption based on humanitarian and compassionate considerations, which was supported by the sponsorship of his new common-law spouse, now his wife. That application was rejected on October 23, 2008. The second PRRA application was rejected on December 22, 2008. The parties recognize that the second PRRA application did not trigger an administrative stay as is the case for a first PRRA application. 7 On December 17, 2008, Mr. Diallo and his counsel met with Remov- als Officer Eric Charlebois, who wanted to establish the terms and conditions of his departure. The officer served him with a notice to appear requiring him to attend in person at the P.E. Trudeau International Air- port on January 12, 2009, at 7:00 p.m. for his departure from Canada. He refused to acknowledge receiving the notice. 8 The same day, on December 17, 2008, the CBSA asked the Embassy to issue a travel document for Mr. Diallo; the request complied with the Embassy’s requirements at the time. According to Mr. Kabongo-Katalay, the Embassy should have issued this travel document within three days at most. 9 Since she was not in possession of a travel document for Mr. Diallo, CBSA officer Koen reached the Embassy by telephone on January 5, 2009, and was informed by an officer that the Embassy had not received an application for a travel document for the applicant. The next day, on January 6, 2009, Ms. Koen provided the Embassy with proof that the 218 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

application had been sent in December 2008 and that the Embassy had received it. The Embassy found the lost application but told the officer that, as the result of a new policy, a new requirement had been implemented: concerned persons must sign a statement that they are aware that a removal order has been made against them. 10 The same day, January 6, 2009, the CBSA required Mr. Diallo to attend its office the following day, January 7. Mr. Diallo complied, but the meeting did not take place because of severe weather. He was again summoned for the following day, Thursday January 8. He appeared before Mr. Charlebois with his counsel but refused to sign the required statement. He was arrested on the spot by Officer Charlebois, who stated that he had reasonable grounds to believe that the applicant was a flight risk and would not attend for his removal on January 12, 2009. 11 The applicant’s motion for a stay of removal, filed on January 7, 2009, was heard by the Court on Sunday, January 11, 2009 at 11:00 a.m. During the hearing, the Court expressed its concern a number of times as to whether the Embassy had issued a travel document for Mr. Diallo, and, if not, whether the stay motion was moot and unnecessary because the Minister could not carry out the removal without the travel document. Counsel for the Minister advised the Court that, as far as she knew, the Minister had the necessary travel document. She even tried unsuccessfully at the hearing to verify with the CBSA that this was accurate. 12 Accordingly, the Court heard the parties on the merits. It dismissed the stay motion and was of the view that Mr. Diallo had not demonstrated a serious question or irreparable harm and that the balance of convenience favoured the Minister. Reflecting its apparent concern, the Court also ordered the following: [TRANSLATION] “If a travel document was not issued in a timely manner, the parties will inform the Mon- tr´eal Registry on Monday morning and, in that case, I will issue directions” (Emphasis added.). By coincidence, I was sitting in Montr´eal the week of January 11, 2009. 13 On January 11, 2009, in the afternoon, the Court received a letter from counsel for the applicant informing it that his client’s removal had been cancelled for lack of a travel document. He asked the Court to sum- mon the parties. The letter described the CBSA’s attempt on the morning of January 11, 2009, to persuade Mr. Diallo to sign the statement, which Mr. Diallo again refused to do. 14 Despite an explanatory letter from counsel for the Minister dated Jan- uary 12, 2009, stating that a hearing before the Court was unnecessary in Diallo c. Canada Fran¸cois Lemieux J. 219

the circumstances, the Court summoned the parties for January 14, 2009. After hearing the parties, the following day, January 15, 2009, the Court set aside its decision of January 11, 2009, refusing the stay on the ground that a new fact had arisen — the absence of the travel document. The issue of costs was put over for a subsequent decision following the receipt of written representations. 15 I end this overview by reproducing paragraphs 22 to 28 of Mr. Kabango-Katalay’s affidavit: [TRANSLATION] 22. When the applicant was arrested, his lawyer stated that there was still hope that the applicant would sign the statement after his deten- tion review scheduled for the morning of January 12, 2009, which would permit his removal in accordance with the terms and conditions already established. 23. In fact, it was possible to go to Ottawa to file the statement at the Embassy and obtain a special travel document issued on the spot, thus ensuring that the applicant would be removed on the evening of January 12, 2009, as originally scheduled. 24. The applicant’s plane ticket was not cancelled at any time because removal was still possible. 25. On January 12, 2009, at 10 a.m., I contacted the representative of the Embassy of Mali to update him on the situation. To my great surprise, he told me that no travel document could be issued the same day and that the application would be processed within ten days. 26. The same day, the applicant was released on condition that he co- operate with the CBSA and sign any document required for his removal. 27. On January 13, 2009, the applicant again refused to sign the statement that his Embassy required to issue his travel document. Given that the applicant deliberately breached his release conditions, he was detained again. 28. On January 15, 2009, the applicant finally agreed to sign the statement required by his Embassy. He was therefore released. [Emphasis added.]

III. Analysis - Principles 16 The threshold for “special reasons” in section 22 of the Rules “is high ... each decision must turn upon the particular circumstances before the Court” (see Ibrahim v. Canada (Minister of Citizenship & Immigration) (2007), 2007 CF 1342 (F.C.), at paragraph 8, where Madam Justice Daw- 220 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

son, then of this Court, cited her decision in Uppal v. Canada (Minister of Citizenship & Immigration) (2005), 2005 CF 1133 (F.C.), at paragraph 6: “[e]ach request for costs will turn upon the particular circumstances of the case”). 17 According to this Court’s consistent jurisprudence, special reasons include “situations where one party has acted in a manner that may be characterized as unfair, oppressive, improper or actuated by bad faith. But special reasons can also include conduct that unnecessarily or unrea- sonably prolongs the proceedings” (see Manivannan v. Canada (MCI) at paragraph 51). 18 Specifically, an award of costs under section 22 of the Rules is justified to compensate for wasted costs on a stay motion that was adjourned (see Jackson v. Canada (Minister of Public Safety & Emergency Preparedness) (2007), 2007 CF 56 (F.C.) at paragraphs 2 and 14 and the Federal Court of Appeal decision in Kozak v. Canada (Minister of Citizenship & Immigration) (2001), [2001] A.C.F. No. 9 (Fed. C.A.)) in which Madam Justice Sharlow, at paragraph 16, awarded costs against the Minister of Citizenship and Immigration where “the appellants [were] compelled to waste time and effort in commencing and defending these appeals” (Emphasis added). In that case, the Minister had taken inconsistent positions. 19 An award of costs requires the Court to consider and weigh all the relevant factors. One of these factors (which could cause the Court to refuse costs) is inappropriate behaviour on the part of the applicant (see Ibrahim at paragraph 9 and Uppal at paragraph 7) provided that there is a causal link between the inappropriate behaviour (here, the applicant’s refusal to sign the statement) and the costs requested (here, the costs resulting from the stay motion and its repercussions after the CBSA cancelled Mr. Diallo’s removal) (see Ibrahim, paragraphs 9 and 12). 20 Costs ordered under section 22 of the Rules are calculated in accordance with section 400(4) of the Federal Courts Rules (see Jackson at paragraph 18 and Federal Court Practice by Saunders et al. at page 1167). This section refers to Tariff B.

IV. Conclusion 21 For the following reasons, I believe that an award of costs in favour of the applicant is justified based on the particular circumstances of this case but not in the amount requested. Diallo c. Canada Fran¸cois Lemieux J. 221

22 First, I do not agree with the Minister’s submission that without an affidavit from the applicant the Court did not have any facts before it that could ground the applicant’s motion for costs. The Court knew all the relevant facts: it was at the heart of the proceedings in question including the stay motion records; the oral submissions made on January 11 and 14, 2009; and the Minister’s representations of January 9 and 12, 2009. More important in this case, this Court’s direction on costs simply required written representations by the parties. 23 Second, the stay motion was not necessary. The applicant was not removed to Mali on January 12, 2009, for the simple reason that the Em- bassy of Mali had not issued a travel document for him. I repeat: at the hearing on the stay, the Court repeatedly expressed its concern about this. 24 Third, I gave careful consideration to the Minister’s argument that Mr. Diallo, through his inappropriate behaviour, was the reason why the travel document had not been issued in time. In my view, Mr. Diallo’s refusal to sign the statement required to issue his travel document for his removal is unacceptable behaviour that, under normal circumstances, would disqualify him from being awarded costs under section 22 of the Rules. However, the specific circumstances of this case are unusual and justify an award of costs. To summarize, the evidence before me is not sufficient for me to find that Mr. Diallo contributed to the fact that a travel document was not issued in time. 25 Prior to the hearing on January 11, 2009, the Minister was well aware that the Embassy had not issued the requisite travel document to enforce his removal the following day. I am satisfied that counsel for the Min- ister who argued before me on Sunday, January 11, 2009, had not been informed by her client that there was no travel document. 26 Is Mr. Diallo responsible for the fact that a travel document was not issued in time? I think not. 27 It is true that Mr. Diallo refused to acknowledge the notice to appear on December 17, 2008. However, that did not prevent the CBSA from asking the Embassy for a travel document during the day on December 17, 2008. This request complied with the Embassy’s requirements at the time. According to Exhibit R-2 to Mr. Kabango-Katalay’s affidavit, the Embassy needed [TRANSLATION] “three days to proceed”. 28 After realizing that the Embassy had not yet issued a travel document for Mr. Diallo, the CBSA contacted the Embassy on January 5, 2009, and was told that the Embassy did not have an application file for Mr. 222 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

Diallo, which was found later. It was the following day, on January 6, 2009, that the CBSA was informed of the new requirement for a statement by the concerned party. 29 On January 8, 2009, a Thursday, the applicant refused to sign such a statement for the first time. His departure had been scheduled for the following Monday. The day before, the applicant filed his motion for a stay with a request for an urgent hearing. Counsel for the Minister filed her written representations on Friday, January 9, 2009. 30 Based on the evidence, the second time the applicant refused to sign the statement required for his travel document to be issued was the morning of the day he was to be removed. The Minister argued that if Mr. Diallo had signed the statement the Embassy could have issued the travel document, but Mr. Kabongo-Katalay told us in his affidavit that he contacted the Embassy on January 12, 2009, at 10 a.m. to inform them of the situation but [TRANSLATION] “to my great surprise ... he told me that no travel document could be issued the same day ...” 31 In my view, the evidence before me establishes that the fundamental raison why a travel document was not issued in time stems from the Em- bassy of Mali’s new requirement and that the refusal to sign the statement on January 8, 2009, was not a sufficient contributing factor to deny him the costs incurred for an unnecessary proceeding (the hearing of the stay motion), which could have been avoided if the Court had been advised that the CBSA did not have in its possession a document that was necessary for the removal. 32 The Minister’s concern that awarding costs in this case would constitute a precedent that is prejudicial to the proper administration of justice is without merit. The circumstances of this case are unusual. The applicant’s inappropriate behaviour was not a factor that contributed to his non-removal. If it had been, this Court’s decision would have been different. 33 However, the amount of $5,650 requested for costs is not acceptable for the following reasons: A. Some of the costs have no connection to the Court. That is the case for the administrative attendances of December 17, 2008, and January 7 and 8, 2009. B. The fees for the preparation of the motion record and the hearings on January 11 and 15, 2009, are not in accordance with Tariff B, items 5 and 6. Diallo c. Canada Fran¸cois Lemieux J. 223

C. If he is seeking solicitor-client costs (which is possible according to the jurisprudence), I have no evidence before me to justify the amounts indicated. 34 Section 400(4) authorizes this Court to award a lump sum in lieu of, or in addition to, any assessed costs. Taking into consideration the items in Tariff B, the number of units in Column III for assessable services, the appearance on January 14, 2009, as well as the submissions on costs, I award costs to the applicant under section 22 of the Rules, which I fix at $1,500 payable forthwith.

Order THE COURT ORDERS that the applicant is entitled to costs under section 22 of the Federal Court’s immigration rules, which I fix at $1,500 payable forthwith by the respondent. Motion granted. 224 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

[Indexed as: Becerra Vazquez c. Canada (Ministre de la Citoyennet´e & de l’Immigration)] Victor Adrian Becerra Vazquez, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-2380-10 2011 CF 9, 2011 FC 9 Yvon Pinard J. Heard: December 2, 2010 Judgment: January 6, 2011 Immigration and citizenship –––– Refugee protection — Credibility –––– Ap- plicant was citizen of Mexico who worked as journalist — Applicant alleged that after going to meeting undercover as journalist, he was victim of attempted murder — Applicant reported incident to police, who did not help him, after which he had serious doubts about effectiveness of police — Applicant came to Canada — Applicant was found by Immigration and Refugee Board (IRB) not to be Convention refugee or person in need of protection — Applicant brought application for judicial review of decision of IRB — Application granted — IRB’s decision was based entirely on applicant’s lack of credibility — Review of transcript demonstrated that applicant did display knowledge of difference between editorial copy and advertising copy, contrary to conclusions of IRB — It was unreasonable of IRB to place so much emphasis on job title recorded by officer in point of entry notes; IRB failed to consider applicant’s explanation — IRB’s logic was circular in that it held that applicant’s employment letter was fraudulent because applicant lacked credibility, and that applicant lacked credibility because he had no evidence once letter was discredited. Cases considered by Yvon Pinard J.: Bao v. Canada (Minister of Citizenship & Immigration) (2006), 2006 FC 301, 2006 CarswellNat 597, 2006 CarswellNat 1873, 2006 CF 301, [2003] F.C.J. No. 411 (F.C.) — considered Camilo v. Canada (Minister of Citizenship & Immigration) (2009), 2009 FC 1046, 2009 CarswellNat 4822, 2009 CF 1046, 2009 CarswellNat 3194 (F.C.) — considered Gasparyan v. Canada (Minister of Citizenship & Immigration) (2003), 2003 CF 863, 2003 CarswellNat 5121, 2003 FC 863, 2003 CarswellNat 2140, [2003] F.C.J. No. 1103 (F.C.) — considered Becerra Vazquez c. Canada 225

Hamid v. Canada (Minister of Employment & Immigration) (1995), 1995 Car- swellNat 2573, [1995] F.C.J. No. 1293, [1995] A.C.F. No. 1293 (Fed. T.D.) — considered Kaur v. Canada (Minister of Citizenship & Immigration) (2006), 2006 Car- swellNat 2860, 2006 FC 1120 (F.C.) — considered Khosa v. Canada (Minister of Citizenship & Immigration) (2009), 82 Admin. L.R. (4th) 1, 2009 SCC 12, 2009 CarswellNat 434, 2009 CarswellNat 435, 304 D.L.R. (4th) 1, 77 Imm. L.R. (3d) 1, 385 N.R. 206, (sub nom. Canada (Citizenship & Immigration) v. Khosa) [2009] 1 S.C.R. 339, [2009] S.C.J. No. 12 (S.C.C.) — followed Li v. Canada (Minister of Citizenship & Immigration) (2002), 2002 FCT 358, 2002 CarswellNat 658, [2002] F.C.J. No. 470 (Fed. T.D.) — considered New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1, 69 Admin. L.R. (4th) 1, 69 Imm. L.R. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) [2008] 1 S.C.R. 190, 844 A.P.R. 1, (sub nom. Dunsmuir v. New Brunswick) 2008 C.L.L.C. 220-020, D.T.E. 2008T-223, 329 N.B.R. (2d) 1, (sub nom. Dunsmuir v. New Brunswick) 170 L.A.C. (4th) 1, (sub nom. Dunsmuir v. New Brunswick) 291 D.L.R. (4th) 577, 2008 CarswellNB 124, 2008 CarswellNB 125, 2008 SCC 9, 64 C.C.E.L. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) 95 L.C.R. 65, [2008] S.C.J. No. 9, [2008] A.C.S. No. 9 (S.C.C.) — followed Nijjer v. Canada (Minister of Citizenship & Immigration) (2009), 2009 CF 1259, 2009 CarswellNat 5831, 2009 CarswellNat 4637, 2009 FC 1259, [2009] F.C.J. No. 1696 (F.C.) — followed Oduro v. Canada (Minister of Employment & Immigration) (1993), 1993 Car- swellNat 471, 66 F.T.R. 106, [1993] F.C.J. No. 560 (Fed. T.D.) — considered Sukhu v. Canada (Minister of Citizenship & Immigration) (2008), 2008 Car- swellNat 835, 2008 FC 427, 2008 CarswellNat 3103, 2008 CF 427, [2008] F.C.J. No. 515 (F.C.) — followed Valtchev v. Canada (Minister of Citizenship & Immigration) (2001), 2001 Car- swellNat 1534, 2001 FCT 776, 208 F.T.R. 267, 2001 CFPI 776, [2001] F.C.J. No. 1131 (Fed. T.D.) — considered Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 72(1) — pursuant to s. 96 — considered s. 97 — considered

APPLICATION for judicial review of decision of Immigration and Refugee Board that applicant was not Convention refugee or person in need of protection. 226 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

Me Stephen Fogarty, for Applicant Ms Sara Gauthier (student-at-law), Me Evan Liosis, for Respondent

Yvon Pinard J.:

1 This is an application for judicial review of a decision of a member of the Immigration and Refugee Board (the “Board”), pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001 c. 27, (the “Act”) by Victor Adrian Becerra Vazquez (the “applicant”). The Board determined that the applicant was neither a Convention refugee nor a person in need of protection under sections 96 and 97 of the Act...... 2 The applicant is a citizen of Mexico, from the city of Leon, Guana- juato. The basis of his refugee claim is that he allegedly worked for a newspaper, “A.M.”, whose owner was engaged in property speculation on land which he owned to the south of Leon. The Secretary-General of Guanajuato wanted to develop land to the north of the city instead, and a dispute between them was ongoing. The applicant, who alleges that he was a copy editor and not a reporter, was sent undercover to a meeting involving the Secretary-General in order to surreptitiously record the proceedings. He alleges that he was discovered and told that he would regret it if he were to allow the information to be published. The newspaper subsequently published the story, and the newspaper owner also reg- istered a complaint against the Secretary-General with the Mexican Human Rights Commission. 3 The applicant alleges that after these incidents, he was the victim of an attempted murder, in which two shots were fired at his car while he was inside it. He returned to his place of work, where he did not tell his colleagues about the incident but chose to phone the police. When the promised police patrol did not materialize, the applicant allegedly decided not to pursue the issue further because he had serious doubts about the effectiveness of the police force. 4 The applicant left the country and came to Canada. He alleges that he spoke little English at the time. Upon his arrival, he was questioned by an immigration officer without the aid of an interpreter. The officer recorded in the Point of Entry (“POE”) notes that the applicant was a reporter. 5 The applicant was represented at his hearing by his former counsel. In his testimony, he explained that he had not only been working full-time Becerra Vazquez c. Canada Yvon Pinard J. 227

at the newspaper, but had also been completing a university degree in his remaining time...... 6 The Board’s decision was based entirely on a lack of credibility. This conclusion was in turn based on five main findings. 7 The first credibility issue was the applicant’s testimony regarding his job title and duties at the newspaper. The Board states that the applicant testified that his role was “surveiller le contenu des editoriaux”.´ The Board questioned him on this subject and determined that the applicant did not know what an editorial article was, in that he stated that it was simply the portion of the newspaper where journalists wrote articles, which did not accord with the definition of an editorial in Le Petit Rob- ert. The Board found that this demonstrated a lack of knowledge of a business in which he had supposedly been engaged for five years. 8 The second credibility issue was the discrepancy between the POE notes and the applicant’s testimony regarding his job. The Board noted that the POE notes indicate that the applicant had declared himself to be a reporter who had published articles against the government. The Board noted that in his testimony, the applicant indicated that he was not a reporter and had merely stated that he had difficulties because of an article he had been involved with. The Board considered the applicant’s explanation that most laymen equate working for a newspaper with being a reporter, but did not believe the applicant on this point. The Board found that as the applicant had stated that he spoke English at the time the POE notes were made, he must have declared himself to be a reporter. The Board relied partly on this point to conclude that the applicant was lying about his employment. 9 The third credibility issue was the letter submitted from A.M. stating that the applicant had worked for them for five years. The Board took issue with the late submission of this letter, noting that the Personal In- formation Form (“PIF”) clearly states that all supporting documentation should be immediately submitted, and noting that the applicant had thereby chosen not to submit the only document corroborating the story that he worked for a newspaper. The Board rejected the applicant’s explanation that an interpreter at his then-lawyer’s office had told him to submit the letter just before the hearing. The Board also determined that fraudulent documents are easily obtained in Mexico, and thereby ac- corded no probative value to the letter. 228 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

10 Fourthly, the Board did not believe the applicant’s statements to the effect that he had been pursuing a university degree while working full- time at the newspaper. The Board noted the applicant’s testimony that he worked 40 hours a week for A.M. while taking five courses per semester over the course of five years. The Board did not believe that this was likely. 11 The final credibility issue was the applicant’s conduct following the alleged murder attempt. The Board noted that there was no corroborating evidence for this story. The Board questioned why the applicant had not immediately informed his employer of the incident, and why he called the police at all if he supposedly had no faith in them. The Board did not believe the applicant’s explanation that he was in shock and could not think of what to do other than phone the police. 12 The Board thereby concluded that the applicant had invented the entire story...... 13 The main issue in this application is whether the Board’s conclusions regarding credibility are unreasonable. 14 The standard of review applicable to a Board’s finding on credibility is reasonableness, according to Nijjer v. Canada (Minister of Citizenship & Immigration), 2009 FC 1259 (F.C.), paragraph 12, and Sukhu v. Canada (Minister of Citizenship & Immigration), 2008 FC 427 (F.C.), paragraph 15. Therefore, the Board’s conclusion must fall within the “range of possible, acceptable outcomes which are defensible in respect of the facts and the law” (New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190 (S.C.C.), at paragraph 47). 15 The applicant also raised an issue with respect to procedural fairness, to which the standard of correctness applies (Khosa v. Canada (Minister of Citizenship & Immigration), [2009] 1 S.C.R. 339 (S.C.C.), at paragraph 43)...... 16 Dealing with the question of credibility:

i) The meaning of “´editorial” 17 The applicant protests the Board’s reliance on the discussion of the word “´editorial”, and argues that the Board’s conclusions in this regard were unreasonable. The applicant contends that the Board’s line of reasoning demonstrates the Board’s own lack of knowledge, not the appli- Becerra Vazquez c. Canada Yvon Pinard J. 229

cant’s. The applicant notes that what he was explaining was the difference between “advertising copy” and “editorial copy” in a newspaper, the latter being any copy written by the newspaper’s writers, and argues that at no point did he say that he wrote opinion-style “editorials” or supervised others doing the same. The applicant argues that his testimony shows that his role was to supervise “editorial copy”, that is, the portion of the newspaper written by its employees. The applicant notes that the transcript shows that he testified regarding the “contenu editorial”,´ being “la partie du journal o`u on ecrit”,´ while the Board fixated on “un editorial”.´ 18 The respondent disagrees with this characterization of the discussion, reiterating the Board’s conclusion that the applicant displayed a lack of knowledge of his own supposed business. However, I agree with the applicant that the Board’s conclusion in this regard is unreasonable. I find that the transcript, at pages 134 to 140, demonstrates that the applicant was explaining the difference between “editorial copy” and “advertising copy”, and did demonstrate knowledge of this difference.

ii) Point of entry notes labeling the applicant a “reporter” 19 The applicant submits that the Board had no proper justification to doubt the applicant’s credibility on this issue, and argues that whether the applicant’s job title was thought by others to be “reporter” or to fill reporter-like functions is irrelevant to the determination of this claim. The applicant testified that what he said to the officer was that he had fled “`a cause d’un probl`eme que j’avais eu a` cause d’un reportage”, which could have engendered the confusion. The applicant also argues that he sufficiently explained this discrepancy, noting that he did not speak much En- glish at the time the POE notes were taken, that the officer did not speak much Spanish, that no interpreter was present, and that people often assume newspaper workers are reporters. The applicant relies on Kaur v. Canada (Minister of Citizenship & Immigration), 2006 FC 1120 (F.C.), for the proposition that POE notes must be looked at with caution, especially when the applicant offers a reasonable explanation for their content, and also relies on Valtchev v. Canada (Minister of Citizenship & Immigration), 2001 FCT 776 (Fed. T.D.), at paragraph 16, for the proposition that it is unreasonable to doubt the applicant’s credibility simply because he could not explain the reason for the officer’s decision to label him a reporter, as he can’t be expected to know the officer’s mind. 230 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

20 The respondent contends that Kaur is distinguishable from the present case, as in that case the applicant had objected to the POE notes in her PIF, and the notes supported the testimony rather than the Board’s findings, whereas here the Board’s findings faithfully represented the content of the notes. The respondent also questions the applicant’s statement regarding his English abilities, noting that the officer must have relied on past experience to assess the applicant’s abilities, and would have asked for an interpreter if one was needed. The respondent notes that the applicant did not object to the introduction of the POE notes. 21 Whether or not Kaur is distinguishable from the present case, I find that it was unreasonable of the Board to place so much emphasis on the job title recorded by the officer in the POE notes. In my opinion the question was not one of the applicant’s general English skills, but one of a specific job title, which would involve a more nuanced understanding of English, whether or not the applicant needed an interpreter for the re- mainder of the interview. The applicant testified that most people will equate a newspaper employee with a reporter, and I find that it was unreasonable of the tribunal to reject the applicant’s explanation, considering that his problems arose when he was acting as a reporter in recording the Secretary-General’s meeting. The tribunal did not consider this explanation at all.

iii) Letter from A.M. regarding the applicant’s employment 22 The tribunal gave no probative value to the letter which was the only corroborative evidence of the applicant’s employment, determining that the applicant was not credible and fraudulent documents are easily obtained in Mexico. The applicant argues that the tribunal acted on mere suspicion and speculation, and did not make any effort to confirm the truth of the letter’s contents, which would have been easy to do considering that the letter-head included all of the contact information for A.M. The applicant relies on Bao v. Canada (Minister of Citizenship & Immi- gration), 2006 FC 301 (F.C.), where the applicant’s claim was rejected because his PIP was very similar to those of several other would-be refugees, and Justice Douglas Campbell found that the Board committed a reviewable error in basing its decision on suspicions rather than providing concrete reasons for rejecting the PIF. 23 The applicant also argues that the Board should not have accepted the late submission of the letter and then assigned it no weight because of its lateness, especially when the applicant and his counsel took responsibil- Becerra Vazquez c. Canada Yvon Pinard J. 231

ity for the late submission. However, I agree with the respondent that admissibility and weight are separate issues for the Board to decide. 24 The respondent argues that it was insufficient for the applicant to merely file the letter, affirm that it was genuine, and expect this to offset the concerns about his credibility (citing Hamid v. Canada (Minister of Employment & Immigration), [1995] F.C.J. No. 1293 (Fed. T.D.)). The respondent also relies on Gasparyan v. Canada (Minister of Citizenship & Immigration), 2003 FC 863 (F.C.), paragraph 7, for the proposition that the Board is entitled to rely on its knowledge of the ease with which fraudulent documents can be obtained in Mexico in assigning weight to this letter. 25 However, I am persuaded by the applicant’s argument that this is circular logic on the Board’s part. The evidence relied upon to discredit the letter was the applicant’s lack of credibility and therefore the likelihood that he had obtained the letter fraudulently, and the applicant was also found not to be credible because he had no corroborative evidence once the letter was discredited. I find this to be unreasonable logic on the Board’s part, especially where the information in the letter was easily verifiable.

iv) Applicant’s university education 26 The applicant submits that the Board’s line of reasoning regarding his ability to work and study full-time was entirely speculative and without foundation. The applicant notes that adverse findings on credibility must have concrete evidentiary foundations, and not be built on mere speculation (Camilo v. Canada (Minister of Citizenship & Immigration), 2009 FC 1046 (F.C.), paragraph 16). The applicant contends that the tribunal has no expertise on the capabilities of the applicant, and notes that his testimony established that his grades suffered because of his heavy schedule. The applicant notes that many Canadian students work while studying full-time, and that there is no reason to believe that it is impos- sible for a Mexican student to do the same. The applicant refutes the Board’s conclusion that the applicant “n’aurait pas eu le temps”, noting that if the applicant worked 40 hours a week and slept 7 hours a night, that still left him with over 11 hours a day in which to study. 27 The respondent submits that the Board was entitled to assess the applicant’s allegations in light of its own understanding of human behaviour Li v. Canada (Minister of Citizenship & Immigration), [2002] F.C.J. No. 470 (Fed. T.D.), paragraph 9). While I question the Board’s 232 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

conclusion on this point, there is nothing to show that this finding of implausibility was in itself unreasonable. In combination with the Board’s other credibility findings, however, the lack of evidence in support of the Board’s finding (other than the Board’s views on human behaviour) is troublesome.

v) Conduct of the applicant after the murder attempt 28 The applicant argues that it was unreasonable of the Board to make an adverse credibility finding simply because the applicant called the police, in whom he had little faith, after a stressful moment, namely the attempted murder. The applicant argues that it is not unreasonable for an individual under shock and stress to do things which in hindsight seem illogical to a third party. 29 The respondent submits that the Board had the advantage of seeing and hearing the applicant, and that based on the evidence before it the Board concluded that the applicant’s alleged conduct following the at- tack was implausible. The respondent argues that even if the evidence could conceivably have led to a different conclusion, this Court cannot interfere unless an overriding error was made (Oduro v. Canada (Minister of Employment & Immigration), [1993] F.C.J. No. 560 (Fed. T.D.), paragraphs 11 and 12). 30 Again, on this point I agree with the respondent that there is no reviewable error made by the Board on this particular conclusion. How- ever, the other three errors that I have identified in the Board’s credibility findings persuade me that the Board’s overall conclusion regarding the applicant’s credibility was tainted. 31 Given my above disposition of the issue of credibility, which is determinative of the application for judicial review, it will not be necessary to deal with the other issue concerning procedural fairness...... 32 For the above-mentioned reasons, the application for judicial review is allowed, the Board’s decision is set aside and the matter is sent back to the Board for reconsideration by a differently constituted panel. I agree with the parties that this is not a matter for certification.

Judgment The application for judicial review is allowed. The decision of the Immigration and Refugee Board (the “Board”) rendered on April 12, Becerra Vazquez c. Canada Yvon Pinard J. 233

2010 is set aside and the matter is sent back to a differently constituted Board for reconsideration. Application granted. 234 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

[Indexed as: Premaratne v. Canada (Minister of Citizenship & Immigration)] Isuruni Mercy Eranga Premaratne, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-874-10 2011 FC 30 Judith A. Snider J. Heard: January 11, 2011 Judgment: January 12, 2011 Immigration and citizenship –––– Admission — Temporary entry (visi- tors) — Students –––– Applicant was 28-year-old citizen of Sri Lanka — Appli- cant applied for study permit, or student visa, to allow her to come to Canada to attend eight-month certificate program at college — Visa officer refused applicant’s application — Applicant brought application for judicial review — Appli- cation granted — Minister conceded that officer erred by failing to consider financial position of uncle in Canada and evidence that demonstrated that he could pay for applicant’s studies — Minister submitted that decision should be quashed and that matter should be remitted to different officer for redetermination — Additional relief that applicant sought was not ordered, with exception that applicant would not be obliged to pay additional fee for new application for 2011 academic year. Cases considered by Judith A. Snider J.: Rafuse v. Canada (Pension Appeals Board) (2002), 2002 FCA 31, 286 N.R. 385, 2002 CarswellNat 190, 2002 C.E.B. & P.G.R. 8400 (note), 222 F.T.R. 160 (note), [2002] F.C.J. No. 91 (Fed. C.A.) — referred to Wen v. Canada (Minister of Citizenship & Immigration) (2002), 2002 Car- swellNat 4431, 25 Imm. L.R. (3d) 316, 2002 FCT 1262, 2002 CarswellNat 3544 (Fed. T.D.) — referred to Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Generally — referred to Privacy Act, R.S.C. 1985, c. P-21 Generally — referred to Premaratne v. Canada Judith A. Snider J. 235

Rules considered: Federal Courts Immigration and Refugee Protection Rules, SOR/93-22 R. 22 — referred to

APPLICATION for judicial review of officer’s decision rejecting applicant’s application for student visa.

T. Viresh Fernando, for Applicant Kareena R. Wilding, for Respondent

Judith A. Snider J.:

1 The Applicant is a 28-year old citizen of Sri Lanka. By way of written application dated November 17, 2009, the Applicant applied for a study permit (also referred to as a student visa) to allow her to come to Canada to attend an eight-month certificate program in International Business Management at George Brown College in Toronto, Ontario. In a decision dated November 26, 2009, a visa officer (Officer) refused her application. The Applicant seeks judicial review of this decision. 2 The Officer’s reasons were set out in the Computer Assisted Immi- gration Processing System (CAIPS) notes, as follows: I am not satisfied with PA’s personal establishment if uncle in CDA is required to pay for her studies. Also not clear as to why PA waited til this stage of her career to seek foreign studies. Not satisfied that she is a genuine student but rather using the process to gain access to CDA. 3 The Respondent concedes that the Officer erred by failing to consider the financial position of the uncle in Canada and the evidence submitted by the Applicant that appears to demonstrate that he could pay for her studies. On the basis of this conceded error, the Respondent submits that this Court should order that the decision of the Officer be quashed and the matter remitted to a different Officer for re-determination. 4 The Applicant is not content with this suggested resolution. In addition to an order quashing the decision, the Applicant seeks the following relief: 1. An order directing the Respondent to reconsider the Applicant’s application for a student visa within 30 days of order; 2. An order that, if the Respondent has any concerns with respect to the Applicant’s application, the Applicant be apprised of those 236 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

specific concerns in writing, within three days, and the Respon- dent provide the Applicant 15 days in which to respond in writing; 3. An order that the Applicant not be charged additional fees; 4. An order that the Respondent shall adopt non-arbitrary and unbiased criteria for evaluation of student visa; 5. An order that the Respondent adopt procedures to ensure that the decision making process is free of ethnic and religious bias and those procedures be made available forthwith to the Applicant and publicized in Sri Lanka; 6. An order that the Respondent shall not permit the opinions or advice of locally engaged staff, with respect to the authenticity of a visa application, be relied upon by any designated decision maker; 7. An order that all visa applications be made only by properly trained and qualified Canadian visa officers; 8. An order prohibiting the Respondent from defacing passports of persons refused a visa; and 9. An order for costs. 5 In the context of judicial review of immigration matters, the usual remedy granted to a successful applicant is an order referring the matter to a different decision-maker for redetermination. In exceptional circumstances, the Court may provide special directions (see, for example, Rafuse v. Canada (Pension Appeals Board), 2002 FCA 31, 222 F.T.R. 160 (note) (Fed. C.A.) at para 14). However, in the circumstances of this case, I am not prepared to make any of the “extra” orders requested by the Applicant, with the exception of request #3 (no additional fees). 6 Further, I am not satisfied that the usual remedy of remitting the matter to a different visa officer for re-determination is possible. The original application was for a study permit for the explicit purpose of pursuing a specific program of studies at George Brown College from January 2010 to August 2010. The acceptance from George Brown College referred only to this one program. The Applicant concedes that she must submit a new application for a study permit to commence her studies in May or September 2011. Thus, in practical terms, the entire process will take place afresh. From an operational perspective, the Respondent may choose to assign the same application number to a re-application; I leave that decision to the Respondent. Further, as conceded by the Respondent, no further fees should be assessed for the re-application, if made. Premaratne v. Canada Judith A. Snider J. 237

7 With respect to the relief requested by the Applicant, I begin by ob- serving that there is a strong presumption that visa officers will follow the law as set out in the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) and in the applicable jurisprudence. Secondly, I note that this is an individual case and not a class application, or an application that is representative of a large number of related judicial review applications. While the Applicant’s counsel strongly asserts that there are other instances of the errors conceded on this file, such evidence is anec- dotal and not properly before me. 8 On the various orders sought by the Applicant in this case, I express the following views: 1. The Applicant wants me to provide direction to the Respondent that the concerns of a reviewing visa officer be communicated to the Applicant with a defined period for response. It is trite law that an applicant bears the burden of providing the visa officer with the documentation necessary to support the application. As acknowledged by the Respondent, extrinsic evidence relied on by an officer must normally be disclosed to an applicant. However, aside from such obligation to disclose, it is well established that a visa officer need not provide a “running score” to an applicant (see, for example, Wen v. Canada (Minister of Citizenship & Immigration), 2002 FCT 1262, 25 Imm. L.R. (3d) 316 (Fed. T.D.)). Not only would the requested order be an improper direction, it may well be contrary to the existing jurisprudence. 2. The timing of the processing of the new application is not something that ought to be the subject of arbitrary Court-imposed time- lines. This is particularly true given that the Applicant acknowledges that she must re-apply to George Brown College. I assume that the Respondent would respond to a completed student visa application within a reasonable time. With respect to timing of a decision, I observe that the original decision was made nine days after the application was submitted, indicating that visa officers are aware of the time-sensitive nature of student visa applications. It is not necessary for this Court to impose a time limit. 3. In the circumstances, I am prepared to order that the Applicant not be obliged to pay an additional fee for the new application, if made. 4. I am certainly not prepared to direct that, “the Respondent shall adopt non-arbitrary and unbiased criteria for evaluation of student 238 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

visa” or that, “the Respondent adopt procedures to ensure that the decision making process is free of ethnic and religious bias and those procedures be made available forthwith to the Applicant and publicized in Sri Lanka”. It is presumed that the visa officer who decides this matter will make a determination in an impartial, unbiased manner having regard to all of the evidence, the Respon- dent’s Guidelines and the existing jurisprudence. That is simply a matter of law and common sense; no order is required or appropriate. Should the new officer fail to do so, the Applicant may bring an application for judicial review to challenge the decision. 5. With respect to the training and qualifications of visa officers, there is absolutely no evidence before me that indicates that the use of untrained or unqualified visa officers is taking place. 6. I am not persuaded that the Officer who signed the decision relied on, or was unduly influenced by, “the opinions or advice of locally engaged staff”. At an operational level, it is not unusual — or wrong in law — for visa officers to use clerical, secretarial or administrative staff to assist in the processing of applications. Un- less there is persuasive evidence that such staff actually made or influenced the decision, there is no reviewable error. In this case, it appears that staff members were involved in some way. How- ever, the use of such staff does not mean that the Officer did not assess the evidence herself or make the final decision. Accord- ingly, there is no need to provide the order sought by the Applicant. 7. There are no “special reasons” to allow an order of costs to be awarded to the Applicant pursuant to rule 22 of the Immigration and Refugee Protection Rules, SOR/93-22. 9 Finally, the Applicant requests that I stop the Respondent’s practice of “defacing” passports when applications for student visas are refused in Sri Lanka. In a letter to the Court dated January 6, 2011, the Applicant expands on this concern: One of the most important issues this application places before [the] Honourable Court is the everyday practice of defacing foreign passports by the visa officer and her colleagues which the Respondent Minister and the Canada Border Services Agency has [acknowledged] is not authorized by statute or regulation. Indeed this practice is a serious criminal offence in the Applicant’s country of residence and continues to damage Canada’s reputation. Premaratne v. Canada Judith A. Snider J. 239

10 I am not prepared to provide any such direction or order. In oral submissions, counsel for the Applicant retracted his “criminal offence” accusation. Even without the criminal allegation, I have absolutely no record before me that would support the claims made by the Applicant in this regard. For example, the Applicant did not provide the Court with a copy of the pages from the Applicant’s passport that had been allegedly “defaced”. 11 Moreover, the Applicant’s oral argument that this “defacing” practice was contrary to the Privacy Act, R.S.C. 1985, c. P-21 was not put forward in the application for judicial review and is, thus, without any evidentiary foundation. 12 On a final note, I have serious concerns with respect to certain of the Applicant’s allegations. The Applicant claims that the Officer “committed perjury by insisting that she indeed has lawful authority to deface passports”. A review of the record (most of which is not properly before me, in any event) discloses no such insistence by the Officer. The Appli- cant has paraphrased and mischaracterized the statements of the Officer. Such serious allegations that could reflect on the reputation of the Officer should not be made except with the clearest evidentiary record to substantiate them. In this case, no such record exists. Indeed, having reviewed the transcript extracts of the Officer’s cross-examination relied on by the Applicant (in a different case), I am satisfied that they demonstrate that the Officer tried to answer all questions posed to her professionally and honestly. The accusation of perjury is completely without foundation. 13 Along with the claim of “perjury”, the Applicant’s record also con- tains unsubstantiated accusations of “contempt of Court” and “criminal activity”. Even though the Applicant’s counsel appeared to resile somewhat from these assertions during oral submissions, such unwarranted and unsubstantiated attacks on the integrity of the Respondent and his officers could justify an award of costs against the Applicant’s counsel personally. Since no such costs were requested, none will be awarded. 14 In sum, this judicial review will be allowed with an order that, if the Applicant chooses to re-apply for a student visa, the matter should be referred to a different visa officer for determination. Further, unless the original fees have been refunded to the Applicant, she should not be obliged to pay any additional fees for her next application, if made. 15 In my view, this is a case that stands on its facts and is not an appropriate case for the certification of a question. 240 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

Judgment THIS COURT ORDERS AND ADJUDGES that: 1. the decision of the Officer dated November 26, 2009 is quashed; 2. in the event that the Applicant re-applies for a temporary resident student visa: a. the re-application is to be referred to a different visa officer for determination; b. any documents from the original application, to the extent that they are relevant to the re-application, are to be considered to form part of the re-application record; and c. no fees are to be assessed for the consideration of this next application. 3. no question of general importance is certified. Application granted. Persaud v. Canada 241

[Indexed as: Persaud v. Canada (Minister of Citizenship & Immigration)] Nareeza Persaud, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-2136-10 2011 FC 31 Roger T. Hughes J. Heard: January 11, 2011 Judgment: January 12, 2011 Immigration and citizenship –––– Admission — Appeals and judicial review — Appeal division — Powers and duties of board –––– Applicant citizen of Guyana married Canadian citizen in Guyana — Applicant’s husband returned to Canada and sponsored application for applicant to come to Canada as member of family class — Applicant entered Canada and was interviewed — Purpose of interview had not been previously disclosed to applicant, she did not have lawyer present — Member of Immigration Division made determination that applicant was inadmissible because she entered into non-genuine marriage for sole purpose of obtaining residency — Applicant appealed to Immigration Appeal Division (IAD) — IAD found there was breach of natural justice, as there was reason to believe applicant was called into interview without full understanding that she would be subject to removal from Canada as result of answers given at interview — IAD found that, despite breach of natural justice and procedural fairness, case was hopeless and lack of success was inevitable — IAD dismissed appeal — Applicant brought application for judicial review — Application granted; matter remitted to IAD with recommendation that it return matter to Immigration Division for hearing de novo — IAD appeared to state that Su- preme Court of Canada decision stood for proposition that breach of procedural fairness does not require new hearing in special circumstances where claim is otherwise hopeless or outcome inevitable — Counsel for both parties agreed that decision in question did not stand for such principle — In decision cited, there was finding of breach of procedural fairness, but since matter that would have been subject of redetermination was not subject of remedies sought, sending it back was determined to be impractical — In present case, remedy being sought by applicant was precisely remedy affected by lack of natural justice and procedural fairness — IAD should not have presumed what result would be and should not have prejudged case as hopeless. 242 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

Administrative law –––– Requirements of natural justice — Miscellane- ous –––– Applicant citizen of Guyana married Canadian citizen in Guyana — Applicant’s husband returned to Canada and sponsored application for applicant to come to Canada as member of family class — Applicant entered Canada and was interviewed — Purpose of interview had not been previously disclosed to applicant, she did not have lawyer present — Member of Immigration Division made determination that applicant was inadmissible because she entered into non-genuine marriage for sole purpose of obtaining residency — Applicant appealed to Immigration Appeal Division (IAD) — IAD found there was breach of natural justice, as there was reason to believe applicant was called into interview without full understanding that she would be subject to removal from Canada as result of answers given at interview — IAD found that, despite breach of natural justice and procedural fairness, case was hopeless and lack of success was inevitable — IAD dismissed appeal — Applicant brought application for judicial review — Application granted; matter remitted to IAD with recommendation that it return matter to Immigration Division for hearing de novo — IAD appeared to state that Supreme Court of Canada decision stood for proposition that breach of procedural fairness does not require new hearing in special circumstances where claim is otherwise hopeless or outcome inevitable — Counsel for both parties agreed that decision in question did not stand for such principle — In decision cited, there was finding of breach of procedural fairness, but since matter that would have been subject of redetermination was not subject of remedies sought, sending it back was determined to be impractical — In present case, remedy being sought by applicant was precisely remedy affected by lack of natural justice and procedural fairness — IAD should not have presumed what result would be and should not have prejudged case as hopeless. Cases considered by Roger T. Hughes J.: Mobil Oil Canada Ltd. v. Canada-Newfoundland (Offshore Petroleum Board) (1994), 1994 CarswellNfld 277, 163 N.R. 27, 21 Admin. L.R. (2d) 248, 115 Nfld. & P.E.I.R. 334, 360 A.P.R. 334, [1994] 1 S.C.R. 202, 111 D.L.R. (4th) 1, 1994 CarswellNfld 211, EYB 1994-67363, [1994] S.C.J. No. 14 (S.C.C.) — considered Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 67 — considered s. 67(1)(b) — considered s. 67(2) — considered

APPLICATION for judicial review of decision dismissing appeal by applicant against removal order.

Robert Blanshay, for Applicant Persaud v. Canada Roger T. Hughes J. 243

Brad Gotkin, for Respondent

Roger T. Hughes J.:

1 This is an application for judicial review of a decision of the Appeal Division of the Immigration and Refugee Board dated March 29, 2010 wherein the Applicant’s appeal against a removal order made against her by the Immigration Division of that Board was dismissed. For the reasons that follow I am allowing the applications, quashing the decision of the Appeal Division with a recommendation that the matter be, in turn, sent back to the Immigration Division for a hearing de novo. 2 The facts of this case are somewhat unusual. The Applicant is an adult female citizen of Guyana. On August 18, 2003 she married Muniraj Persaud, a Canadian citizen, in Guyana. Her husband shortly thereafter returned to Canada and sponsored an application by the Applicant to come to Canada as a member of the family class. On October 5, 2003 the Applicant entered Canada on that basis. 3 The Applicant was interviewed by a Minister’s Delegate on Septem- ber 28, 2006, the purpose of that interview had not been previously disclosed to the Applicant, the Applicant did not have a lawyer present and was not advised that she could have a lawyer present. The Minister’s Delegate prepared a Narrative Memoranda in which reference to the interview was made as well as reference to a statutory declaration of the husband which was said to have been attached but there is no record of that declaration in the file. That Memoranda recommended deportation of the Applicant stating, inter alia, that the Applicant had entered into a bad faith marriage. 4 An Admissibility Hearing was held on May 28, 2008 before a Mem- ber of the Immigration Division. The Applicant was represented by Counsel and was examined. Counsel made representations including the impropriety of the September 28, 2006 interview and the failure of the Minister to provide the husband’s statutory declaration referred to in the Narrative Memoranda. 5 The Member of the Immigration Division gave a written decision dated June 9, 2008 in which it was determined that the Applicant was inadmissible because she entered into a non-genuine marriage for the sole purpose of obtaining Canadian permanent residency. As an alternative, the Member determined that even if the Applicant had entered into the marriage in good faith, she failed to disclose her subsequent resolve 244 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

not to reside with her husband. In the Reasons the Member, at paragraph 11, acknowledged that the September 28, 2006 interview was conducted in breach of a duty of fairness, therefore nothing would be made of the alleged contradictions between what was said there and other sources. 6 An appeal from that decision was taken before Panel (a single member) of the Immigration Appeal Division. The Applicant was represented by Counsel and was examined before the Panel. Her Counsel made representations to the Panel. The Panel, on March 29, 2010, gave the decision at issue here denying the appeal. The Panel found that the Immigra- tion Division Member, having found the initial interview to be seriously tainted, should have sent the whole matter back to be started over. The Panel said at paragraphs 9 to 14 of its Reasons: [9] The panel notes with interest that Minister’s counsel during this appeal made no attempt to refute the concern of counsel for the appellant as to the facts behind the circumstances behind the interview, and the panel, therefore, has reason to believe that in fact the appellant was called into the interview without a full understanding that she would be subject to removal from Canada as a result of her answers given at the interview. [10] In the panel’s opinion, this contradicts procedural fairness and in itself is a breach of natural justice. The panel notes with interest that in his decision, at page 5 of the Record, the Immigration Division Member states the following at paragraph 11: I agree with counsel that the interview at CIC Etobicoke was conducted in breach of the duty of fairness owed to the Respondent by Citizenship and Immigration Canada. She was not informed of the purpose of the hearing, was not given a copy of the documents relied on by the officer, and was not advised that she had the opportunity to have counsel observe the interview or assist her with written submissions. As a result, I decline to make any adverse findings concerning alleged contradictions between what was said at the interview and other sources. [11] The Immigration Division Member’s conclusion is sound. How- ever, in an earlier paragraph of his reasons, namely, at paragraph 8 (found on page 4 of the Record), the Immigration Division Member states the following: During the hearing, she indicated that she never lived with the sponsor, correcting a statement to the contrary made during the CIC Etobicoke interview. Persaud v. Canada Roger T. Hughes J. 245

[12] It is true that the Immigration Division Member then goes on to state that he would not made any adverse findings concerning alleged contradictions between what was said in the interview and other sources, but in the panel’s opinion he should not have referred to a specific contradiction if he was not going to consider the interview. [13] But more importantly, in the panel’s opinion, having come to the conclusion that the whole interview was seriously tainted, the Im- migration Division Member should have, at that point, come to the conclusion that this appellant had not been dealt with fairly and should have sent the whole matter back to CIC and have them start over. [14] Surely, it is obvious from the Record that the interview of the appellant was instrumental in the Immigration officer’s conclusion that the matter should have been referred to the Immigration Division. 7 The Panel then discussed in its Reasons further difficulties arising out of the Immigration Member’s Division, stating that certain conclusions reached were speculation. The Panel concluded at paragraph 24 of its reasons that there was a breach of natural justice and the decision of the Member of the Immigration Division was not valid in law: [24] It follows, therefore, that there has been a breach of natural justice in this decision and the decision in not valid in law. 8 However, the Panel did not stop there, it asked for submissions from Counsel as to whether it should substitute its own decision rather than referring the matter back. The Panel offered its interpretation of the Su- preme Court of Canada decision in the Mobil Oil case (Mobil Oil Canada Ltd. v. Canada-Newfoundland (Offshore Petroleum Board), [1994] 1 S.C.R. 202 (S.C.C.)). [25] However, notwithstanding this finding, the panel indicated to both counsel that it wished to hear submissions on whether this panel could substitute its own decision rather than referring this matter back to the Immigration Division. [26] The panel referred counsel to prior decisions and received submissions at this point. [27] The law has been clearly set out by Madam Justice Layden-Ste- venson in Qu. At paragraph 26 of this decision, Madam Justice Layden-Stevenson states that the law is that ordinarily a breach of procedural fairness voids the hearing and the resulting decision, but an exception to this rule exists. 246 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

[28] She then states that the exception arises from Mobil Oil, where the Supreme Court of Canada explained that a breach of procedural fairness does not require a new hearing in “special circumstances” where the claim in question is otherwise “hopeless” or the outcome reached was “inevitable”. 9 The Panel then reviewed the evidence before it. Applicant’s Counsel submits that some errors were made. The Panel concluded that the Appli- cant’s story was not plausible. At paragraphs 47 and 48 of its Reasons the Panel wrote: [47] The panel has come to this conclusion based solely on the evidence of the appellant and has not relied whatsoever on the tainted documents that were in front of the Immigration Division Member at the Immigration Division hearing. [48] The panel is convinced that if an Immigration Division Member heard the same evidence the panel has heard during this appeal, the Immigration Division Member would come to the same conclusion that the panel has reached at this appeal. This would then lead to a further appeal in front of the Immigration and Refugee Board, with inevitably the same result. 10 The Panel, however, did not stop there, the ultimate conclusion appar- ently reached by the Panel was that there were breaches of natural justice and procedural fairness despite which, because of the Mobil Oil principle, the case is hopeless. It wrote at paragraphs 49 and 50: [49] Given the plausibility concerns of the panel, it finds that despite the breach of natural justice and the breach of procedural fairness that took place at the Immigration Division hearing, the principle enunciated in Mobil Oil applies. The appellant’s case is hopeless and her lack of success is inevitable. [50] The appeal is dismissed.

Issues 11 The essential issue in this case is how the Appeal Division is to deal with a decision of the Immigration Division once a finding has been made that a principle of natural justice had not been observed.

Analysis 12 Section 67 of the Immigration and Refugee Protection Act (IRPA), S.C. 2001, c. 27 provides: 67. (1) To allow an appeal, the Immigration Appeal Division must be satisfied that, at the time that the appeal is disposed of, Persaud v. Canada Roger T. Hughes J. 247

(a) the decision appealed is wrong in law or fact or mixed law and fact; (b) a principle of natural justice has not been observed; or (c) other than in the case of an appeal by the Minister, taking into account the best interests of a child directly affected by the decision, sufficient humanitarian and compassionate considerations warrant special relief in light of all the circumstances of the case. Effect (2) If the Immigration Appeal Division allows the appeal, it shall set aside the original decision and substitute a determination that, in its opinion, should have been made, including the making of a removal order, or refer the matter to the appropriate decision-maker for reconsideration. 13 In the present circumstances we are dealing with section 67(1)(b) which provides that, to allow an appeal, the Appeal Division must find that a principle of natural justice has not been observed. In the present case this is precisely what the Appeal Division found. 14 Once a finding has been made that a principle of natural justice has not been observed, section 67(2) provides that the Appeal Division can, if it allows the appeal, do one of two things, it can make the decision that it believes should have been made or it can refer the matter back for redetermination. In the present case the Appeal Division did something puzzling. It appears first to have made its own decision just on the evidence before it and, in so doing, arrived at the same result that the Immi- gration Division did. This is what the Appeal Division wrote at paragraph 47 of its reasons: [47] The panel has come to this conclusion based solely on the evidence of the appellant and has not relied whatsoever on the tainted documents that were in front of the Immigration Division Member at the Immigration Division hearing. 15 However the Panel did not stop there, it seems to speculate that even if it did return the matter to the Immigration Division the member would reach the same result. While this may be possible it is by no means certain. Then the Panel says that if that decision were returned to the Appeal Division it again speculates as to an inevitable result. This form of prejudging what a decision maker or makers may do does not form a 248 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

sound basis for refusing to return a matter. At paragraph 48 of its Rea- sons the Panel wrote: [48] The panel is convinced that if an Immigration Division Member heard the same evidence the panel has heard during this appeal, the Immigration Division Member would come to the same conclusion that the panel has reached at this appeal. This would then lead to a further appeal in front of the Immigration and Refugee Board, with inevitably the same result. 16 In the final paragraphs of the Reasons, 49 and 50, the Panel found that “despite the breach of natural justice and procedural fairness” something that it called the “principle enunciated in Mobil Oil” applied and concluded that the case was “hopeless” and lack of success “inevitable”, hence the appeal was dismissed. [49] Given the plausibility concerns of the panel, it finds that despite the breach of natural justice and the breach of procedural fairness that took place at the Immigration Division hearing, the principle enunciated in Mobil Oil applies. The appellant’s case is hopeless and her lack of success is inevitable. [50] The appeal is dismissed. 17 The “principle enunciated in Mobil Oil” referred to by the Panel is probably that set out in paragraph 28 of the Reasons: [28] She then states that the exception arises from Mobil Oil, where the Supreme Court of Canada explained that a breach of procedural fairness does not require a new hearing in “special circumstances” where the claim in question is otherwise “hopeless” or the outcome reached was “inevitable”. 18 Counsel for both parties before me agreed that Mobil Oil does not stand for such a proposition. Mobil Oil dealt with a unique set of circumstances where there was a finding of breach of procedural fairness which the Supreme Court found would have required the matter to be sent back for redetermination. However, since the matter that would have been the subject of redetermination was not the subject of the remedies sought, it was determined to be impractical to send it back. Iacobucci J. for the Court wrote: Mobil Oil’s application was greeted by a letter from the Chairman which stated that the application could “not be brought before the Board” because it was not “bona fide”. While I agree that the Imple- mentation Act absolutely cannot support the interpretation advocated by Mobil Oil, it goes too far to pretend that Mobil Oil did not deserve a full hearing, which could have been effected in writing, in respect Persaud v. Canada Roger T. Hughes J. 249

of its novel interpretation. The Chairman’s response was the product of an improper subdelegation which effectively interrupted Mobil Oil’s procedural guarantees. Indeed, before this Court counsel for the Board admitted that it would have been preferable for Mobil Oil to have been given a Board hearing. If it would have been preferable, why should another result be accepted? In light of these comments, and in the ordinary case, Mobil Oil would be entitled to a remedy responsive to the breach of fairness or natural justice which I have described. However, in light of my disposition on the cross-appeal, the remedies sought by Mobil Oil in the appeal per se are impractical. While it may seem appropriate to quash the Chairman’s decision on the basis that it was the product of an improper subdelegation, it would be nonsensical to do so and to compel the Board to consider now Mobil Oil’s 1990 application, since the result of the cross-appeal is that the Board would be bound in law to reject that application by the decision of this Court. The bottom line in this case is thus exceptional, since ordinarily the apparent futility of a remedy will not bar its recognition: Cardinal, supra. On occasion, however, this Court has discussed circumstances in which no relief will be offered in the face of breached administrative law principles: e.g., Harelkin v. University of Regina [1979] 2 S.C.R. 561. As I described in the context of the issue in the cross- appeal, the circumstances of this case involve a particular kind of legal question, viz., one which has an inevitable answer. In Administrative Law (6th ed. 1988), at p. 535, Professor Wade dis- cusses the notion that fair procedure should come first, and that the demerits of bad cases should not ordinarily lead courts to ignore breaches of natural justice or fairness. But then he also states: A distinction might perhaps be made according to the nature of the decision. In the case of a tribunal which must decide according to law, it may be justifiable to disregard a breach of natural justice where the demerits of the claim are such that it would in any case be hopeless. In this appeal, the distinction suggested by Professor Wade is apt. 19 The point being made by the Supreme Court is that where a breach of natural justice or procedural fairness has been found the Court cannot refuse to send it back because it supposes that the case would be found to be futile. A rare exception exists where the remedy sought would not be relevant in the context of the matter presently before the Court. 20 Here the remedy being sought by the Applicant is precisely the remedy affected by the lack of natural justice and procedural fairness. The 250 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

Panel should not presume what the result would be nor should it prejudge the case as hopeless. 21 In the present circumstances had the Panel stopped at paragraph 47 of its Reasons there would have been little for this Court to say. However since the Panel went on at paragraphs 48 to 50 this Court cannot treat this as mere surplusage. It must consider that the Panel was making a meaningful determination in this regard. That being the case, it is best to return the matter for redetermination. Since the Applicant only asked for redetermination by the Appeal Division that is what I will do however I recommend that the Appeal Division, it turn, return the matter to the Im- migration Division. 22 While Counsel have suggested possible certified questions, the matter is sufficiently fact specific that I will not certify a question.

Judgment THIS COURT’S JUDGMENT is that: 1. The Application is allowed. 2. The matter is returned to the Immigration Appeal Division with a recommendation that it return the matter to the Immigration Divi- sion for a hearing de novo; 3. There is no question for certification; 4. No Order as to costs. Application granted; matter remitted with recommendation for hearing de novo. S¨okmen v. Canada (Minister of Citizenship & Immigration) 251

[Indexed as: S¨okmen v. Canada (Minister of Citizenship & Immigration)] Soner S¨okmen, Applicant and Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-2114-10 2011 FC 47 Luc Martineau J. Heard: December 06, 2010 Judgment: January 17, 2011 Immigration and citizenship –––– Exclusion and removal — Inadmissible classes — Health –––– Applicant had son, B, with congenital heart disease — B’s condition was stable and controlled — B took inexpensive medication and did not need assistance of social services — Applicant applied for permanent residence and personally committed to pay all costs of health and social services that family’s arrival in Canada would entail — Immigration officer rejected applicant’s application because of B’s health condition and its possible excessive demand on Canadian health or social services — Applicant brought application for judicial review of officer’s decision — Application granted — Officer’s decision was unreasonable — Medical officer’s narrative did not contain indication that there was evidence that significant costs were likely to be incurred beyond period provided for in Immigration and Refugee Protection Regulations — Nor did medical officer review applicant’s proposed plan — Considering evidence before him, medical officer’s analysis was biased and incomplete — If medical officer did not agree with B’s doctor’s assessment, he should have explained why in his report — Further, general conclusion was not supported by evidence and was speculative — Full analysis was required to determine whether demand was “excessive”. Immigration and citizenship –––– Admission — Appeals and judicial review — Judicial review — Jurisdiction –––– Failure to consider evidence — Applicant had son, B, with congenital heart disease — B’s condition was stable and controlled — B took inexpensive medication and did not need assistance of social services — Applicant applied for permanent residence and personally committed to pay all costs of health and social services that family’s arrival in Canada would entail — Immigration officer rejected applicant’s application because of B’s health condition and its possible excessive demand on Canadian health or social services — Applicant brought application for judicial review of officer’s decision — Application granted — Officer’s decision was unreasona- 252 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

ble — Medical officer’s narrative did not contain indication that there was evidence that significant costs were likely to be incurred beyond period provided for in Immigration and Refugee Protection Regulations — Nor did medical officer review applicant’s proposed plan — Considering evidence before him, medical officer’s analysis was biased and incomplete — If medical officer did not agree with B’s doctor’s assessment, he should have explained why in his report — Further, general conclusion was not supported by evidence and was speculative — Full analysis was required to determine whether demand was “excessive”. Cases considered by Luc Martineau J.: Colaco v. Canada (Minister of Citizenship & Immigration) (2007), 2007 Car- swellNat 2909, 2007 FCA 282, 64 Imm. L.R. (3d) 161, 370 N.R. 333, 2007 CAF 282, 2007 CarswellNat 5526, [2007] F.C.J. No. 1172 (F.C.A.) — considered Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 38(1)(c) — referred to s. 42 — referred to Regulations considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Immigration and Refugee Protection Regulations, SOR/2002-227 Generally — referred to

APPLICATION for judicial review of officer’s decision rejecting applicant’s application for permanent residence.

Nicole Goulet, for Applicant Agniska Zagorska, for Respondent

Luc Martineau J.:

1 The applicant is challenging the legality of a decision of an immigration officer at the Canadian Embassy in Ankara, Turkey, rejecting the applicant’s application for permanent residence and concluding that he and his accompanying family members are inadmissible under paragraph 38(1)(c) and section 42 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act). 2 Further to a medical narrative prepared by Dr. Hindle, the medical officer for Citizenship and Immigration Canada (the department), the immigration officer determined that the applicant’s son, Bariˇs, has a health S¨okmen v. Canada (Minister of Citizenship & Immigration) Luc Martineau J. 253

condition that might reasonably be expected to cause excessive demand on Canadian health or social services. 3 On this application for judicial review, the parties acknowledge that the appropriate standard of review of the immigration officer’s decision is reasonableness. The jurisprudence establishes that an immigration officer must consider the medical officer’s assessment in light of all the relevant evidence (medical and non-medical). Moreover, the medical officer must conduct an individualized assessment of the person to determine excessive demand; if it is alleged that the medical officer failed to do so, the standard of review is correctness. 4 For the following reasons, the application for judicial review must be allowed. 5 In this case, the applicant, a Turkish citizen, submitted an application for permanent residence in the economic category as an investor. The applicant and his family were selected by Quebec, but they still must not be inadmissible to Canada. 6 Bariˇs, born on February 15, 1992, presents a tetralogy of Fallot, a congenital heart disease. He has been treated in France for over fourteen years by Dr. Emre Belli, an eminent cardiologist who practises at the Marie Lannelongue hospital in Paris. Fortunately, the S¨okmen family has the financial resources to support Bariˇs because his condition has required a number of interventions in the past. Despite their plan to move to Canada, the S¨okmen family still prefers today that Bariˇs be treated and followed in France by Dr. Belli. 7 However, Bariˇs’ condition is stable and controlled, which is con- firmed by his treating physician, Dr. Belli. In fact, the new pulmonary prosthesis, which was implanted percutaneously in London in 2008, allows Bariˇs to enjoy the same pace of life as all boys his age. He goes to school full-time, performs daily tasks and plays various sports such as tennis. 8 Bariˇs takes inexpensive medication, one 20 mg enapril tablet and one aspirin per day. He does not need the assistance of social services. That being said, the applicant has personally committed, if necessary, to pay all the costs of health and social services that the family’s arrival in Can- ada may entail. 9 In the impugned decision dated February 3, 2010, the immigration officer rejected the applicant’s application for permanent residence on the ground that Bariˇs’ health condition might “reasonably be expected to 254 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

cause excessive demand on health or social services”. This final decision was in the form of a generic letter. It did not specifically mention the medical reports in the file or the representations submitted by the applicant. 10 To understand the immigration officer’s refusal to issue a permanent residence visa, reference must first be made to the fairness letter dated June 4, 2009, which was sent to the applicant with Dr. Hindle’s medical narrative. We point out that Dr. Hindle did not examine Bariˇs and that his opinion was supposedly based on the medical file, including the cardiologist’s opinions, which he was able to consult. What follows is a brief summary of the medical evidence in the record. 11 First, Bariˇs was examined in Turkey by Dr. Durmus Sevin¸c on behalf of the Canadian Embassy in Ankara. Dr. Sevin¸c prepared a detailed medical report dated September 19, 2008. Regarding the treatment for Bariˇs’ tetralogy of Fallot, Dr. Sevin¸c referred to the surgeries in 1993, 1995 and 1997 as well as the valve replacement in 2003 and 2008. Dr. Sevin¸c also noted the medications that Bariˇs takes and the results of the examinations he completed (vision, blood pressure, respiration). 12 When he finished examining Bariˇs, Dr. Sevin¸c checked box B of the department’s medical form: B. Findings that require periodic specialist following care but which normally can be handled without resorting to repeated hospitalizations or the provision of social services (e.g. totally asymptom- atic congenital or rheumatic heart disease where the requirement for hospitalization and/or surgical intervention appears unlikely over the next ten years, well controlled rheumatoid arthritis with a minimal functional impact, etc.). Applicant should be able to function inde- pendently and be self-sufficient (no anticipated need for domicialary or nursing .... care in the future). No evidence of mental retardation or developmental delay. NO ACTIVE TB OR DANGEROUS BE- HAVIOUR. At most, only minor hospitalizations. 13 Dr. Sevin¸c’s report was then sent from the Canadian Embassy in An- kara to the Embassy in Paris. In an internal memorandum dated October 29, 2008, a medical officer requested that the opinion of the specialist who was treating Bariˇs for his current medical condition, in this case his cardiologist, be added to the file. The officer wanted to obtain his opinion on the probability of further surgery or non-invasive procedures within the next five years. S¨okmen v. Canada (Minister of Citizenship & Immigration) Luc Martineau J. 255

14 In this case, Dr. Belli wrote two detailed reports on Bariˇs’ medical condition dated December 24, 2008, and March 31, 2009. 15 In his first report, Dr. Belli explained that the surgical interventions allow Bariˇs to have a normal quality of life and that his heart disease is well controlled. He concluded that it will [TRANSLATION] “likely be necessary to intervene on his pulmonary bioprosthesis in several years but probably not within the next five years. This intervention will prefer- ably be through interventional catheterization without surgical revision.” 16 In the second report, Dr. Belli added to the first report, saying that it was difficult to estimate the lifespan of the prosthetic valve that Bariˇs has since it is a relatively recent valve but that [TRANSLATION] “it is very probable that, as a result of favourable rheologic properties, the valve will degenerate more slowly.” Further on, he said that it was probably possible that the valve could be replaced again without surgical intervention. 17 Although Bariˇs’ tetralogy of Fallot was repaired in 1995 and it will likely not be necessary to intervene on his pulmonary bioprothesis for several years and probably not within the next five years (see Dr. Belli’s report), the department’s medical officer nonetheless concluded that his health condition might reasonably be expected to cause excessive demand on Canadian health or social services. 18 Dr. Hindle’s analysis is succinct; the complete text reads as follows: Diagnosis: Congenital heart disease 759 Narrative: This NV5 application born in 1992 in Turkey has Tetralogy of Fallot, a severe congenital heart disease, with transposition of the great vessels. He has already required multiple cardiac surgeries including 1993, 95, 97 and valve replacements in 2003 and 2008. According to the specialist’s report of Feb. 12, 2008 his peak oxygen uptake was less than 35% of predicted. There was significant evidence of impaired mechanical work efficiency and oxygen pulse of the heart. His last cardiac operation was precutaneous pulmonary valve implantation with relief of obstruction and abolishment of pulmonary regurgitatin. However, “the biventricular function is significantly impaired and cardiopulmonary exercise testing before and after the procedure showed severely impaired exercise capacity.” According to the most recent cardiologist report dated 13/03/2009, he will require further open heart surgery. 256 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

This would entail another cardiac hospital admission and procedure. This procedure will require the services of specialized hospital facilities and a highly skilled team of doctors, nurses and support staff. These medical facilities and personnel are expensive and in high demand. All of these findings are indicative of serious heart disease with significant alteration in the overall structure and functioning of the heart. The prognosis for this medical condition is for continuation and deterioration. Ongoing specialist’s attention, associated tests; further hospitalizations and surgical interventions are indicated. These services are costly and will also displace those in Canada already awaiting these services. 19 We will come back to certain gratuitous statements made by Dr. Hin- dle a little later. For the moment, we note that in the fairness letter dated June 4, 2009, the immigration officer repeated Dr. Hindle’s analysis. At page 2, speaking about Bariˇs’ congenital disease, the immigration officer concluded: Based upon my review of the results of this medical examination and all the reports I have received with respect to his health condition, I conclude that he has a health condition that might reasonably be expected to cause excessive demand on health services. Specifically, this medical condition might reasonably be expected to require health services, the costs of which would likely exceed the average Cana- dian per capita costs over the next five to ten years and displace those in Canada awaiting these services. He is therefore deemed inadmissible under Section 38(1)(c) of the Immigration and Refugee Protec- tion Act. (Emphasis added.) 20 What is striking initially is that the immigration officer’s above-noted conclusion does not take into consideration the medical officer’s medical narrative. 21 It is true that in the Immigration and Refugee Protection Regulations, SOR/2002-227 (the Regulations) “excessive demand” includes “a demand on health services or social services for which the anticipated costs would likely exceed average Canadian per capita health services and social services costs over a period of five consecutive years immediately following the most recent medical examination required by these Regula- tions, unless there is evidence that significant costs are likely to be incurred beyond that period, in which case the period is no more than 10 consecutive years.” (Emphasis added.) S¨okmen v. Canada (Minister of Citizenship & Immigration) Luc Martineau J. 257

22 However, Dr. Hindle’s medical narrative does not contain any indication that “there is evidence that significant costs are likely to be incurred beyond that period, in which case the period is no more than 10 consecutive years.” 23 Moreover, if we review the reasonableness of the immigration officer’s general conclusion in the fairness letter in light of “Operational Bulletin 063-B œ Assessing Excessive Demand on Social Services”, the period considered should be stated in the medical officer’s opinion to the visa officer, which is not the case here. At the very most, Dr. Hindle’s medical narrative deals with the tetralogy of Fallot generically. 24 Nor did Dr. Hindle review the applicant’s proposed plan, taking into consideration the availability, quality, feasibility and financing of the proposed plan, apart from saying that Bariˇs will have to undergo open- heart surgery, which will require medical resources that are in great demand and are also very costly for the Canadian health system. 25 In his report, Dr. Hindle referred to the multiple surgeries that Bariˇs underwent in 1993, 1995 and 1997. He also provided some information on his medical condition in February 2008, which was obtained from his medical file. However, considering the evidence before him, Dr. Hin- dle’s analysis is biased and incomplete. Dr. Hindle goes so far as to state that the prognosis is negative and that Bariˇs’ condition will deteriorate, which directly contradicts the medical evidence in the record. 26 Dr. Belli never speaks of open-heart surgery. His prognosis for Bariˇs’ condition is favourable. Dr. Belli has been treating Bariˇs virtually since he was born: there is no one in the world who knows Bariˇs’ medical reality better than he does. He is a renowned cardiologist. That being said, there is no evidence in the record to suggest that Dr. Hindle special- izes in heart and lung disease any more than the medical officer working at the Canadian Embassy in Paris, who seems to have also been involved or consulted. 27 Even more serious is the fact that Dr. Hindle quotes Dr. Belli’s report of March 31, 2009, as stating generally that Bariˇs will require open-heart surgery. In reality, as stated above, Dr. Belli’s second report indicates that the valve replacement could perhaps be done without surgical intervention, and the first report states that the surgery would take place “in several years, but probably not within the next five years.” 28 Given that the valve is new, Dr. Belli did not make any promises, but he certainly did not say that open-heart surgery would be required in the next five years. The criterion to consider is not whether Bariˇs would re- 258 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

quire the surgery as such, as Dr. Hindle’s report implies, but whether it would take place in the next five to ten years. 29 If the medical officer did not agree with Dr. Belli’s assessment, he should have explained why in his report, which he failed to do in this case. 30 In the CAIPS notes in the applicant’s file, the immigration officer wrote on February 3, 2010, that the additional information provided by the applicant after he received the fairness letter did not change the initial determination that Bariˇs is inadmissible under paragraph 38(1)(c) of the Act: THE DMP (PARIS) RESPONDED ON 27 JANUARY TO THE PROCEDURAL FAIRNESS; HIS DECLARATION IS AS FOL- LOWS; “AFTER READING THE MEDICAL FILE AND ALL THE DOCUMENTS SUBMITTED, THE ADDITIONAL INFORMA- TION DOES NOT MODIFY THE MEDICAL INADMISSIBLITY OF THIS CLIENT. ALTHOUGH HE IS COPING WELL THE [sic] MOMENT, HIS HISTORY OF MULTIPLE OPERATIONS AND THE CARDIAC SURGEON S OPINION THAT HE WILL AGAIN REQUIRE OPEN HEART SURGERY IN THE RELATIVE NEAR FUTURE, REQUIRES THAT THE M5 ASSESSMENT REMAINS. HE IS THEREFORE DEEMED INADMISSIBLE UNDER SEC- TION 38(1)(c) OF IPRA. ON BASIS OF THIS INFORMATION; I AM SATISFIED THAT THE APPLICANT S DEPENDANT SON IS INADMISSIBLE UNDER SECTION 38(1)(c) of the IRPA. APPLICANT IS INAD- MISSIBLE ON MEDICALS [sic] GROUNDS. THEREFORE RE- FUSED ON 38(1)(C) OF THE ACT. LETETR [sic] TO BE PREPARED. (Emphasis added.) 31 As can be seen, it appears that on February 3, 2010, the immigration officer returned to the period taken into consideration in terms of anticipated costs: it was no longer a question of a period beyond the next five years, the immigration officer referred to the fact that Bariˇs will undergo open-heart surgery within the next five years. 32 However, given Dr. Belli’s two reports, Dr. Hindle’s conclusion that “the prognosis for this medical condition is for continuation and deterioration. Ongoing specialist’s attention, associated tests, further hospitalizations and surgical interventions are indicated” is clearly a generic conclusion about the tetralogy of Fallot, not Bariˇs’ particular situation. S¨okmen v. Canada (Minister of Citizenship & Immigration) Luc Martineau J. 259

33 But there is an another reason to set aside the immigration officer’s decision. Beyond the medical aspect, the immigration officer’s general conclusion is not supported by the evidence in the record and is speculative. 34 In terms of finances, the impugned decision does not contain any analysis of the applicant’s proposed plan. It must be noted, under paragraph 38(1)(c) of the Act, that it is only where a medical condition might reasonably be expected to cause excessive demand that the person is inadmissible. This indicates that some demand is acceptable; a full analysis is therefore required to determine whether the demand is “excessive”. 35 In Colaco v. Canada (Minister of Citizenship & Immigration), 2007 FCA 282 (F.C.A.), the Federal Court of Appeal found that, in assessing both the risk of demand and the extent of that demand, the foreign national’s ability and willingness to pay for the services are relevant factors to take into consideration. These factors are not conclusive or determinative in making the assessment, but they cannot be ignored because they may influence the level of risk and demand for social services support. 36 In this case, the applicant provided the immigration officer with evidence of the S¨okmen family’s financial resources. The applicant also submitted a statement of ability and willingness, in which the applicant stated that he intended to continue to have Bariˇs treated by Dr. Belli in Paris, that he would assume full responsibility for Baris’ care in Canada and that the federal and provincial governments would not be responsible in any way for the costs associated with it. 37 After reviewing the impugned decision and the CAIPS notes in the record, the Court cannot find that the immigration officer properly considered these factors, which constitutes reviewable error. 38 For all these reasons, the immigration officer’s decision is unreasonable, and the Court will grant judicial review. Counsel for the parties agree that no question of general importance is raised in this case. Also, no question will be certified.

Judgment THE COURT ADJUDGES AND RULES AS FOLLOWS: 1. The application for judicial review is allowed; 2. The decision of February 3, 2010, is set aside, and the application for permanent residence by the applicant and his accompanying 260 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

family members is returned for reconsideration by another immigration officer at the Canadian Embassy in Ankara, Turkey; and 3. No question is certified. Application granted. Ghaedi v. Canada (Minister of Citizenship & Immigration) 261

[Indexed as: Ghaedi v. Canada (Minister of Citizenship & Immigration)] Gholam Ghaedi, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: T-1048-10 2011 FC 85 R.L. Barnes J. Heard: January 11, 2011 Judgment: January 25, 2011 Immigration and citizenship –––– Citizenship — Grant of citizenship — Re- quirements for grant of citizenship — Residence in Canada — General principles –––– Permanent resident came to Canada in 2001 with his wife and children and was granted permanent resident status — He applied for citizenship on November 10, 2005 — At citizenship interview permanent resident declared absences from Canada between September 2001 and November 2005 of 701 days, giving rise to shortfall in meeting minimum statutory threshold for residency of 1095 days — Citizenship Court rejected permanent resident’s application on basis of strict physical presence test of residency — Permanent resident brought application for judicial review on ground that given recent Federal Court decisions, strict physical presence approach to residency constituted reviewable error of law — Application granted; matter remitted for redetermination — At issue was whether cited decision should be followed or whether more recent views expressed by Federal Court should be followed — More recent decisions held that where applicant has not met physical test, qualitative standard for residency should be applied — Views of more recent decisions were compelling and justified departure from view expressed in cited decision — Benefits of harmonizing approach to residency outweighed concerns regarding deference to judgment of Citizenship Court — This was not issue for which judicial comity applied. Cases considered by R.L. Barnes J.: Canada (Minister of Citizenship & Immigration) v. Alonso Cobos (2010), 92 Imm. L.R. (3d) 61, 2010 CarswellNat 3354, 2010 FC 903, 2010 CarswellNat 4654, 2010 CF 903 (F.C.) — referred to Canada (Minister of Citizenship & Immigration) v. Elzubair (2010), 2010 Car- swellNat 3030, 2010 CF 298, 2010 CarswellNat 573, 2010 FC 298, [2010] F.C.J. No. 330 (F.C.) — referred to 262 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

Canada (Minister of Citizenship & Immigration) v. Nandre (2003), 2003 CFPI 650, 2003 CarswellNat 2797, 2003 CarswellNat 1509, 2003 FCT 650, 234 F.T.R. 245, [2003] F.C.J. No. 841 (Fed. T.D.) — considered Canada (Minister of Citizenship & Immigration) v. Salim (2010), 2010 Car- swellNat 5171, 92 Imm. L.R. (3d) 196, 2010 CF 975, 2010 CarswellNat 3654, 2010 FC 975, [2010] F.C.J. No. 1219 (F.C.) — referred to Canada (Ministre de la Citoyennet´e & de l’Immigration) c. Abou-Zahra (2010), 2010 CF 1073, 2010 CarswellNat 4088, 2010 CarswellNat 4678, 2010 FC 1073 (F.C.) — referred to Canada (Ministre de la Citoyennet´e & de l’Immigration) c. Takla (2009), 2009 CarswellNat 3741, 2009 FC 1120, (sub nom. Canada (Minister of Citizenship and Immigration v. Takla) 359 F.T.R. 248 (Eng.), 2009 Car- swellNat 4777, 2009 CF 1120, [2009] F.C.J. No. 1371 (F.C.) — considered Dedaj v. Canada (Minister of Citizenship & Immigration) (2010), 2010 Car- swellNat 3105, 2010 CF 777, 90 Imm. L.R. (3d) 138, 2010 FC 777, 2010 CarswellNat 2485 (F.C.) — considered Khan v. Canada (Minister of Citizenship & Immigration) (2009), 2009 Car- swellNat 3822, 2009 FC 1178 (F.C.) — referred to Koo, Re (1992), 19 Imm. L.R. (2d) 1, [1993] 1 F.C. 286, 59 F.T.R. 27, 1992 CarswellNat 83, 1992 CarswellNat 621, [1992] F.C.J. No. 1107 (Fed. T.D.) — considered Lam v. Canada (Minister of Citizenship & Immigration) (1999), 1999 Car- swellNat 489, 164 F.T.R. 177, [1999] F.C.J. No. 410 (Fed. T.D.) — considered Papadogiorgakis, Re (1978), 1978 CarswellNat 23, [1978] 2 F.C. 208, 88 D.L.R. (3d) 243, 1978 CarswellNat 23F, [1978] F.C.J. No. 31 (Fed. T.D.) — considered Pourghasemi, Re (1993), 1993 CarswellNat 77, 19 Imm. L.R. (2d) 259, 62 F.T.R. 122, [1993] F.C.J. No. 232 (Fed. T.D.) — followed Statutes considered: Citizenship Act, R.S.C. 1985, c. C-29 Generally — referred to s. 5(1)(c) — referred to s. 14(5) — referred to

APPLICATION by permanent resident for judicial review of decision of Citi- zenship Court rejecting his application for citizenship on basis of strict physical presence test of residency.

Ronald Poulton, for Applicant Leila Jawando, for Respondent Ghaedi v. Canada (Minister of Citizenship & Immigration) R.L. Barnes J. 263

R.L. Barnes J.:

1 This is an appeal by Gholam Ghaedi brought under ss 14(5) of the Citizenship Act, RSC 1985, c C-29 [Act] from a decision of the Citizen- ship Court by which his application for citizenship was refused.

Background 2 Mr. Ghaedi came to Canada in 2001 along with his wife and five children. At that time, the family was granted permanent resident status. The Ghaedi children have all since acquired their Canadian citizenship. 3 Mr. Ghaedi applied for citizenship on November 10, 2005. In his application he claimed to have been absent from Canada for a total of 217 days during the preceding four years. All of Mr. Ghaedi’s declared absences related to trips taken to Dubai and Iran. Because this declaration was inconsistent with information recorded in Mr. Ghaedi’s passport, Mr. Ghaedi was ordered to complete a residency questionnaire and to attend for a citizenship interview. It was at this point that Mr. Ghaedi declared absences from Canada between September 2001 and November 2005 of 701 days, giving rise to a significant shortfall in meeting the minimum statutory threshold for residency of 1095 days.

The Decision Under Review 4 The Citizenship Court rejected Mr. Ghaedi’s application on the basis of the strict physical presence test of residency recognized by this Court in Pourghasemi, Re (1993), 62 F.T.R. 122, 19 Imm. L.R. (2d) 259 (Fed. T.D.). No consideration was given to the application of the more flexible standard of so-called functional residency recognized in cases like Koo, Re (1992), [1993] 1 F.C. 286, 59 F.T.R. 27 (Fed. T.D.). Mr. Ghaedi argues that, in keeping with several recent decisions of this Court, this approach to residency constitutes a reviewable error of law.

Issues 5 Did the Citizenship Court err by determining Mr. Ghaedi’s residency on the sole basis of the Applicant’s physical presence in Canada during the four years preceding his application? 264 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

Analysis 6 The issue before the Court is one of law and must be reviewed on the standard of correctness: see Canada (Ministre de la Citoyennet´e & de l’Immigration) c. Takla, 2009 FC 1120, 359 F.T.R. 248 (Eng.) (F.C.). 7 This is a situation which requires the Court to revisit the issue of residency under ss 5(1)(c) of the Act and specifically whether the period of required residency can be determined solely on the basis of an individual’s physical presence in Canada for a minimum period of 1095 days. 8 At issue is whether this Court should continue to follow the decision in Lam v. Canada (Minister of Citizenship & Immigration) (1999), 164 F.T.R. 177, [1999] F.C.J. No. 410 (Fed. T.D.) or adopt the more recent views expressed by Justice Robert Mainville in Canada (Ministre de la Citoyennet´e & de l’Immigration) c. Takla, 2009 FC 1120, 359 F.T.R. 248 (Eng.) (F.C.). 9 In Lam, above, Chief Justice Allan Lutfy examined the previous 20 years of conflicting Federal Court decisions that had recognized three different residency tests under the Act, namely those found in Koo, Re, above; Pourghasemi, Re, above; and Papadogiorgakis, Re, [1978] 2 F.C. 208, 88 D.L.R. (3d) 243 (Fed. T.D.). He observed that in the absence of a right of appeal to the Federal Court of Appeal, there was no judicial mechanism by which the jurisprudential disagreement as to the proper test could be readily resolved. He expressed the hope, however, that the impasse would be solved by then pending legislative amendments. He concluded that, notwithstanding that the issue of residency was one “close to the correctness end of the spectrum”, deference was required when the decision under review clearly demonstrated the proper application of the facts to any of the three previously recognized tests for residency. It is also apparent from his reasons that he was influenced in part by the expectation that legislative changes would be forthcoming1 . 10 Unfortunately the legislative amendments anticipated in Lam, above, never came to fruition. In the result, the decision has become well en- trenched in this Court’s jurisprudence and the Citizenship Court has quite properly followed it. The inevitable consequence of not having a single test for residency is, however, that similar citizenship cases can be decided differently based upon which one of the recognized legal tests for

1At paras 32 and 33 Chief Justice Lutfy refers to the situation as a period of transition calling for some judicial stability around the standard of review. Ghaedi v. Canada (Minister of Citizenship & Immigration) R.L. Barnes J. 265

residency is applied. Although the Lam approach may have largely elimi- nated the continuation of a residency debate in this Court, it has not led to greater certainty in the determination of residency at the Citizenship Court. 11 In Canada (Minister of Citizenship & Immigration) v. Nandre, 2003 FCT 650, [2003] F.C.J. No. 841 (Fed. T.D.) Justice James O’Reilly considered the problem. He held that in keeping with the preponderance of jurisprudence, where an applicant for citizenship has failed to satisfy the statutory threshold of 1095 days of physical presence in Canada, a single unifying qualitative standard for residency was required. He concluded his analysis with the following admonition: 21 Accordingly, I find that the qualitative test set out in Papadogior- gakis and elaborated upon in Koo should be applied where an applicant has not met the physical test. I should add that I do not regard the qualitative test as one that is easy to meet. A person’s connection to Canada would have to be quite strong in order for his or her absences to be considered periods of continuous residency in Canada. 12 In Takla, above, Justice Mainville attempted again to break through the jurisprudential impasse with a plea for a uniform and judicially coherent approach. He observed that of the three tests for residency the qualitative approach in Koo, Re, above, was “by far, the dominant test” and that it should, therefore, be the only recognized standard in such cases. 13 The Takla decision has since been cited with approval in Canada (Minister of Citizenship & Immigration) v. Elzubair, 2010 FC 298 (F.C.), in Canada (Minister of Citizenship & Immigration) v. Salim, 2010 FC 975 (F.C.) and noted as a “prevalent trend” by Justice O’Reilly when he revisited the issue in Dedaj v. Canada (Minister of Citizenship & Immi- gration), 2010 FC 777 (F.C.): also see Canada (Minister of Citizenship & Immigration) v. Alonso Cobos, 2010 FC 903 (F.C.); Canada (Ministre de la Citoyennet´e & de l’Immigration) c. Abou-Zahra, 2010 FC 1073 (F.C.); and Khan v. Canada (Minister of Citizenship & Immigration), 2009 FC 1178 (F.C.). 14 Although the Respondent has cited a few recent Federal Court decisions where the ratio in Lam, above, has been applied, they appear to have been rendered without consideration of Nandre, above, or Takla either because those authorities were not cited to the Court or were unnecessary to the final dispositions. 266 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

15 Counsel for the Respondent points out that with the exception of Dedaj, above, the outcome of Takla and the cases following it turned on the Citizenship Judge’s proper application of the test for residency established by Koo, Re, above. All of the discussions about the need for a single unified test for residency were accordingly obiter. Notwithstand- ing that interesting observation, I agree with counsel for Mr. Ghaedi that the views expressed by Justice O’Reilly and Justice Mainville are compelling and justify departing from the view expressed both in Lam, above, and the cases which have applied it, including several of my own decisions. In my view, the benefits of harmonizing the approach to residency outweigh the concerns expressed in Lam, above, about deferring to the judgment of the Citizenship Court. Deference is not a juridical value that outweighs the need for adjudicative consistency and the predictabil- ity of judicial outcomes. 16 Counsel for Mr. Ghaedi argued that I am bound to follow Takla, above, and the more recent decisions of my judicial colleagues. I do not agree that this is an issue for which judicial comity applies. Notwith- standing the views of any particular judge, there will continue to be two lines of divergent authority on this issue and others may be quite properly disposed to follow Lam, above. Needless to say, if this Court does not over time adopt a common view on this issue, it is unlikely that the Citizenship Court will do so and the only available resolution in that event will be legislative.

Conclusion 17 For the reasons expressed above, this application is allowed with the matter to be remitted to a different Judge of the Citizenship Court for a redetermination on the merits and in accordance with these reasons. Given the circumstances of this case, I am not disposed to award costs to Mr. Ghaedi.

Judgment THIS COURT’S JUDGMENT is that this application is allowed with the matter to be remitted to a different Judge of the Citizenship Court for a redetermination on the merits and in accordance with these reasons. Application granted. Davis v. Canada (Minister of Citizenship & Immigration) 267

[Indexed as: Davis v. Canada (Minister of Citizenship & Immigration)] Petra Maria Davis, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-2663-10 2011 FC 97 Anne Mactavish J. Heard: January 26, 2011 Judgment: January 27, 2011 Immigration and citizenship –––– Refugee protection — Practice and procedure in refugee claims — Judicial review — Natural justice — Procedural fairness –––– Applicant applied for permanent residence based on humanitarian and compassionate grounds — Officer relied on undisclosed document regarding availability of mental health care in St. Vincent in rejecting application — Officer’s decision was set aside because applicant was denied procedural fairness — Applicant then reapplied for permanent residence — Applicant provided information that integration of mental health services was very limited in St. Vincent — Applicant’s application was rejected by second officer — Second officer relied on different undisclosed study regarding availability of mental health care in St. Vincent — Applicant brought application for judicial review — Ap- plication granted — Matter was remitted to different officer for redetermination — Second officer committed same error as first officer — It was error for officer not to address applicant’s evidence, as it contradicted central finding regarding health care in St. Vincent — Officer also erred in assessing hardship that applicant would suffer, as evidence indicated applicant would be at risk of suicide if required to leave Canada — Finally, officer erred in focusing almost exclusively on availability of mental health care in St. Vincent — Second officer should have considered whether applicant’s return to St. Vincent would amount to undue, undeserved or disproportionate hardship. Cases considered by Anne Mactavish J.: Cepeda-Gutierrez v. Canada (Minister of Citizenship & Immigration) (1998), 157 F.T.R. 35, 1998 CarswellNat 1981, [1998] A.C.F. No. 1425, [1998] F.C.J. No. 1425 (Fed. T.D.) — referred to Davis v. Canada (Minister of Citizenship & Immigration) (2009), 85 Imm. L.R. (3d) 258, 2009 CarswellNat 5645, 2009 CF 1223, 2009 CarswellNat 3890, 2009 FC 1223, [2009] F.C.J. No. 1510 (F.C.) — considered 268 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

Sivapatham v. Canada (Minister of Citizenship & Immigration) (2010), 2010 CarswellNat 2216, 2010 CF 314, 89 Imm. L.R. (3d) 44, 2010 FC 314, 2010 CarswellNat 596, [2010] F.C.J. No. 366 (F.C.) — referred to

APPLICATION for judicial review of officer’s decision rejecting applicant’s application for permanent residence.

Michael Crane, for Applicant Laoura Christodoulides, for Respondent

Anne Mactavish J.:

1 Petra Davis based her application for permanent residence on humanitarian and compassionate grounds on several factors. One of these was the hardship that she would face if returned to St. Vincent because of her psychological state. Ms. Davis also asserted that her psychological problems would be exacerbated if she were separated from her father in Canada, and that she would be unable to access proper care for her mental health issues in St. Vincent. 2 Ms. Davis’ application was rejected by a PRRA Officer, who found that she had not established that she would face unusual, undeserved or disproportionate hardship if she were required to return to St. Vincent in order to apply for permanent residence. 3 For the reasons that follow, I am of the view that this decision was unreasonable. Consequently, the application for judicial review will be granted.

Analysis 4 Ms. Davis is a failed refugee claimant. Although aspects of her refugee claim were found not to be credible, the Refugee Protection Division did not appear to take issue with her claim that she had suffered significant physical and sexual abuse as a young child. In support of her PRRA application, Ms. Davis provided the Officer with psychological evidence documenting the negative impact of this abuse on her mental health. 5 This is the second time that Ms. Davis’ H&C application has been before this Court. The first decision made with respect to her application was set aside: see Davis v. Canada (Minister of Citizenship & Immigra- tion), 2009 FC 1223, [2009] F.C.J. No. 1510 (F.C.). Justice Boivin found that Ms. Davis had been denied procedural fairness when the PRRA Of- ficer relied upon a document from the World Health Organization deal- Davis v. Canada (Minister of Citizenship & Immigration) Anne Mactavish J. 269

ing with the availability of mental health care in St. Vincent, without first disclosing the document to her. 6 According to Justice Boivin, the WHO document was not commonly referred to, and was “more technical” than human rights reports. As a consequence, he was of the view that Ms. Davis should have been afforded the opportunity to respond to the document. Justice Boivin also found that the Officer erred in finding that the WHO document supported the proposition that there is adequate level of mental health in St. Vin- cent. He observed that the data contained in the WHO document showed that the mental health resources available to citizens in St. Vincent “can be below average”: at para. 25. 7 After Justice Boivin’s decision, Ms. Davis’ H&C application was referred to a different PRRA Officer for reassessment. This Officer provided Ms. Davis with a copy of the WHO document, and afforded her an opportunity to respond to it. 8 The second PRRA Officer came to the same conclusion as the first with respect to the availability of mental health care in St. Vincent. In coming to this conclusion, the second Officer did not, however, simply rely on the World Health Organization study that had been disclosed to Ms. Davis. The Officer also chose to rely on a second study - this one from the Pan American Health Organization. This document was similar in type to the WHO study, but contained more comprehensive information with respect to the availability of mental health care in St. Vincent. It was never disclosed to Ms. Davis. 9 In other words, the second Officer committed precisely the same error as the first Officer. 10 The second error committed by the PRRA Officer relates to the treatment of the evidence contained in the Pan American Health Organization document. Based upon this document, the Officer concluded that “Mental health services are being integrated in primary care, and ten acute care beds are available the main referral centre for treatment of the acutely ill psychiatric patient”. 11 However, Ms. Davis had put more recent evidence before the Officer emanating directly from the Ministry of Health in St. Vincent which led to a very different conclusion. This document stated that the “Integration of mental health services into primary care is very limited due to inadequate psychiatric surveillance and support services such as social workers, counselors, and occupational therapists”. 270 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

12 The Ministry of Health document went on to observe that there was “no structured rehabilitation programme offered at any government health institution”. The document also referred to the availability of mental health support from non-governmental organizations, but noted that “these programmes are insufficient to offset the many social problems challenging the society.” 13 Where a decision-maker refers to evidence supporting its finding in some detail, but does not mention evidence leading to the opposite conclusion, the Court may infer that the decisionmaker overlooked the contradictory evidence when making its finding of fact: Cepeda-Gutierrez v. Canada (Minister of Citizenship & Immigration), [1998] F.C.J. No. 1425, 157 F.T.R. 35 (Fed. T.D.) at paras.14-17. 14 It was an error for the Officer not to address the Ministry of Health information, given that this seemingly reliable evidence directly contradicted a central finding upon which the decision was based. 15 The Officer also erred in assessing the hardship that Ms. Davis would suffer as a result of being separated from her family in Canada. The Of- ficer noted Ms. Davis’ father’s statement that her well-being was “extremely dependant on our presence in her life and the ability to remain here in Canada, a place of safety”. After referring to Ms. Davis’ relationship with her siblings, the Officer then went on to state that “the evidence before me does not establish that severing these ties would have a significant negative impact on her that would constitute an unusual and undeserved or disproportionate hardship”. 16 This finding is problematic, as it flies in this face of the psychological evidence that was before the Officer. This evidence indicated that Ms. Davis and her father had a “close-knit, strong attachment” and that she was “highly dependant upon this man’s presence in her life”. In the opinion of the psychologist, “breaking such strong bonds would likely be emotionally devastating for her”. Indeed, it was the psychologist’s professional opinion that Ms. Davis “would be at very high risk of suicide” if she were required to leave Canada and the support of her family members behind. 17 In light of this evidence it is difficult to discern from the Officer’s reasons how the Officer came to the conclusion that severing Ms. Davis’ relationship with her family in Canada “would not have a significant negative impact on her that would constitute an unusual and undeserved or disproportionate hardship”. Davis v. Canada (Minister of Citizenship & Immigration) Anne Mactavish J. 271

18 The final, and perhaps most fundamental concern with the Officer’s decision as it relates to the mental health aspect of Ms. Davis’ H&C application is that it focuses almost exclusively on the availability of mental health care in St. Vincent. No real attention was paid to whether requiring Ms. Davis to return to St. Vincent to access that care would amount to undue, undeserved or disproportionate hardship. 19 The uncontradicted expert evidence before the PRRA Officer was that Ms. Davis would be at risk of a complete emotional breakdown if she were forced to return to St. Vincent, which could well result in her becoming suicidal. In such circumstances, it was not enough for the Of- ficer to simply look at the availability of mental health care in St. Vin- cent. As Ms. Davis’ counsel put it, even if the health care in St. Vincent was perfect, the Officer still had to determine whether putting Ms. Davis through all of this amounted to undue, undeserved or disproportionate hardship. This question was never really addressed by the Officer, further rendering the decision unreasonable.

Conclusion 20 For these reasons, the application for judicial review is allowed. 21 Citing Justice Phelan’s recent decision in Sivapatham v. Canada (Minister of Citizenship & Immigration), 2010 FC 314, [2010] F.C.J. No. 366 (F.C.), Ms. Davis urges me to direct that her H&C application be re- assessed by an Officer in any office selected by the Respondent, other than the Niagara Falls office. While I am satisfied that a different Officer should carry out the reassessment of Ms. Davis’ application, she has not persuaded me that this reassessment needs to be carried out in a different CIC office.

Certification 22 Neither party has suggested a question for certification, and none arises here.

Judgment THIS COURT ORDERS AND ADJUDGES that: 1. This application for judicial review is allowed, and the matter is remitted to a different PRRA Officer for re-determination; and 2. No serious question of general importance is certified. Application granted. 272 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

[Indexed as: Ranu v. Canada (Minister of Citizenship & Immigration)] Amandip Kaur Ranu, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-808-10 2011 FC 87 E. Heneghan J. Heard: September 14, 2010 Judgment: January 26, 2011 Immigration and citizenship –––– Exclusion and removal — Inadmissible classes — Misrepresentation — General principles –––– Applicant was citizen of India — Immigration Appeal Division of Immigration and Refugee Board found applicant was inadmissible to Canada — Board determined that applicant had gained permanent residence status in Canada under family class on basis of indirect misrepresentation, as her marriage to H was not genuine — Ap- plicant brought application for judicial review — Application granted — As regards issue of genuineness of applicant’s marriage to H, applicable standard of review was reasonableness — Board’s reasons contained number of inconsistencies in reaching conclusion that marriage between applicant and H was not genuine — Certain statements were contradictory and rendered board’s decision unintelligible — Unintelligible decision did not meet standard of reasonableness — Issue of whether board’s reasons were adequate was matter of procedural fairness that was subject to review on standard of correctness — Board did not explain how or why certain facts it listed supported finding of marriage of convenience — It was not clear why those facts supported board’s conclusion — Board failed to show its reasoning process and provided inadequate reasons. Cases considered by E. Heneghan J.: 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 Ranu v. Canada (Minister of Citizenship & Immigration) E. Heneghan J. 273

VIA Rail Canada Inc. v. Canada (National Transportation Agency) (2000), 2000 CarswellNat 2531, 26 Admin. L.R. (3d) 1, 261 N.R. 184, 193 D.L.R. (4th) 357, [2001] 2 F.C. 25, 2000 CarswellNat 3453, [2000] F.C.J. No. 1685 (Fed. C.A.) — followed Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 40(1)(a) — considered s. 44(2) — referred to s. 63(3) — referred to s. 67(1)(c) — considered

APPLICATION for judicial review of decision of Immigration Appeal Division of Immigration and Refugee Board in which Board found applicant to be inadmissible to Canada.

Hilete Stein, for Applicant Angela Marinos, for Respondent

E. Heneghan J.:

1 Ms. Amandip Kaur Ranu (the “Applicant”) seeks judicial review of the decision of the Immigration Appeal Division (the “IAD”) of the Im- migration and Refugee Board (the “Board”). In its decision dated Janu- ary 25, 2010 the Board found that the Applicant was inadmissible to Canada. The Board determined that she had gained permanent residence status in Canada under the family class on the basis of an indirect misrepresentation, that is because her marriage to Sukhdev Singh Hansra was not genuine. 2 The Applicant is a citizen of India. In September 2001, she married Mr. Hansra. Mr. Hansra sponsored the Applicant for permanent residence status as a member of the family class, and the Applicant was landed on March 30, 2003. 3 Mr. Hansra had previously been married to Ms. Kulwant Kaur, a first cousin of the Applicant. The Hansra-Kaur marriage ended in divorce in June 2001 although it appears that these two people continued to live in an intimate relationship, leading to the birth of a child on December 2, 2002. 4 The Applicant and Mr. Hansra separated two months after she had arrived in Canada, that is after the Applicant discovered the existence of 274 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

Mr. Hansra’s child. The Applicant and Mr. Hansra were divorced effective September 16, 2004. 5 The Applicant’s friends encouraged her to consider a man named Maninderjit Singh Ranu as a potential partner. Mr. Ranu and the Appli- cant exchanged photographs and letters, and met one another’s family. They were married on March 23, 2005. In June 2005, the Applicant sponsored Mr. Ranu as a member of the family class, for permanent residence in Canada. 6 On June 13, 2006, an Immigration Officer (the “Officer”) interviewed the Applicant and Mr. Hansra concerning alleged misrepresentations regarding the genuineness of their marriage. The Officer did not find her to be credible about her relationship with Mr. Hansra and referred the Ap- plicant for an inadmissibility hearing pursuant to subsection 44(2) of the Immigration and Refugee Protection Act S.C. 2001, c. 27 (the “Act”). 7 In a decision dated May 13, 2008, the Immigration Division found that the Applicant’s marriage to Mr. Hansra to be one of convenience, constituting a misrepresentation. An Exclusion Order was made against the Applicant the same day. 8 The Applicant appealed this decision before the Board, pursuant to subsection 63(3) of the Act. Both she and her former husband, Mr. Han- sra, testified before the Board. The Board found that the Applicant may have believed that her marriage to Mr. Hansra was genuine but nonetheless, the marriage was one of convenience. It found that the marriage of convenience constituted an indirect misrepresentation by the Applicant on her application for permanent residence, so she was found inadmissible pursuant to paragraph 40(1)(a) of the Act. The Board also found that there were insufficient humanitarian and compassionate considerations to warrant relief under paragraph 67(1)(c) of the Act. 9 Three issues arise in this application for judicial review: What is the applicable standard of review? Did the Board make a reasonable conclusion regarding the genuineness of the Applicant’s marriage to Mr. Hansra? Did the Board provide inadequate reasons? 10 The first matter to be addressed is the applicable standard of review. In New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190 (S.C.C.), the Supreme Court of Canada said that there are only two standards of review by which decisions of statutory decision-makers can be reviewed, that is correctness for questions of law and procedural fair- Ranu v. Canada (Minister of Citizenship & Immigration) E. Heneghan J. 275

ness and reasonableness for findings of fact and questions of mixed fact and law. 11 In Dunsmuir at para. 47, the Supreme Court held that the standard of reasonableness applies to both the decision-making process and the outcome of the decision: A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. 12 The key issue in this proceeding is the genuineness of the Applicant’s marriage to Mr. Hansra. This is a question of mixed law and fact, having regard to paragraph 40(1)(a) and paragraph 67(1)(c) of the Act, which read 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; ... 67. (1) To allow an appeal, the Immigration Appeal Division must be satisfied that, at the time that the appeal is disposed of, ... (c) other than in the case of an appeal by the Minister, taking into account the best interests of a child directly affected by the decision, sufficient humanitarian and compassionate considerations warrant special relief in light of all the circumstances of the case. 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; ... 67. (1) Il est fait droit a` l’appel sur preuve qu’au moment où il en est disposé: 276 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

... c) sauf dans le cas de l’appel du ministre, il y a — compte tenu de l’intérêt supérieur de l’enfant directement touché — des motifs d’ordre humanitaire justifiant, vu les autres circonstances de l’affaire, la prise de mesures spéciales. Accordingly, the applicable standard of review is reasonableness. 13 Turning to the second issue in this proceeding, the Board concluded that the marriage between the Applicant and Mr. Hansra was not genuine. The Board’s reasons contain a number of inconsistencies in reaching that conclusion. For example, at paragraph 9, the Board finds the Appli- cant’s testimony in regards to the arrangement of her marriage to Mr. Hansra to be “implausible and lacking in credibility”, but then, at paragraph 16, finds that the Applicant is credible. 14 The Applicant’s credibility is addressed again at paragraph 24, where the Board concludes that it was plausible that she intended to stay married to Mr. Hansra after she arrived in Canada. The Board goes on to conclude at paragraph 25 that the Applicant was likely unaware of the true nature of her marriage to Mr. Hansra. In my opinion, these statements are contradictory, and render the Board’s decision unintelligible. According to Dunsmuir, an unintelligible decision does not meet the standard of reasonableness. 15 The next issue is whether the Board’s reasons are adequate, a matter of procedural fairness that is subject to review on the standard of correctness. In VIA Rail Canada Inc. v. Canada (National Transportation Agency) (2000), [2001] 2 F.C. 25 (Fed. C.A.), the Federal Court of Ap- peal held at para. 22 that: The obligation to provide adequate reasons is not satisfied by merely reciting the submissions and evidence of the parties and stating a conclusion. Rather, the decision maker must set out its findings of fact and the principal evidence upon which those findings were based. The reasons must address the major points in issue. The reasoning process followed by the decision maker must be set out and must reflect consideration of the main relevant factors. 16 At paragraph 22 of its reasons, the Board made the following findings: In the panel’s view, the evidence of an intimate relationship with the witness’ [Mr. Hansra’s] first wife after having married the appellant is evidence that supports a finding that the marriage to the appellant was not genuine. This together with the evidence of a familial con- Ranu v. Canada (Minister of Citizenship & Immigration) E. Heneghan J. 277

nection between the appellant and Sukhdev Singh Hansra’s first wife, the appellant’s family’s inadequate background check of Suckdev Singh, the brief nature of the marriage and lack of evidence in regard to any attempts to reconcile support a finding of a marriage of convenience. 17 The Board does not explain how or why the facts listed in paragraph 22 “support a finding of a marriage of convenience”. In my opinion, it is not clear why those facts support the Board’s conclusion, particularly in light of its other conclusion that the Applicant was believable in her evidence that she intended to remain married to Mr. Hansra. As stated in VIA Rail, “the reasoning process followed by the decision maker must be set out”. In my opinion, the Board failed to show its reasoning process, and provided inadequate reasons. 18 This application for judicial review is allowed. The parties did not propose a question for certification.

Order THIS COURT ORDERS that the application for judicial review is allowed and the decision of January 25, 2010 is quashed. The matter is remitted to another panel for determination. There is no question for certification arising. Application granted. 278 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

[Indexed as: Ortiz Torres v. Canada (Minister of Citizenship & Immigration)] Luis Alberto Ortiz Torres, Laura Elena Diaz Lara, Britney Lucero Ortiz Diaz, Luis Alberto Ortiz Diaz, Maria Jose Ortiz Diaz, Applicants and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-2288-10 2011 FC 67 Michel M.J. Shore J. Heard: January 17, 2011 Judgment: January 26, 2011 Immigration and citizenship –––– Refugee protection — Appeal or redetermination of claim — Evidence –––– Principal applicant, his wife and minor children were citizens of Mexico — Principal applicant was former police officer in Mexico; he had participated in arrest of three men who made threats against each officer involved in incident — Three of applicant’s co-workers were executed within days of arrest, after being followed and receiving threatening phone calls — Principal applicant was followed in same manner and received same phone calls, causing him to temporarily move with wife and children to relative’s home — Upon returning home, interior of house had been destroyed and threatening note was found indicating that he would be next to die — Applicant left his position with police force immediately and brought application for refugee protection; application was denied — Applicants brought application for judicial review of decision — Application granted — Board’s decision was unreasonable in that it failed to properly consider all evidence before it — Board misunderstood evidence placed before it concerning principal applicant’s status as former police officer and unfairly discredited it — Based on misinterpretation of evidence, Board made findings of fact which appeared wholly unreasonable and constituted reviewable error — Board faulted principal applicant for failing to provide original identification documents without considering evidence which demonstrated that documents had been seized by Canada customs officials — In general, Board failed to consider totality of evidence tendered in support of applicants’ claim — Application remitted for redetermination by differently constituted panel. Immigration and citizenship –––– Refugee protection — Practice and procedure in refugee claims — Judicial review — Natural justice — General principles –––– Principal applicant, his wife and minor children were citizens of Ortiz Torres v. Canada 279

Mexico — Principal applicant was former police officer in Mexico; he had participated in arrest of three men who made threats against each officer involved in incident — Three of applicant’s co-workers were executed within days of arrest, after being followed and receiving threatening phone calls — Principal applicant was followed in same manner and received same phone calls, causing him to temporarily move with wife and children to relative’s home — Upon returning home, interior of house had been destroyed and threatening note was found indicating that he would be next to die — Applicant left his position with police force immediately and brought application for refugee protection; application was denied — Applicants brought application for judicial review of decision — Application granted — Board’s decision was unreasonable in that it failed to properly consider all evidence before it — Board misunderstood evidence placed before it concerning principal applicant’s status as former police officer and unfairly discredited it — Based on misinterpretation of evidence, Board made findings of fact which appeared wholly unreasonable and constituted reviewable error — Board faulted principal applicant for failing to provide original identification documents without considering evidence which demonstrated that documents had been seized by Canada customs officials — In general, Board failed to consider totality of evidence tendered in support of applicants’ claim — Application remitted for redetermination by differently constituted panel. Cases considered by Michel M.J. Shore J.: Ahangaran v. Canada (Minister of Citizenship & Immigration) (1999), 168 F.T.R. 315, 1999 CarswellNat 930, [1999] F.C.J. No. 172 (Fed. T.D.) — referred to Ali v. Canada (Minister of Citizenship & Immigration) (2003), 2003 FC 982, 2003 CarswellNat 2659, 2003 CarswellNat 4398, 31 Imm. L.R. (3d) 4, [2003] F.C.J. No. 1288 (F.C.) — referred to Armson v. Canada (Minister of Employment & Immigration) (1989), 101 N.R. 372, 9 Imm. L.R. (2d) 150, 1989 CarswellNat 91, [1989] F.C.J. No. 800 (Fed. C.A.) — referred to Avila c. Canada (Ministre de la Citoyennet´e & de l’Immigration) (2006), 2006 CarswellNat 635, 2006 CF 359, 2006 FC 359, 2006 CarswellNat 4738, (sub nom. Avila v. Canada (Minister of Citizenship and Immigration)) 295 F.T.R. 35 (Eng.), [2006] F.C.J. No. 439, [2006] A.C.F. No. 439 (F.C.) — considered Kanapathipillai v. Canada (Minister of Citizenship & Immigration) (1998), 1998 CarswellNat 1436, [1998] F.C.J. No. 1110 (Fed. T.D.) — referred to Maldonado v. Canada (Minister of Employment & Immigration) (1979), [1980] 2 F.C. 302, 1979 CarswellNat 168, 1979 CarswellNat 168F, 31 N.R. 34, [1979] F.C.J. No. 248 (Fed. C.A.) — considered 280 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

Mangat v. Canada (Minister of Citizenship & Immigration) (2003), 2003 FCT 459, 2003 CarswellNat 1009, 2003 CarswellNat 1730, 233 F.T.R. 1, 2003 CFPI 459 (Fed. T.D.) — considered New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1, 69 Admin. L.R. (4th) 1, 69 Imm. L.R. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) [2008] 1 S.C.R. 190, 844 A.P.R. 1, (sub nom. Dunsmuir v. New Brunswick) 2008 C.L.L.C. 220-020, D.T.E. 2008T-223, 329 N.B.R. (2d) 1, (sub nom. Dunsmuir v. New Brunswick) 170 L.A.C. (4th) 1, (sub nom. Dunsmuir v. New Brunswick) 291 D.L.R. (4th) 577, 2008 CarswellNB 124, 2008 CarswellNB 125, 2008 SCC 9, 64 C.C.E.L. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) 95 L.C.R. 65, [2008] S.C.J. No. 9, [2008] A.C.S. No. 9 (S.C.C.) — followed Zepeda v. Canada (Minister of Citizenship & Immigration) (2008), 2008 Car- swellNat 2671, 2008 FC 491, 2008 CarswellNat 1084, 2008 CF 491, [2009] 1 F.C.R. 237, [2008] F.C.J. No. 625 (F.C.) — considered

APPLICATION for judicial review of decision of Immigration and Refugee Board denying applicants’ application for refugee protection.

Ms Adela Crossley, for Applicants Ms Kareena R. Wilding, for Respondent

Michel M.J. Shore J.: I. Overview 1 In keeping with the Dunsmuir decision criteria safeguards as to deference, when appropriate, a complete reading of the evidence points to a clear and unequivocal understanding that the pivotal evidence has been misconstrued and, therefore, deference would not be appropriate (New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9, [2008] 1 S.C.R. 190 (S.C.C.)). 2 Key portions of the transcript of the principal Applicant’s testimony, including a corroborative substantiation of that testimony validate the principal Applicant’s statements. The Internal Flight Alternative (IFA) option does not appear available, at all, due to the paradoxical nature of the drug cartel’s operations, which appear to have placed the Applicant and his family in direct danger, due to the cartel’s pervasiveness, on the one hand, and, on the other, through its random-hit arbitrariness, wherein logic remains stymied. 3 The subjective fear of the principal Applicant (which also relates to family members associated with the principal Applicant) appears, based on objective evidence, which is fully substantiated in the Board’s own Ortiz Torres v. Canada Michel M.J. Shore J. 281

documentation. In respect of the Los Zetas organization, the Immigration and Refugee Board (Board), itself, stated: [18] Documentary evidence indicates that, while the Zetas were initially comprised of members of special forces, they now include federal, state, and local law enforcement personnel as well as civilians. The Zetas act as assassins for the Gulf Cartel. They also traffic arms, kidnap, and collect payments for the cartel on its drug routes. In addition to defending the cartel’s terrain in northern Mexico, Zetas are believed to control trafficking routes along the eastern half of the U.S.-Mexico border. Although initially found mainly along Mexico’s northern border, the Zetas now have a presence in southern Mexico, where the Gulf cartel is disputing territory previously controlled by the Ju´arez and Sinaloa cartels. A recent federal investigation found that the Zetas also engage in kidnapping, drug dealing, and money laundering. (Exhibit R/A-1, item 7.7, United States (US). 25 Febru- ary 2008. Colleen W. Cook. Congressional Research Service. CRS Report for Congress: Mexico’s Drug Cartels). 4 In the above paragraph of the Board’s decision it appears that members at every level of police forces in Mexico (federal, state and local), have joined the Los Zetas organization, an organization, which has developed intelligence links to every part of the country.

II. Introduction 5 The principal Applicant gave sworn testimony describing his position and gave a description of his duties. He explained that he was a police officer at a lower rank, as he had not, as yet, advanced up the ranks after graduating from the police academy. He provided identification documents which had been emailed to him from Mexico identifying him by name and position. He also provided several group photographs of himself in the company of police officers in full official uniform. 6 The Board ignored the preponderance of the evidence pointing out that the principal Applicant was, indeed, a police officer. Instead, it relied on a translation of an identification card stating that the principal Applicant was authorized to work as a “Police Service Technician”. 7 The principal Applicant does not read English and did not understand the English translation of the said document. As he states in his affidavit, dated May 24, 2010, the correct translation of the document should read “Higher University Technician in Preventive Police”. 8 The Board also referred to a later document provided by the principal Applicant, which referred to him as a “non-commissioned officer”. 282 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

Again, the Board may have concluded, incorrectly, from this document, that the principal Applicant was not a police officer. The Board rejected his explanation of the meaning of a non-commissioned police officer who serves within the police forces of Mexico and is considered to be part of, and integrated into, the police corps. 9 The principal Applicant has provided an affidavit from Mr. Javier Cordova Amaton, who is a permanent resident of Canada and was a police commander in Mexico, who worked professionally with the Appli- cant on a number of operatiions. Mr. Cordova stated: 2. While I was employed as a police commander in Aguascalientes, I met the principal applicant in this judicial review, Luis Alberto Ortiz Torres, in his capacity as a non-commissioned police officer. This is referred to as a “subofficial” in the Spanish language. This is the first rank in the police force that a police cadet obtains immediately after graduation from the police academy. Mr. Ortiz held this rank from 2001 until I left Mexico in 2008. (Emphasis added). (Application Record, Tab 3, Exchibit C).

III Facts 10 The Applicants are all citizens of Mexico. The principal Applicant, Mr. Luis Alberto Ortiz Torres, and the refugee claims of his wife and minor children were joined to his claim. The Applicants sought refugee protection in Canada on the basis of their fear of harm due to Mr. Ortiz Torres’ position and duties as a police officer in Mexico. The Applicants additionally claimed to be persons in need of protection because they would be subjected personally to a risk to their lives or a risk of cruel and unusual treatment or punishment in Mexico if they were forced to return to Mexico. 11 The refugee hearing for the Applicants was held on two separate dates, on July 30, 2009 and on November 23, 2009. Mr. Ortiz Torres testified at the hearings that he was employed as a state police officer in a police station in the sate of Aguascalientes from 2001. He further testified that, as a result of his duties, which included patrolling the streets, he observed a suspicious vehicle which he and as fellow officer tried to stop. A chase ensued and Mr. Ortiz Torres radioed for back-up. This incident occurred on December 26, 2008. 12 When Mr. Ortiz Torres approached the individuals in the car, three men tried to bribe him and his companion with a bag of money, which Ortiz Torres v. Canada Michel M.J. Shore J. 283

they declined. At that moment, police back-up arrived and the officers confiscated a large quantity of drugs, two weapons and cash. Mr. Ortiz Torres’ supervisor, Mr. Refugio Salazar was on the scene and conducted the arrest. The three individuals involved were arrested and taken to the police station. They made threats, stating, they would kill everyone who participated in the operation, especially, the first patrols who had inter- cepted them. 13 On December 28, 2008, Mr. Ortiz Torres’ coworkers, Mr. Miguel Angel Ramirez Montes and Mr. Obed Lopez Espinoza, were assassi- nated. These officers were the first to arrive on the scene when Mr. Ortiz Torres had radioed for police back-up. Their murder was very alarming to the officers, especially Mr. Ortiz Torres, because the day prior to their murder they had mentioned that they had been followed by a dark car and they had been threatened by telephone. 14 Mr. Ortiz Torres’ supervisor, Mr. Salazar was then murdered, in the same manner. After this murder, Mr. Ortiz Torres took precautions but he soon observed a dark car following him and he received threats on his cell phone. That same night, he took his wife and children and moved to a relative’s home. 15 The following day, upon entering his home, Mr. Ortiz Torres observed that the interior of his residence was destroyed and he found a threatening note stating that he was the next of eight officers to die. Mr. Ortiz Torres left his position immediately.

IV. Decision Under Review 16 The Board based its decision on its determination that the Applicants had not provided trustworthy or credible evidence in areas pivotal to their claims. The Board stated that, on a balance of probabilities, the principal Applicant’s allegations of being a policeman and the incidents as described by him were not credible, due to inconsistencies, omissions and implausibilities. 17 The Board also found that there was adequate state protection available to the Applicants in Mexico and that there was a viable IFA.

V. Issues 18 (1) Did the Board base its decision on erroneous findings of fact that it made in a perverse or capricious manner or without regard to the material before it? 284 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

(2) Did the Board err in finding that the Applicants would have adequate state protection in Mexico?

VI. Analysis 19 The Court is in agreement with the Applicants’ position due to error in respect of the findings of fact.

(1) Did the Board base its decision on erroneous findings of fact that it made in a perverse or capricious manner or without regard to the material before it? 20 In its assessment of credibility, the Board’s decision is to be guided by the legislative provisions and the jurisprudence. In Maldonado v. Canada (Minister of Employment & Immigration) (1979), [1980] 2 F.C. 302 (Fed. C.A.), the Court held that when an applicant swears certain facts are true, this creates a presumption that they are true unless there is valid reason to doubt their truthfulness. 21 The Board appears to have failed to understand the evidence provided that showed Mr. Ortiz Torres’ rank within the police force. Not only did the Board appear to fail to understand the evidence, but, in fact, the Board dismissed the evidence as not credible and as proof that Mr. Ortiz Torres was not a police officer. This appears to be a misinterpretation of the evidence, in respect of his being a police officer, a most determinative factor in the Board’s rejection of Mr. Ortiz Torres’ testimony. 22 The Board appears to have ignored relevant evidence, in addition to having misconstrued and misinterpreted the evidence before it, and, it made findings of fact that appear wholly unreasonable and, thus, do constitute a reviewable error. Mr. Ortiz Torres explained in detail at the second hearing date of his claim that he had instructed a friend in Mexico to send all his original documents, including his original identity documents to him in Canada, via DHL, a courier company. Mr. Ortiz Torres explained at his hearing that he was informed by DHL that the documents had been seized by Canada custom officials. Mr. Ortiz Torres even provided a DHL company tracking number for the package. 23 The Board stated that Mr. Ortiz Torres did not provide credible explanations as to the reasons he was unable to obtain originals of the identification documents of which he provided photocopies. This is also an unreasonable finding, as Mr. Ortiz Torres did everything, he could possibly do, to explain what had happened to the documents. This situation was clearly beyond his control. The fact that Citizenship and Immigration Ortiz Torres v. Canada Michel M.J. Shore J. 285

Canada (CIC) and Canada Border Services Agency (CBSA) did not have the documents, does not, in any way, demonstrate that the documents had not been seized or lost subsequent to the above explanations which had not been contradicted. 24 The Board, in fact, did not attempt to obtain the documents directly from Canada customs officials, choosing only to write to CIC and CBSA. This failure does not appear to be that of Mr. Ortiz Torres whatsoever without further evidence to the contrary. 25 In Mangat v. Canada (Minister of Citizenship & Immigration), 2003 FCT 459, 122 A.C.W.S. (3d) 541 (Fed. T.D.), this Court held, in part, at paragraph 10: However, the more important the evidence that is not mentioned specifically and analyzed in the agency’s reasons, the more willing a court may be to infer from the silence that the agency made an erroneous finding of fact “without regard to the evidence”: .... In other words, the agency’s burden of explanation increases with the rele- vance of the evidence in question to the disputed facts. Thus, a blan- ket statement that the agency has considered all the evidence will not suffice when the evidence omitted from any discussion in the reasons appears squarely to contradict the agency’s finding of fact. Moreo- ver, when the agency refers in some detail to evidence supporting its finding, but is silent on evidence pointing to the opposite conclusion, it may be easier to infer that the agency overlooked the contradictory evidence when making its finding of fact. (Emphasis in original). 26 Canadian jurisprudence indicates that an adverse finding of credibility must have a proper foundation in the evidence. Credibility findings must be explained and must be supported by the evidence. While the Board dismissed the plausibility of Mr. Ortiz Torres’ narrative, it made no specific reference to specific evidence to the contrary. Failure to lay out a clear and specific evidentiary basis is unreasonable and the result is that it renders each of the findings speculatory (Kanapathipillai v. Canada (Minister of Citizenship & Immigration) (1998), 81 A.C.W.S. (3d) 859, [1998] F.C.J. No. 1110 (Fed. T.D.) (QL/Lexis); Ali v. Canada (Minister of Citizenship & Immigration), 2003 FC 982, 125 A.C.W.S. (3d) 477 (F.C.); Armson v. Canada (Minister of Employment & Immigra- tion) (1989), 9 Imm. L.R. (2d) 150, 17 A.C.W.S. (3d) 322 (Fed. C.A.)). 27 The Board erred in failing to consider the totality of the evidence tendered in support of Mr. Ortiz Torres’ claim. The Board was required to evaluate the credibility of Mr. Ortiz Torres’ evidence concerning the sub- 286 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

stance of their refugee claim in light of all of the evidence before it (Ahangaran v. Canada (Minister of Citizenship & Immigration) (1999), 168 F.T.R. 315, 88 A.C.W.S. (3d) 856 (Fed. T.D.)). 28 In Zepeda v. Canada (Minister of Citizenship & Immigration), 2008 FC 491, [2009] 1 F.C.R. 237 (F.C.), this Court has held that “... where there is contradictory evidence before the Board, it must provide reasons why it did not consider this evidence relevant or trustworthy...” (at para 28). 29 The Board’s decision was unreasonable in that it did not properly consider all of the evidence before it, and to say why it preferred its evidence and interpretation of the evidence over the sworn evidence of Mr. Ortiz Torres. 30 The Board did not appear to have engaged in any in-depth analysis of the Applicants’ claim and of their genuine subjective fear. 31 In Avila c. Canada (Ministre de la Citoyennet´e & de l’Immigration), 2006 FC 359, 295 F.T.R. 35 (Eng.) (F.C.), Justice Luc Martineau held: [32] ... the main flaw of the impugned decision results from a complete lack of analysis of the applicant’s personal situation. It is not sufficient for the Board to indicate in its decision that it considered all the documentary evidence ... 32 The Board’s determination that there is no credible basis for Mr. Or- tiz Torres’ claim was reached by ignoring and misinterpreting the evidence before it and was additionally based on speculatory findings.

(2) Did the Board err in finding that the Applicants would have adequate state protection in Mexico? 33 The Board, once it decided that Mr. Ortiz Torres was not a police officer in Mexico, engaged in a very generic analysis of state protection available to the Applicants in Mexico. It renders the decision unreasonable, as the personal circumstances of Mr. Ortiz Torres, namely his identity as a police officer and the danger that he faced as such, was not fully considered.

VII. Conclusion 34 For all of the above reasons, the Applicants’ application for judicial review is allowed and the matter is remitted for redetermination by a differently constituted panel. Ortiz Torres v. Canada Michel M.J. Shore J. 287

Judgment THIS COURT’S JUDGMENT is that the Applicants’ application for judicial review be allowed and the matter be remitted for redetermination by a differently constituted panel. No question to be certified. Application granted. 288 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

[Indexed as: Beharry v. Canada (Minister of Citizenship & Immigration)] Estardai Beharry, Jonathan Neville Beharry, Mohani Budhan, Applicants and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-3470-10 2011 FC 111 Anne Mactavish J. Heard: January 27, 2011 Judgment: February 1, 2011 Immigration and citizenship –––– Refugee protection — Elements of protected refugee status — Protection of country of nationality — Sufficiency of state protection –––– B and her two children (collectively, “applicants”) filed application for Pre-Removal Risk Assessment (PRRA) in which they asserted that they would be at risk if they returned to Guyana — Their refugee claim had previously been rejected on basis that adequate state protection was available for family in Guyana — Board had, however, accepted that family had been subjected to brutal home invasion, during which B was physically and sexually assaulted — PRRA officer concluded that there was insufficient evidence to show that adequate state protection would not be provided to applicants, if required — Applicants brought application for judicial review — Application granted — PRRA application by failed refugee claimants was not to be appeal or reconsideration of Board’s decision to reject claim for refugee protection — That said, PRRA officer may properly have regard to evidence regarding current state of affairs in country of removal — Evidence before PRRA officer indicated that rate of violent crime in Guyana had continued to increase since decision in applicants’ refugee case was rendered — PRRA officer focused on efforts made by government of Guyana to combat crime and did not properly assess whether those efforts had actually translated into adequate state protection — Moreover, evidence relied upon by PRRA officer did not support finding that state protection in Guyana was adequate — Indeed, it led to opposite conclusion — As result, PRRA officer’s finding that adequate state protection would be available to applicants in Guyana was not reasonable. Immigration and citizenship –––– Refugee protection — Removal — Pre- Removal Risk Assessment (PRRA) –––– B and her two children (collectively, “applicants”) filed application for Pre-Removal Risk Assessment (PRRA) in which they asserted that they would be at risk if they returned to Guyana — Beharry v. Canada Anne Mactavish J. 289

Their refugee claim had previously been rejected on basis that adequate state protection was available for family in Guyana — Board had, however, accepted that family had been subjected to brutal home invasion, during which B was physically and sexually assaulted — PRRA officer concluded that there was insufficient evidence to show that adequate state protection would not be provided to applicants, if required — Applicants brought application for judicial review — Application granted — PRRA application by failed refugee claimants was not to be appeal or reconsideration of Board’s decision to reject claim for refugee protection — That said, PRRA officer may properly have regard to evidence regarding current state of affairs in country of removal — Evidence before PRRA officer indicated that rate of violent crime in Guyana had continued to increase since decision in applicants’ refugee case was rendered — PRRA officer focused on efforts made by government of Guyana to combat crime and did not properly assess whether those efforts had actually translated into adequate state protection — Moreover, evidence relied upon by PRRA officer did not support finding that state protection in Guyana was adequate — Indeed, it led to opposite conclusion — As result, PRRA officer’s finding that adequate state protection would be available to applicants in Guyana was not reasonable. Immigration and citizenship –––– Refugee protection — Practice and procedure in refugee claims — Refugee hearings — Role of hearing officer. Cases considered by Anne Mactavish J.: Carrillo v. Canada (Minister of Citizenship & Immigration) (2008), 2008 FCA 94, 69 Imm. L.R. (3d) 309, 2008 CAF 94, (sub nom. Flores Carrillo v. Canada (Minister of Citizenship & Immigration)) [2008] 4 F.C.R. 636, 2008 CarswellNat 1953, 2008 CarswellNat 605, 377 N.R. 393, [2008] F.C.J. No. 399 (F.C.A.) — referred to Raza v. Canada (Minister of Citizenship & Immigration) (2007), 2007 Car- swellNat 4905, 2007 FCA 385, 68 Admin. L.R. (4th) 225, 2007 CarswellNat 6368, 2007 CAF 385, 370 N.R. 344, 289 D.L.R. (4th) 675, [2007] F.C.J. No. 1632 (F.C.A.) — referred to

APPLICATION for judicial review of decision of Pre-Removal Risk Assess- ment officer.

Krassina Kostadinov, for Applicants Veronica Cham, for Respondent

Anne Mactavish J.:

1 Estardai Beharry and her two children filed an application for a Pre- removal Risk Assessment in which they asserted that they would be at 290 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

risk if they returned to Guyana. Their refugee claim had previously been rejected on the basis that adequate state protection was available for the family in Guyana. The Board did, however, accept that the family had been subjected to a brutal home invasion, during which Ms. Beharry was physically and sexually assaulted. 2 The PRRA Officer concluded that there was insufficient evidence to show that adequate state protection would not be provided to the family, if required. For the reasons that follow, I find that this decision was unreasonable.

The Availability of State Protection 3 The applicants submit that the evidence of increasing levels of violent crime demonstrated that the situation in Guyana had deteriorated since the time of their refugee decision to the extent that the Board’s state protection finding should have been revisited. 4 A PRRA application by failed refugee claimants is not to be an appeal or reconsideration of the Board’s decision to reject the claim for refugee protection: see Raza v. Canada (Minister of Citizenship & Immi- gration), 2007 FCA 385, [2007] F.C.J. No. 1632 (F.C.A.), at para. 12. That said, a PRRA Officer may properly have regard to evidence regarding the current state of affairs in the country of removal: Raza, at para. 13. 5 The decision in the applicants’ refugee case was rendered in 2005. The evidence before the PRRA Officer indicated that the rate of violent crime in Guyana has continued to increase since then. For example, in just one year, there had been a 9% increase in overall crime in Guyana, and a 21% increase in armed robberies. 6 The PRRA Officer noted that the applicants feared criminality and violence in Guyana. The Officer reviewed current evidence as to the Guyanese security situation, and found that the applicants had provided insufficient persuasive evidence to rebut the presumption of state protection. 7 The evidence cited by the PRRA Officer to support this finding stated that: • Violent crime is a major problem in Guyana, and the crime rate is increasing; • The Guyana Police Force lacks resources to effectively combat serious crime; Beharry v. Canada Anne Mactavish J. 291

• Poor training and equipment and acute budgetary constraints severely limited the effectiveness of the Guyana Police Force, which is responsible for maintaining internal security; • Public confidence in the Guyana Police Force is low; • The Police Complaints Authority’s efforts to conduct impartial and transparent assessments of accusations against the police were obstructed by staff shortages and the lack of an investigative unit; • “Racial polarization” has eroded law enforcement in Guyana and many Indo-Guyanese complain that they are victimized by the predominantly Afro-Guyanese police; • The judicial system in Guyana is independent, but is impeded by staffing shortages and lack of funding; • Although government spending aimed at combating crime had in- creased, little progress had been made on the key provisions of the multi-year Security Sector Reform plan; • Guyana lacks a coherent and prioritized national security strategy, and by 2009, the government had not adequately implemented proposed security reforms. 8 From this, the Officer concluded that the government of Guyana had “made efforts” to address crime in Guyana. 9 It is apparent from the decision that the Officer focused on the efforts made by the government of Guyana to combat crime, and did not properly assess whether those efforts have actually translated into adequate state protection: see Carrillo v. Canada (Minister of Citizenship & Immi- gration), 2008 FCA 94, [2008] F.C.J. No. 399 (F.C.A.). 10 Moreover, the evidence relied upon by the Officer simply does not support a finding that state protection in Guyana is adequate. Indeed, it leads to the opposite conclusion. As a result the Officer’s finding that adequate state protection would be available to the applicants in Guyana was not reasonable. 11 In light of my conclusion on this issue, it is not necessary to address the other issues raised by the applicants.

Conclusion 12 For these reasons, the application for judicial review is allowed. 292 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

Certification 13 Neither party has suggested a question for certification, and none arises here.

[Indexed as: Rubiano v. Canada (Minister of Citizenship & Immigration)] Carlos Hernan Oliveros Rubiano, Applicant and The Minister of Citizenship and Immigration and the Minister of Public Safety and Emergency Preparedness, Respondents Federal Court Docket: IMM-1017-10 2011 FC 106 John A. O’Keefe J. Heard: September 22, 2010 Judgment: February 2, 2011 Immigration and citizenship –––– Refugee protection — Elements of protected refugee status — Protection of country of nationality — Sufficiency of state protection –––– Claimant was Colombian citizen — Claimant worked at bank and was target of extortion scheme by Revolutionary Armed Forces of Co- lombia (FARC) and United Self-Defence Forces of Colombia (AUC) — Claim- ant was often approached by FARC and AUC for money and for banking information about others — Two of claimant’s cousins were murdered and over several years claimant received phone calls continuing to demanding financial records — Claimant entered Canada illegally and attempted to make refugee claim which was refused — Claimant filed Pre-Removal Risk Assessment (PRRA) — PRRA officer concluded that claimant did not exhaust all avenues of state protection available to him and did not provide clear and convincing evidence that state was unable to protect him — Claimant brought application for judicial review — Application granted — Claimant did approach authorities for protection on several occasions — Claimant stated in his PRRA application that he had approached army for assistance with extortion threats and he had filed report with office of public prosecutor — Claimant further submitted documentary evidence that indicated that more than 60 members of Colombian Congress were under investigation for collaborating with paramilitaries — Given level of corruption in government, officer’s finding that Columbia is multiparty democratic state should not necessarily signify that it is able to protect its citizens — Officer erred in law by requiring claimant to show that he had exhausted all avenues of state protection. 294 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

Cases considered by John A. O’Keefe 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.) — considered Gilvaja v. Canada (Minister of Citizenship & Immigration) (2009), 2009 FC 598, 2009 CarswellNat 1725, 2009 CarswellNat 4051, 2009 CF 598, 81 Imm. L.R. (3d) 165 (F.C.) — referred to Iboude c. Canada (Ministre de la Citoyenneté & de l’Immigration) (2005), 2005 CarswellNat 3005, 2005 CF 1316, 2005 FC 1316, 2005 CarswellNat 5745, [2005] F.C.J. No. 1595 (F.C.) — considered Kadenko v. Canada (Solicitor General) (1996), 1996 CarswellNat 2216, (sub nom. Kadenko v. Canada (Solliciteur général)) 206 N.R. 272, (sub nom. Kadenko v. Canada (Solliciteur général)) 124 F.T.R. 160 (note), 143 D.L.R. (4th) 532, [1996] F.C.J. No. 1376, [1996] A.C.F. No. 1376 (Fed. C.A.) — considered Katwaru (Litigation Guardian of) v. Canada (Minister of Citizenship & Immi- gration) (2007), 2007 FC 612, 2007 CarswellNat 1563, 62 Imm. L.R. (3d) 140, 2007 CarswellNat 4997, 2007 CF 612 (F.C.) — considered Wang v. Canada (Minister of Citizenship & Immigration) (2010), 2010 CF 799, 2010 CarswellNat 3410, 2010 FC 799, 2010 CarswellNat 2613, [2010] F.C.J. No. 980, [2010] A.C.F. No. 980 (F.C.) — referred to Ward v. Canada (Minister of Employment & Immigration) (1993), (sub nom. Canada (Attorney General) v. Ward) 103 D.L.R. (4th) 1, (sub nom. Canada (Attorney General) v. Ward) 153 N.R. 321, 20 Imm. L.R. (2d) 85, 1993 Car- swellNat 90, 1993 CarswellNat 1382, [1997] I.N.L.R. 42, (sub nom. Canada (Attorney General) v. Ward) [1993] 2 S.C.R. 689, [1993] S.C.J. No. 74, EYB 1993-67292 (S.C.C.) — considered Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 96 — referred to s. 96 “réfugié” — referred to s. 97(1) — referred to s. 72(1) — pursuant to s. 113(b) — referred to Regulations considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Immigration and Refugee Protection Regulations, SOR/2002-227 s. 167 — referred to

APPLICATION by claimant for judicial review of decision of officer deciding his Pre-Removal Risk Assessment in negative. Rubiano v. Canada John A. O’Keefe J. 295

Jonathan E. Fedder, for Applicant Kareena Wilding, Veronica Cham, for Respondents

John A. O’Keefe J.:

1 This is an application pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act), for judicial review of a decision of a pre-removal risk assessment officer (the officer), dated January 22, 2010, wherein the officer determined that the applicant would not be subject to risk of torture, risk to life or risk of cruel and unusual treatment or punishment if returned to Colombia. 2 The applicant requests an order quashing the decision of the officer and remitting the matter back for redetermination by a different officer in accordance with such directions as the Court considers appropriate.

Background 3 Carlos Hernan Oliveros Rubiano (the applicant) was born on March 14, 1968 and is a citizen of Colombia. 4 The applicant was one of the targets of an extortion scheme by the Revolutionary Armed Forces of Colombia (FARC). The applicant states that he and his extended family were often approached for money by the FARC and the United Self-Defence Forces of Colombia (AUC), which they refused to provide. In October 2001, the applicant and his cousins informed the Colombian Army about the attempted extortion. In its response, the Colombian Army killed one of the perpetrators of the extortion attempt. Subsequently, the applicant was detained allegedly by three armed members of FARC who requested banking and personal information about his cousin, Alfonso Cruz, and other businessmen. The applicant worked as assistant manager of operations at the Bank Bilbao Viz- caya Argentaria Colombia. It was because of this position and his access to financial records, that the applicant believes FARC demanded this information from him. In 2002, Alfonso Cruz and two of the applicant’s other cousins were murdered. Over the period of several years, the applicant received phone calls continuing to demand financial records and indicating that he knew the consequences of not cooperating with the FARC. 5 In 2005, the applicant was shot at by two men on a motorcycle while driving a taxi. He went to the Unidad de Reaccion Inmediata de la Fis- 296 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

calia (URI), the Office of the Public Prosecutor, and filed a report on the incident. He was told that the URI would undertake an investigation. 6 The applicant and his family fled to Ecuador in September 2005. They did not file for asylum because they found out that they were not able to work or get financial help with accommodation. They returned to Colombia after ten days. 7 In April 2006, the applicant and his family entered the United States on visitor visas. On April 26, 2006, the applicant sought refugee protection at the Canada/U.S. border. He was prevented from making an application because of the Safe Third Country Agreement. The applicant applied for and was denied refugee protection in the United States. He then entered Canada illegally and attempted to make a refugee claim which was refused. 8 The applicant filed a pre-removal risk assessment (PRRA) in Novem- ber 2009. In the PRRA application he requested an oral hearing, which was not afforded to him.

Officer’s Decision 9 The officer concluded that the applicant had provided insufficient objective evidence to substantiate the risk in his application. The officer found that the applicant does not face a danger of torture, a risk to life, or a risk of cruel and unusual treatment or punishment and is not a person in need of protection. 10 The officer found that the applicant had not established that he faced an individualized risk. While the applicant’s cousins had been murdered, these people were land owners or employees of land owners and there was insufficient evidence that the applicant was similarly situated to these victims. The officer found that the evidence did not show that the applicant was a person of interest to FARC or AUC. The officer did not find that the applicant was similarly situated to those who are actively pursued by FARC or the National Liberation Army (ELN). 11 The officer gave minimal weight to affidavits submitted by the applicant’s mother and cousins. He found that these people had a vested interest in a positive outcome of the hearing for the applicant. He found that these affidavits establish the familial relationship between the applicant and his cousins who were murdered and they restate the occurrences alleged by the applicant but that they are not supported by objective evidence that the applicant is personally at risk of harm in Colombia. Rubiano v. Canada John A. O’Keefe J. 297

12 The officer found that the applicant’s actions were not consistent with someone who fears for his and his family’s life. The applicant fled Co- lombia for Ecuador to seek asylum but returned to Colombia after ten days. The officer found that Ecuador had a developed refugee protection system. 13 The officer found that the applicant’s mother and brother continue to reside in Colombia and are not victims of harassment, crime or violence. 14 The officer found that the applicant had not established that the Co- lombian state was unable or unwilling to protect him. He found that the URI interviewed the applicant regarding the incident when he was shot at and made a report, indicating that it would investigate. The officer found this was evidence that the authorities in Colombia are willing to assist citizens when approached. The officer found that the applicant did not exhaust all avenues of state protection available to him and did not provide clear and convincing evidence that the state was unable to protect him. 15 The officer then reviewed the country condition information on Co- lombia. He found that Colombia is a multiparty democracy which suffers from a sustained internal armed conflict. He found that groups such as FARC and ELN commit numerous human rights abuses. He noted that the courts have been investigating the Colombian Congress members’ collaboration with these paramilitaries.

Issues 16 The applicant submitted the following issues for consideration: 1. The decision of the PRRA officer was on the credibility of the applicant (without the word being explicitly used) and the officer thereby erred in not acceding to the applicant’s request for a hearing. 2. The PRRA decision unreasonable in that the officer failed to consider relevant and probative evidence of the risks faced by the applicant, or if such evidence was considered, no explanation was given for rejecting such evidence as probative of the applicant’s case. 3. The PRRA officer applied an incorrect standard to his assessment of the availability of state protection to the applicant. 17 I would rephrase the issues as follows: 1. What is the appropriate standard of review? 298 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

2. Did the PRRA officer err by not holding a hearing pursuant to subsection 113(b) of the Act? 3. Did the officer ignore probative evidence? 4. Did the officer apply the wrong test in assessing the availability of state protection?

Applicant’s Written Submissions 18 The applicant submits that the issue of an oral hearing is a question of procedural fairness and should be assessed on the standard of correctness. For the other issues, the appropriate standard is reasonableness. 19 The applicant submits that an oral hearing is required when an issue of credibility is central to the decision in question. Although the officer did not state that he explicitly rejected the applicant’s credibility, his reference to insufficient objective evidence and the minimal weight given to the applicant’s documentary evidence were essentially findings of credibility. Further, the applicant submits that credibility is in issue because the officer questioned the applicant’s subjective fear and refused to accord weight to the applicant’s story without corroborating evidence. As such, an oral hearing should have been provided. 20 The applicant submits that the officer failed to consider all the evidence before him. The officer found that the applicant was not similarly situated to the members of his family who were murdered. He further found that the applicant was not a person of interest to the FARC or AUC. However, both of these issues were discussed in the affidavits from the applicant’s mother and cousin. The officer did consider these affidavits and gave them minimal weight because they were prepared by relatives who had a vested interested in the outcome of the proceedings. The applicant submits that the case law has established that the mere fact that evidence is from relatives who want to assist the applicant in the proceedings is not a reason for assigning it minimal weight. 21 The applicant submits that the officer applied an incorrect standard in his analysis of the availability of state protection. The officer indicated that the applicant did not exhaust all avenues of state protection available to him. The applicant submits that the test is whether the applicant made reasonable efforts to seek state protection. In addition, the applicant submits that simply because the officer found that Colombia is a multiparty democracy, does not mean that it can protect its nationals. The extensive corruption in the Colombian government demonstrates that it cannot provide the same protection as other democratic states. The applicant sub- Rubiano v. Canada John A. O’Keefe J. 299

mits that the officer recited the country conditions of Colombia and stated his conclusion without providing any analysis of how the country conditions affected the applicant’s ability to access state protection.

Respondents’ Written Submissions 22 The respondents submit that the applicant failed to establish a personalized risk of harm. The officer reasonably made the following findings which demonstrate the lack of personalized risk: the applicant was in a different profession than those targeted by the FARC, his mother and brother continue to reside in Colombia without issue, the applicant has not proven he is a person of interest to the FARC and the applicant’s profile does not fit that of people commonly targeted by the FARC. 23 The respondents submit that the officer considered the affidavits of the applicant’s mother and cousins and gave them little weight. The officer reviewed the contents of the affidavits but found that they only re- stated the occurrences alleged by the applicant and outlined his lineage but were not supported by objective evidence. The respondent submits that it is open to an officer to give affidavits little weight when they are self-serving and not from objective sources. 24 The respondents submit that the applicant did not show that he took reasonable steps to seek state protection. The applicant only approached the URI after three years of harassment and threats and then he left Co- lombia eleven days after he filed a report with the URI. The respondents submit that the officer’s reasons must be read as a whole. While the officer found that the applicant must exhaust all possible avenues of protection, it is evident from the reasons that he was concerned that the applicant had failed to provide clear and convincing evidence of his reasonable efforts to seek state protection. 25 The respondents submit that the applicant did not establish subjective fear. The officer determined that the applicant’s actions were inconsistent with a person who fears for his life. He could have sought asylum in Ecuador but failed to do so. 26 Finally, the respondents submit that the officer did not err in not providing an oral hearing. In the determination of the PRRA application, an oral hearing is exceptional. The officer did not find that the applicant lacked credibility; the officer found that the applicant had failed to establish through his documentary evidence that he faced a personalized risk of harm. The officer is permitted to determine the issue of the weight given to the evidence before the issue of credibility. The officer found 300 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

that even if the applicant’s evidence was credible, the applicant had tendered insufficient evidence of probative value to establish a personal risk, so the officer was not obligated to hold an oral hearing.

Analysis and Decision Issue 1 What is the appropriate standard of review? 27 The standard of review for an ultimate decision on a PRRA is that of reasonableness. However, any issues of procedural fairness will be determined on the correctness standard (see Wang v. Canada (Minister of Citizenship & Immigration), 2010 FC 799 (F.C.), at paragraph 11). 28 The applicant submits that the decision not to hold an oral hearing is one of procedural fairness. Generally, the right to be heard is an issue of procedural fairness. However, as stated by Mr. Justice Yves de Montigny in Iboude c. Canada (Ministre de la Citoyennet´e & de l’Immigration), 2005 FC 1316 (F.C.) at paragraph 12, paragraph 113(b) of the Act is clear that the Minister is not obligated to grant a hearing. The PRRA officer has the discretion to hold a hearing based on an application of the facts at issue to the factors outlined in section 167 of the Immigration and Refugee Protection Regulations, SOR/2002-227 (the Regulations). Thus, this is generally a question of mixed fact and law and should be reviewed on the standard of reasonableness. 29 Notwithstanding this analysis, in the case at bar, there is no indication that the officer turned his mind to the issue of whether to hold an oral hearing and this could be a breach of procedural fairness. As such, the absence of an oral hearing in this case will be reviewed on the standard of correctness. The other issues raised will be reviewed on the standard of reasonableness. 30 I wish to first deal with Issue 4.

Issue 4 Did the officer apply the wrong test in assessing the availability of state protection? 31 The applicant submits that the officer erred in law by applying the wrong test for assessing the availability of state protection in Colombia. 32 In Ward v. Canada (Minister of Employment & Immigration), [1993] 2 S.C.R. 689 (S.C.C.), the Supreme Court of Canada held that the pre- Rubiano v. Canada John A. O’Keefe J. 301

sumption of state protection may only be rebutted through clear and convincing evidence of the state’s inability to provide protection. This evidence may include testimony of similarly situated individuals to the applicant let down by the state protection arrangement or the applicant’s own testimony of the incidents where the state did not provide protection. 33 The Federal Court of Appeal added to the test in Ward above, that where the state is a functioning democracy, the presence of democratic institutions will increase the burden on the claimant to prove that the claimant exhausted “... all the courses of action open to him or her” (see Kadenko v. Canada (Solicitor General) (1996), 143 D.L.R. (4th) 532, [1996] F.C.J. No. 1376 (Fed. C.A.) at paragraph 5). 34 However, Mr. Justice Michael Kelen held in Farias v. Canada (Minister of Citizenship & Immigration), 2008 FC 1035, 75 Imm. L.R. (3d) 31 (F.C.) at paragraph 19 that: ...recent Federal Court jurisprudence has held that Kadenko cannot be interpreted as requiring refugee claimants to exhaust “every conceivable recourse” available to them in order to rebut the presumption of state protection. This is especially true where the state is alleged to be involved in the persecution. For example, in Chaves, above, Madam Justice Tremblay-Lamer held at paragraph 15: ¶15 In my view, however, [Ward], supra and Kadenko, supra, cannot be interpreted to suggest that an individual will be required to exhaust all avenues before the presumption of state protection can be rebutted.... Rather, where agents of the state are themselves the source of the persecution in question, and where the applicant’s credibility is not undermined, the applicant can successfully re- but the presumption of state protection without exhausting every conceivable recourse in the country. The very fact that the agents of the state are the alleged perpetrators of persecution undercuts the apparent democratic nature of the state’s institutions, and correspondingly, the burden of proof.... 35 Likewise, Federal Court jurisprudence has held that democracy alone does not ensure effective state protection (see Katwaru (Litigation Guardian of) v. Canada (Minister of Citizenship & Immigration), 2007 FC 612 (F.C.), at paragraph 21). 36 The officer in this case stated that “the onus is on the applicant to show that he has exhausted all avenues of redress available to him in his 302 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

country of nationality.” Finally, he reiterated that, “in the case before me, the applicant has failed to indicate that he has in fact exhausted all avenues available to him in his country of nationality”. 37 The applicant stated in his PRRA application that he had approached the Colombian Army for assistance with the extortion threats he received from the FARC and AUC. He also submitted that he had filed a report with the URI, the Office of the Public Prosecutor, when he was shot at in a taxicab, allegedly by members of FARC. It is evident that the applicant did approach the authorities for protection on several occasions. 38 The applicant further submitted documentary evidence that indicated that more than 60 members of the Colombian Congress are under investigation for collaborating with the paramilitaries. Given this level of corruption in the government, the officer’s finding that Colombia is a multiparty democratic state should not necessarily signify that it is able to protect its citizens (see Gilvaja v. Canada (Minister of Citizenship & Im- migration), 2009 FC 598, 81 Imm. L.R. (3d) 165 (F.C.) at paragraph 43). 39 Based on this evidence, the officer erred in law by requiring the applicant to show that he had exhausted all avenues of state protection, as the applicant did establish that he had made reasonable efforts to seek state protection in a state where the authorities are not often able to provide protection to their nationals. 40 As a result, the application for judicial review must be allowed and the matter is referred to a different officer for redetermination. 41 Because of my finding on this issue, I need not deal with the other issues. 42 As a result of my decision, neither party wished to submit a proposed serious question of general importance for my consideration.

Judgment 43 IT IS ORDERED that the application for judicial review must be allowed and the matter is referred to a different officer for redetermination. Application granted. Rubiano v. Canada John A. O’Keefe J. 303

Annex Relevant Statutory Provisions Immigration and Refugee Protection Act, 2001, c. 27 96. A Convention refugee is a person who, by reason of a well- founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion, (a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or (b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country. 97.(1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual 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. 113. Consideration of an application for protection shall be as follows: ... (b) a hearing may be held if the Minister, on the basis of prescribed factors, is of the opinion that a hearing is required; 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 304 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

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. 97.(1) A qualité de personne a` protéger la personne qui se trouve au Canada et serait personnellement, par son renvoi vers tout pays dont elle a la nationalité ou, si elle n’a pas de nationalité, dans lequel elle avait sa résidence habituelle, exposée: a) soit au risque, s’il y a des motifs sérieux de le croire, d’être soumise a` la torture au sens de l’article premier de la Conven- tion contre la torture; b) soit a` une menace a` sa vie ou au risque de traitements ou peines cruels et inusités dans le cas suivant: (i) elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays, (ii) elle y est exposée en tout lieu de ce pays alors que d’autres personnes originaires de ce pays ou qui s’y trouvent ne le sont généralement pas, (iii) la menace ou le risque ne résulte pas de sanctions légi- times — sauf celles infligées au mépris des normes in- ternationales — et inhérents a` celles-ci ou occasionnés par elles, (iv) la menace ou le risque ne résulte pas de l’incapacité du pays de fournir des soins médicaux ou de santé adéquats. 113. Il est disposé de la demande comme il suit: ... b) une audience peut etreˆ tenue si le ministre l’estime requis compte tenu des facteurs réglementaires; Immigration and Refugee Protection Regulations, SOR/2002-227 167. For the purpose of determining whether a hearing is required under paragraph 113(b) of the Act, the factors are the following: (a) whether there is evidence that raises a serious issue of the applicant’s credibility and is related to the factors set out in sections 96 and 97 of the Act; Rubiano v. Canada John A. O’Keefe J. 305

(b) whether the evidence is central to the decision with respect to the application for protection; and (c) whether the evidence, if accepted, would justify allowing the application for protection. 167. Pour l’application de l’alinéa 113b) de la Loi, les facteurs ci- après servent a` décider si la tenue d’une audience est requise: a) l’existence d’éléments de preuve relatifs aux el´´ ements men- tionnés aux articles 96 et 97 de la Loi qui soulèvent une question importante en ce qui concerne la crédibilité du demandeur; b) l’importance de ces el´´ ements de preuve pour la prise de la décision relative a` la demande de protection; c) la question de savoir si ces el´´ ements de preuve, a` supposer qu’ils soient admis, justifieraient que soit accordée la protection. 306 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

[Indexed as: Gunaratnam v. Canada (Minister of Citizenship & Immigration)] Anicetus Regan Gunaratnam, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-3323-10 2011 FC 122 Anne Mactavish J. Heard: January 26, 2011 Judgment: February 3, 2011 Immigration and citizenship –––– Refugee protection — Practice and procedure in refugee claims — Judicial review — Natural justice — Procedural fairness –––– Disclosure of documents — Applicant was young Tamil, originally from north of Sri Lanka — Applicant claimed to be at risk from paramilitary group — Applicant brought unsuccessful refugee claim — Applicant then applied for Pre-Removal Risk Assessment (PRRA), but officer dismissed application — Officer consulted several documents that post-dated applicant’s last set of submissions and did not draw this information to applicant’s attention or give him opportunity to respond to it — Applicant brought application for judicial review of officer’s decision — Application granted — Applicant was denied procedural fairness in PRRA process — Developments in civil war that occurred in 2009 were new, major and significant, as they related to risk to Tamils — Fairness required that applicant be informed of novel and significant information which evidenced changes in general country conditions. Cases considered by Anne Mactavish J.: Mahendran v. Canada (Minister of Citizenship & Immigration) (2009), 2009 FC 1236, 2009 CarswellNat 4164, 86 Imm. L.R. (3d) 30, 2009 CF 1236, 2009 CarswellNat 5348, [2009] F.C.J. No. 1554, [2009] A.C.F. No. 1554 (F.C.) — considered Mancia v. Canada (Minister of Citizenship & Immigration) (1998), [1998] 3 F.C. 461, 45 Imm. L.R. (2d) 131, 1998 CarswellNat 2069, 161 D.L.R. (4th) 488, 226 N.R. 134, 147 F.T.R. 307 (note), 1998 CarswellNat 811, [1998] F.C.J. No. 565 (Fed. C.A.) — considered Nallathamby v. Canada (Minister of Citizenship & Immigration) (2010), 2010 CarswellNat 5096, 2010 CF 1131, 2010 FC 1131, 2010 CarswellNat 4350, [2010] F.C.J. No. 1405, [2010] A.C.F. No. 1405 (F.C.) — considered Gunaratnam v. Canada Anne Mactavish J. 307

Pathmanathan v. Canada (Minister of Citizenship & Immigration) (2009), 2009 CarswellNat 2904, 2009 FC 885, 2009 CarswellNat 5174, 2009 CF 885, 85 Imm. L.R. (3d) 108, [2010] 3 F.C.R. 395 (F.C.) — distinguished Raza v. Canada (Minister of Citizenship & Immigration) (2007), 2007 Car- swellNat 4905, 2007 FCA 385, 68 Admin. L.R. (4th) 225, 2007 CarswellNat 6368, 2007 CAF 385, 370 N.R. 344, 289 D.L.R. (4th) 675, [2007] F.C.J. No. 1632 (F.C.A.) — followed

APPLICATION for judicial review of officer’s decision rejecting applicant’s application for Pre-Removal Risk Assessment.

Barbara Jackman, for Applicant Ada Mok, for Respondent

Anne Mactavish J.:

1 Anicetus Regan Gunaratnam’s application for a Pre-removal Risk As- sessment was refused on the grounds that he had not shown that he would be at risk in Sri Lanka. 2 Mr. Gunaratnam challenges the PRRA Officer’s decision, asserting that the Officer erred in discounting the new evidence that he had provided in support of his claim, and in failing to allow him to explain a discrepancy in the information that he had submitted. The Officer further erred, Mr. Gunaratnam says, by failing to provide him with an opportunity to address documentary evidence relating to novel and significant changes to country conditions within Sri Lanka. 3 For the reasons that follow, the application will be allowed.

The Officer’s Treatment of the “New” Evidence 4 Mr. Gunaratnam is a young Tamil, originally from the north of Sri Lanka. He claimed to be at risk in Sri Lanka from a paramilitary group known as the Eelam Peoples Democratic Party (EPDP), as he had been wrongly accused by a former classmate of being a supporter of the LTTE. The Refugee Protection Division found there to be no credible basis for his claim. 5 Mr. Gunaratnam’s PRRA application was based upon the same allegations of risk as were advanced in his refugee claim. He provided several letters from Sri Lanka in support of his PRRA application: one from the family priest, one from a Member of Parliament and several from Mr. Gunaratnam’s father’s lawyer. These letters refer to ongoing threats pur- 308 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

portedly made against Mr. Gunaratnam and his family, as well as the unsafe situation in Sri Lanka for Tamils generally. 6 The Officer refused to consider the letters, to the extent that they referred to events ostensibly occurring prior to Mr. Gunaratnam’s departure from Sri Lanka. Mr. Gunaratnam conceded at the hearing that this was entirely appropriate, given that these portions of the letters clearly did not meet the test for new evidence established by the Federal Court of Appeal in Raza v. Canada (Minister of Citizenship & Immigration), 2007 FCA 385, [2007] F.C.J. No. 1632 (F.C.A.). 7 The Officer did consider the letters to the extent that they referred to ongoing threats against Mr. Gunaratnam and his parents. Given that none of the authors appeared to have any first-hand knowledge of the threats, it was not unreasonable for the Officer to give the letters little weight. 8 Mr. Gunaratnam also says that the Officer erred in failing to consider the evidence in the letters with respect to the general risk environment for young Tamils in Sri Lanka. However, the Officer clearly stated that “the documentary evidence” demonstrated that the Tamil minority in Sri Lanka had experienced many problems with the Sinhalese majority, which were ongoing. In light of this, I am not persuaded that the general country condition information contained in the letters was overlooked.

The Issue of Mr. Gunaratnam’s Parent’s Address 9 Mr. Gunaratnam says that his parents have been living in hiding because of on-going harassment by the EPDP. However, the PRRA Officer noted that Mr. Gunaratnam had given the same home address for his parents in 2009 as had been provided to the Refugee Protection Division in 2005. The Officer found that this called his claim that his parents had been forced to live in hiding into question. 10 Mr. Gunaratnam says that the Officer should have afforded him an opportunity to explain this discrepancy. He says that he would have explained that the address given was his parents’ ‘permanent address’, but was not where they were in fact living. 11 The discrepancy in the parents’ address was evident on the face of the documents that Mr. Gunaratnam provided to the PRRA Officer. Moreo- ver, the Refugee Protection Division had devoted a considerable portion of its analysis to the issue of where Mr. Gunaratnam’s parents were living at the material times. In these circumstances, he should have been aware that there was an inconsistency in the information that he had pro- Gunaratnam v. Canada Anne Mactavish J. 309

vided, and should have explained this discrepancy. There was no obligation on the Officer to put the discrepancy to Mr. Gunaratnam.

The Failure of the Officer to Disclose Country Condition Information 12 Mr. Gunaratnam’s PRRA application was filed in April of 2008, at the height of the conflict in Sri Lanka. However, it was not until March of 2010 that a decision was made in relation to his application. By this time, the war in Sri Lanka had ended. 13 In assessing his PRRA application, the Officer looked at current information with respect to the situation facing Tamils in Sri Lanka. While Mr. Gunaratnam does not dispute that the information consulted by the Officer was publicly available information, he says that fairness required the Officer to draw this information to his attention and to give him an opportunity to respond to it. 14 Mr. Gunaratnam accepts that Officers are not generally required to provide PRRA applicants with general country condition information otherwise available in documentation centres: Mancia v. Canada (Minister of Citizenship & Immigration), [1998] 3 F.C. 461, [1998] F.C.J. No. 565 (Fed. C.A.), at para. 22. 15 However, he points out that the Federal Court of Appeal also stated in Mancia that where an officer is going to rely on evidence that is either not normally found in documentation centres, or was not available at the time that the applicant filed his or her submissions, then “fairness dic- tates that the applicant be informed of any novel and significant information which evidences a change in the general country conditions that may affect the disposition of the case”: at para. 22. 16 According to Mr. Gunaratnam, documentary evidence with respect to the end of the civil war in Sri Lanka constituted “novel and significant information” that clearly had an impact on the outcome of his application. This information was not available to him at the time that he filed his PRRA application in 2008. As a result, fairness required that he be given the documents and afforded an opportunity to respond. 17 The respondent argues that Mr. Gunaratnam had provided updated submissions in August of 2009, and that he had the opportunity to address the evolving situation in Sri Lanka if he wanted to do so. With respect, the PRRA Officer either had a duty to disclose the new country condition information or the Officer did not. The fact that Mr. Gunaratnam chose to make updated submissions did not change the con- 310 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

tent of the duty of fairness owed to him. Moreover, much of the evidence relied upon by the Officer post-dated August of 2009. 18 Several of my colleagues have looked at whether fairness requires that PRRA Officers disclose documentary information dealing with the changes occurring in Sri Lanka at the end of the civil war. 19 In Pathmanathan v. Canada (Minister of Citizenship & Immigration) (2009), [2010] 3 F.C.R. 395 (F.C.), Justice Kelen held that the “shift of Sri Lanka from a country embroiled in a decades long Civil War to nor- malcy [was] a significant and novel change in country conditions” As a consequence, he was of the view that “Procedural fairness required the Officer to notify the applicant of the reliance upon these new sources of information, which showed the impending end of the Civil War, and re- duction of risk to a Tamil like the applicant, and provide the applicant with an opportunity to respond”: both quotes from para. 34. The failure of the Officer to do so constituted a breach of the duty of fairness. 20 The respondent says that Pathmanathan is distinguishable from the present case. According to the respondent, the undisclosed document in Pathmanathan was a decision of the United Kingdom Asylum and Immi- gration Tribunal, whereas the document relied upon by the PRRA Of- ficer in this case was a UK Home Office Report, “a more general and well-known document”. 21 However, it is evident from Justice Kelen’s reasons that fairness required the disclosure of documents produced after the applicant’s updated submissions which showed changes in the general country conditions that affect the PRRA decision: at para. 32. This included not just the British decision, but three publicly available BBC articles as well. 22 Similarly, in Mahendran v. Canada (Minister of Citizenship & Immi- gration), 2009 FC 1236, [2009] F.C.J. No. 1554 (F.C.), Justice Beaudry found that a PRRA applicant was denied procedural fairness when the Officer relied on recent documentary evidence with respect to the conditions in Sri Lanka, without first giving the applicant an opportunity to comment on the document in question. 23 In Justice Beaudry’s view, the documents in issue were not merely updated versions of reports submitted by the claimants, but rather showed a significant change in the situation in Sri Lanka: at para. 17. 24 The respondent argues that Mahendran is distinguishable from this case, as the document in issue before Justice Beaudry was a BBC News country profile. According to the respondent, this document is “not as Gunaratnam v. Canada Anne Mactavish J. 311

notorious or well-known as country condition reports originating from the UK Home Office”. Indeed, in Nallathamby v. Canada (Minister of Citizenship & Immigration), 2010 FC 1131, [2010] F.C.J. No. 1405 (F.C.), Justice Zinn found that fairness did not require the disclosure of a UK Home Office Report. 25 However, a review of the PRRA decision in Mr. Gunaratnam’s case reveals that the Officer considered the 2010 version of the BBC News country profile referred to in Mahendran as well as the UK Home Office document quoted extensively in the decision. The Officer also consulted several other documents that post-dated Mr. Gunaratnam’s last set of PRRA submissions. 26 The situation in Sri Lanka has been volatile for years. Clearly there was no duty on PRRA officers to disclose updated publicly-available documents that showed minor escalations or de-escalations in the hostili- ties over time. However, the developments in the civil war that occurred in 2009 were clearly new, major and significant as they related to the risk to Tamils in that country. 27 As the Federal Court of Appeal observed in Mancia, fairness requires that applicants be informed of any novel and significant information which evidences a change in the general country conditions that may affect the disposition of the case. That was clearly the situation here. 28 As a result, I am satisfied that Mr. Gunaratnam was denied procedural fairness in the PRRA process. Consequently, the application for judicial review will be allowed.

Certification 29 Mr. Gunaratnam proposes the following questions for certification: 1) Does the concept of “novel and significant information which evidences a change in the general country conditions that may affect the disposition of the case” in the reasoning of the Court of Appeal in Mancia v Minister of Citizenship & Immi- gration, [1998] 3 F.C. 461: [1998] F.C.J. No. 565 signify ‘new’ and significant information, which covers the information considered by the officer in this case without notice to the Applicant, or does it signify solely ‘unusual’ and significant, which would not cover the new information considered by the officer? 2) Where a PRRA application has been outstanding for an extended time, when an officer is about to make a decision and 312 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

there have been significant changes in the country whose human rights record is under consideration, does fairness require that the officer advise an applicant of the new, current reports and articles which will be taken into account in reaching a decision, or is the applicant responsible for regularly up- dating the officer about new information relating to conditions in the home country? 30 I agree with the respondent that these are not appropriate questions for certification. The Federal Court of Appeal has already clearly identified the principles to be applied in determining whether fairness requires that extrinsic evidence be disclosed to a PRRA applicant in Mancia. Whether a specific document had to be disclosed to a particular applicant in a given case is a fact-specific inquiry, and does not raise a question of general importance.

Judgment THIS COURT ORDERS AND ADJUDGES that: 1. This application for judicial review is allowed, and the matter is remitted to a different PRRA Officer for re-determination in accordance with these reasons; and 2. No serious question of general importance is certified. Application granted. Aghdam v. Canada 313

[Indexed as: Aghdam v. Canada (Minister of Public Safety & Emergency Preparedness)] Shahin Kashani Aghdam, Applicant and The Minister of Public Safety and Emergency Preparedness, Respondent Federal Court Docket: IMM-2789-10 2011 FC 131 Anne Mactavish J. Heard: February 2, 2011 Judgment: February 4, 2011 Immigration and citizenship –––– Refugee protection — Practice and procedure in refugee claims — General principles –––– Mandamus — Claimant was Iranian citizen who arrived in Canada in 1986 — In 1992, claimant applied for permanent residence — In 2000, claimant was advised that her application could be refused because of her membership to organization associated with terrorism, MEK — In 2005, claimant attended interview with respect to her application for ministerial relief — Claimant sought order of mandamus compelling minister to make decision in relation to her application for ministerial relief — Order for issuance of mandamus was granted — Legal test was met — Claim- ant’s application was outstanding for six years — It appeared that delays were due to administrative challenges — Delay in processing claimant’s application had become unreasonable. Administrative law –––– Practice and procedure — On application for mandamus — Time requirements –––– Claimant was Iranian citizen who arrived in Canada in 1986 — In 1992, claimant applied for permanent residence — In 2000, claimant was advised that her application could be refused because of her membership to organization associated with terrorism, MEK — In 2005, claimant attended interview with respect to her application for ministerial relief — Claimant sought order of mandamus compelling minister to make decision in relation to her application for ministerial relief — Order for issuance of mandamus was granted — Legal test was met — Claimant’s application was outstanding for six years — It appeared that delays were due to administrative challenges — Delay in processing claimant’s application had become unreasonable. Civil practice and procedure –––– Costs — Costs in Federal Court –––– Claimant was Iranian citizen who arrived in Canada in 1986 — In 1992, claimant applied for permanent residence — In 2000, claimant was advised that her application could be refused because of her membership to organization associ- 314 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d) ated with terrorism, MEK — In 2005, claimant attended interview with respect to her application for ministerial relief — Claimant sought order of mandamus compelling minister to make decision in relation to her application for ministerial relief — Order for issuance of mandamus was granted — Claimant was granted costs of $3,500 inclusive of HST and disbursements — There was no evidence of any misconduct that would justify order for costs on substantial indemnity or solicitor-client basis — However, there was undue delay in processing claimant’s application — Undue delay was “special reason” which justified award of costs. Cases considered by Anne Mactavish J.: Apotex Inc. v. Canada (Attorney General) (1993), 1993 CarswellNat 820, 1993 CarswellNat 1357, (sub nom. Apotex Inc. v. Merck & Co.) 69 F.T.R. 152 (note), 51 C.P.R. (3d) 339, 162 N.R. 177, [1994] 1 F.C. 742, 18 Admin. L.R. (2d) 122, [1993] F.C.J. No. 1098 (Fed. C.A.) — considered Ben-Musa c. Canada (Ministre de la Citoyennet´e & de l’Immigration) (2005), 2005 CF 764, 2005 CarswellNat 1512, 2005 FC 764, 278 F.T.R. 213, [2005] F.C.J. No. 942, [2005] A.C.F. No. 942 (F.C.) — referred to Conille v. Canada (Minister of Citizenship & Immigration) (1998), [1999] 2 F.C. 33, 1998 CarswellNat 2788, 15 Admin. L.R. (3d) 157, 1998 Car- swellNat 2905, (sub nom. Conille v. Canada (Ministre de la Citoyennet´e et de l’Immigration)) 159 F.T.R. 215, [1998] F.C.J. No. 1553 (Fed. T.D.) — considered Manivannan v. Canada (Minister of Citizenship & Immigration) (2008), 2008 CarswellNat 5284, 2008 CarswellNat 4769, 2008 FC 1392, 77 Imm. L.R. (3d) 193, 338 F.T.R. 203 (Eng.), 2008 CF 1392, [2008] F.C.J. No. 1754 (F.C.) — distinguished Singh v. Canada (Minister of Citizenship & Immigration) (2005), 2005 Car- swellNat 1001, 2005 FC 544, 2005 CarswellNat 4482, 2005 CF 544, [2005] A.C.F. No. 669, [2005] F.C.J. No. 669 (F.C.) — referred to Statutes considered: Immigration Act, R.S.C. 1985, c. I-2 Generally — referred to Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 34(2) — referred to Regulations considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Immigration and Refugee Protection Regulations, SOR/2002-227 s. 22 — considered

RULING on whether mandamus should be ordered. Aghdam v. Canada Anne Mactavish J. 315

Raoul Boulakia, for Applicant James Todd, Sybil Thompson, for Respondent

Anne Mactavish J.:

1 Shahin Kashani Aghdam seeks an order of mandamus compelling the Minister of Public Safety and Emergency Preparedness to make a decision in relation to her application for Ministerial relief. For the reasons that follow, I am satisfied that mandamus should issue.

Background 2 Ms. Aghdam is an Iranian citizen who arrived in Canada in 1986. She claimed refugee protection and her claim was subsequently determined to have a credible basis through the refugee “backlog” program. 3 In 1992, Ms. Aghdam applied for permanent residence. She was interviewed by the Canadian Security Intelligence Service in 1993 and again in 1996 with respect to her membership in the Mujahedin-e-Khalq (or “MEK”) - an organization now on the list of entities associated with terrorism maintained by Public Safety Canada. 4 Ms. Aghdam was advised in 2000 that her application for permanent residence could be refused because of her membership in the MEK. She attended an interview with an immigration officer in 2001. Ms. Aghdam says that the purpose of the interview was to decide whether she should be granted Ministerial relief, and that the Court should consider her application for Ministerial relief to have been filed in 2001, in assessing whether there has been an undue delay in this matter. 5 I do not agree that 2001 is the relevant date to consider in determining whether mandamus should issue. The relevant date is January, 2005. 6 In coming to this conclusion, I note that there is no application for Ministerial relief from Ms. Aghdam in the certified tribunal record from 2001. Ms. Aghdam did file a written application for Ministerial relief under subsection 34(2) of the Immigration and Refugee Protection Act in 2005. One wonders why she would have done this, if she believed that she already had an application for Ministerial relief outstanding from 2001. 7 Moreover, the interview notes that she relies on to say that the clock should start ticking in 2001 expressly state that she was ineligible for Ministerial relief under the old Immigration Act. Ms. Aghdam was provided with these notes at the time of the 2001 interview. 316 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

8 Ms. Aghdam was interviewed in February of 2005 with respect to her application for Ministerial relief. On September 10, 2008, she was provided with a copy of the Canadian Border Service Agency’s briefing note to the Minister of Public Safety and Emergency Preparedness rec- ommending that her request be refused. 9 Ms. Aghdam provided responding submissions two weeks later. De- spite several requests from Ms. Aghdam over the intervening two and a half years, no decision has been made in relation to her application. 10 Shortly after Ms. Aghdam commenced her application for mandamus, she was advised that she would be provided with a “fairness disclosure” package containing a revised Ministerial relief recommendation. This was provided to her earlier this week. She has 15 days to respond to it, after which a final recommendation will be made to the Minister. 11 Ms. Aghdam has been living in Canada for 25 years, without permanent residence status. She states that the uncertainty has been extremely stressful for her, and has also had a negative impact on her ability to access health care benefits. This is a particular concern for Ms. Aghdam, as she has been diagnosed with breast cancer and also suffers from diabetes. 12 The respondent has not provided an affidavit explaining the reasons for the delay in this matter.

The Legal Test 13 As the Federal Court of Appeal noted in Apotex Inc. v. Canada (Attorney General) (1993), [1994] 1 F.C. 742 (Fed. C.A.), in order to be entitled to mandamus, an applicant must establish that: 1. There is a public legal duty to act; 2. The duty must be owed to the applicant; 3. There is a clear right to the performance of that duty, in particular: a) The applicant must have satisfied all conditions precedent giving rise to the duty; and b) There was a prior demand for performance of the duty, a reasonable time to comply with the demand, and a subsequent refusal which can be either expressed or implied, e.g. unreasonable delay; [...] 4. There is no other adequate remedy; Aghdam v. Canada Anne Mactavish J. 317

5. The order sought will be of some practical value or effect; 6. The Court finds no equitable bar to the relief sought; and 7. On a balance of convenience, an order in the nature of mandamus should issue. 14 In Conille v. Canada (Minister of Citizenship & Immigration) (1998), [1999] 2 F.C. 33, [1998] F.C.J. No. 1553 (Fed. T.D.), three considerations were identified as relevant to the question of whether a delay is unreasonable. These are: 1) The delay in question has been longer than the nature of the process required, prima facie; 2) Neither the applicant nor her counsel is responsible for the delay; 3) The authority responsible for the delay has not provided satisfac- tory justification.

Analysis 15 I am satisfied that the test has been met in this case. 16 Ms. Aghdam’s application for Ministerial relief has now been outstanding for six years. The issue is whether Ms. Aghdam has satisfied the Minister that it would not be detrimental to the national interest to grant her relief from the inadmissibility finding arising from her past involvement with the MEK. There is no suggestion that there is any ongoing security investigation with respect to Ms. Aghdam’s involvement with the MEK that is holding things up. Rather, it appears that the delays are due to administrative challenges within the Government. 17 I am satisfied that the delay in processing Ms. Aghdam’s application for Ministerial relief has become unreasonable. She had satisfied all conditions precedent giving rise to the duty prior to commencing her application for mandamus. The fact that her application appears to have prompted some recent action on her file should not disentitle her to relief. 18 Consequently, an Order will go directing the Minister of Public Safety and Emergency Preparedness to make a decision in relation to Ms. Aghdam’s application for Ministerial relief within 120 days of receipt of Ms. Aghdam’s submissions responding to the “fairness disclosure” package provided to her this week. 318 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

Costs 19 Ms. Aghdam seeks her costs of this application, which she estimates at $6,500, inclusive of HST and disbursements. Costs are not ordinarily awarded in immigration proceedings in this Court. Rule 22 of the Fed- eral Courts Immigration and Refugee Protection Rules 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”. 20 This Court has found there to be special reasons where, for example, one party has acted in a manner that may be characterized as unfair, oppressive, improper or actuated by bad faith: see Manivannan v. Canada (Minister of Citizenship & Immigration), 2008 FC 1392, [2008] F.C.J. No. 1754 (F.C.), at para. 51. That is not the situation here. There is no evidence of any misconduct on the part of the respondent that would justify such an order. Moreover, counsel for the respondent has been very helpful in moving this matter forward. 21 However, this Court has also considered undue delay in processing a claim to be a “special reason” which would justify an award of costs: see, for example, Manivannan, above, at para. 60; Singh v. Canada (Minister of Citizenship & Immigration), 2005 FC 544, [2005] F.C.J. No. 669 (F.C.), at para. 24; Ben-Musa c. Canada (Ministre de la Citoyennet´e & de l’Immigration), 2005 FC 764, [2005] F.C.J. No. 942 (F.C.), at para. 36. 22 I am satisfied that special reasons exist in this case justifying an award of costs in Ms. Aghdam’s favour. That said, there has been no conduct in this matter that requires the sanction of an award of costs on a substantial indemnity or solicitor-client basis. In the exercise of my discretion, I fix Ms. Aghdam’s costs at $3,500, inclusive of HST and disbursements. 23 I agree with the parties that there is no serious question of general importance for certification in this case.

Judgment THIS COURT ORDERS AND ADJUDGES that: The application is granted, with costs fixed at $3,500. The Minister shall make a decision with respect to Ms. Aghdam’s application for Min- Aghdam v. Canada Anne Mactavish J. 319 isterial relief within 120 days of the receipt of Ms. Aghdam’s submissions responding to the “fairness disclosure” package. Order accordingly. 320 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

[Indexed as: Moretto v. Canada (Minister of Citizenship & Immigration)] Massimo Thomas Moretto, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-3905-10 2011 FC 132 Allan Lutfy C.J. Heard: January 20, 2011 Judgment: February 4, 2011 Immigration and citizenship –––– Exclusion and removal — Inadmissible classes — Criminality –––– Applicant was born in Italy and came to Canada as infant, with only one visit to Italy since birth — Applicant had lengthy criminal record for which addiction and mental health problems contributed to crimes — Removal order was made against applicant — Immigration Appeal Board denied applicant’s appeal on basis that hardship caused to applicant would be insufficient to overturn original removal order — Applicant applied for judicial review — Application granted — Review Board properly understood factors to be taken into account, including length of time spent in Canada, degree of establishment in Canada and hardship that would be caused by return to country of birth — However, Board misapprehended evidence before it in failing to take into account that applicant had no memory of living in Italy and could not reintegrate himself into society which he was never truly part of — Board also failed to take into account difficulty that applicant would have in dealing with his mental health and addiction issues, particularly if removed from his supportive family — Board did not properly account for applicant’s positive relationship with daughter and fact that it would be in daughter’s best interests to continue this relationship in Canada — Matter was referred back to different Board member for determination. Immigration and citizenship –––– Exclusion and removal — Removal from Canada — Removal after admission — Deportation –––– Applicant was born in Italy and came to Canada as infant, with only one visit to Italy since birth — Applicant had lengthy criminal record for which addiction and mental health problems contributed to crimes — Removal order was made against applicant — Immigration Appeal Board denied applicant’s appeal on basis that hardship caused to applicant would be insufficient to overturn original removal order — Applicant applied for judicial review — Application granted — Review Board properly understood factors to be taken into account, including length of Moretto v. Canada (Minister of Citizenship & Immigration) 321 time spent in Canada, degree of establishment in Canada and hardship that would be caused by return to country of birth — However, Board misapprehended evidence before it in failing to take into account that applicant had no memory of living in Italy and could not reintegrate himself into society which he was never truly part of — Board also failed to take into account difficulty that applicant would have in dealing with his mental health and addiction issues, particularly if removed from his supportive family — Board did not properly account for applicant’s positive relationship with daughter and fact that it would be in daughter’s best interests to continue this relationship in Canada — Matter was referred back to different Board member for determination. Immigration and citizenship –––– Exclusion and removal — Removal from Canada — Appeals and judicial review — Judicial review — Miscellaneous issues –––– Applicant was born in Italy and came to Canada as infant, with only one visit to Italy since birth — Applicant had lengthy criminal record for which addiction and mental health problems contributed to crimes — Removal order was made against applicant — Immigration Appeal Board denied applicant’s appeal on basis that hardship caused to applicant would be insufficient to overturn original removal order — Applicant applied for judicial review — Application granted — Review Board properly understood factors to be taken into account, including length of time spent in Canada, degree of establishment in Canada and hardship that would be caused by return to country of birth — However, Board misapprehended evidence before it in failing to take into account that applicant had no memory of living in Italy and could not reintegrate himself into society which he was never truly part of — Board also failed to take into account difficulty that applicant would have in dealing with his mental health and addiction issues, particularly if removed from his supportive family — Board did not properly account for applicant’s positive relationship with daughter and fact that it would be in daughter’s best interests to continue this relationship in Canada — Matter was referred back to different Board member for determination. Immigration and citizenship –––– Exclusion and removal — Removal from Canada — Appeals and judicial review — Immigration Appeal Division — Evidence –––– Applicant was born in Italy and came to Canada as infant, with only one visit to Italy since birth — Applicant had lengthy criminal record for which addiction and mental health problems contributed to crimes — Removal order was made against applicant — Immigration Appeal Board denied applicant’s appeal on basis that hardship caused to applicant would be insufficient to overturn original removal order — Applicant applied for judicial review — Ap- plication granted — Review Board properly understood factors to be taken into account, including length of time spent in Canada, degree of establishment in Canada and hardship that would be caused by return to country of birth — How- ever, Board misapprehended evidence before it in failing to take into account that applicant had no memory of living in Italy and could not reintegrate himself 322 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

into society which he was never truly part of — Board also failed to take into account difficulty that applicant would have in dealing with his mental health and addiction issues, particularly if removed from his supportive family — Board did not properly account for applicant’s positive relationship with daughter and fact that it would be in daughter’s best interests to continue this relationship in Canada — Matter was referred back to different Board member for determination. Cases considered by Allan Lutfy C.J.: Chieu v. Canada (Minister of Citizenship & Immigration) (2002), 37 Admin. L.R. (3d) 252, [2002] 1 S.C.R. 84, 2002 SCC 3, 2002 CarswellNat 5, 2002 CarswellNat 6, 18 Imm. L.R. (3d) 93, 208 D.L.R. (4th) 107, 280 N.R. 268, [2002] S.C.J. No. 1, REJB 2002-27421 (S.C.C.) — referred to Hawthorne v. Canada (Minister of Citizenship & Immigration) (2002), 2002 CarswellNat 3444, 2002 FCA 475, 222 D.L.R. (4th) 265, [2003] 2 F.C. 555, 24 Imm. L.R. (3d) 34, 235 F.T.R. 158 (note), 2002 CarswellNat 4276, 297 N.R. 187, 2002 CAF 475, [2002] F.C.J. No. 1687 (Fed. C.A.) — referred to Ribic v. Canada (Minister of Employment & Immigration) (1986), 1986 Car- swellNat 1357, [1985] I.A.B.D. No. 4, [1985] I.A.D.D. No. 4 (Imm. App. Bd.) — referred to

APPLICATION for judicial review of Immigration Board decision in which removal order was made against applicant.

Mr. Adrian Huzel, for Applicant Ms Kimberly Shane, for Respondent

Allan Lutfy C.J.:

1 The applicant, a citizen of Italy where he was born in 1969, became a permanent resident in Canada before his first birthday. He has lived in Canada ever since. He has only a vague recollection, if any at all, of a one-month family vacation in Italy when he was approximately eight years of age. 2 The applicant’s criminal life began in 1997, shortly after he was diagnosed with bipolar disorder. He began abusing crack cocaine after his father died in 2002. There is no suggestion that he involved others in the use of cocaine. 3 Since 1997, the applicant has been convicted of more than twenty- five offences, including taking a motor vehicle without consent, fraud, failing to comply with a probation order, break and enter, failing to comply with an undertaking, breach of a conditional sentence order and false Moretto v. Canada (Minister of Citizenship & Immigration) Allan Lutfy C.J. 323

pretences. His victims were often elderly citizens residing in senior resi- dences. He has pled guilty in every instance. 4 According to the applicant, his addiction and mental health issues have played a significant role in his criminal offences. 5 In 2009, a removal order was issued against the applicant on the basis of his serious criminality. His appeal of the removal order before the Im- migration Appeal Division (the member) was dismissed. The member also refused the applicant’s request for a stay of his removal order. The stay had been sought based on humanitarian and compassionate considerations, including the best interests of his daughter, who was born in 2001. 6 The member properly understood that she was to consider the factors set out in Ribic v. Canada (Minister of Employment & Immigration) (1986), [1985] I.A.B.D. No. 4 (Imm. App. Bd.), as modified by the Su- preme Court of Canada in Chieu v. Canada (Minister of Citizenship & Immigration), 2002 SCC 3 (S.C.C.), and in particular, the length of time the applicant has spent in Canada, the degree to which he is established here and the degree of hardship that would be caused by his removal to Italy. 7 In her assessment of these factors, particularly the hardship factor, the member misapprehended the available evidence. 8 The member’s assessment of hardship did not take into account that the applicant was facing removal to Italy, a place he does not know. The reference to the applicant’s ability to “reintegrate” himself in that country suggests that he will be returning to a place he was familiar with. In fact, he has only a vague recollection at best of his single vacation there over thirty years ago when he was a child. 9 Second, the member failed to consider how separation from his family support would affect his ability to manage his mental health and addiction issues. While the member acknowledges the support the applicant received from his family in Canada, she infers that this assistance could be replaced by his relatives in Italy. However, he does not know these people, the very persons the member assumed could replace his Cana- dian family support structure. 10 Third, the member ignored the impact removal would have on an individual with serious mental health and addiction issues. She makes no mention of the applicant’s sister’s attendance at all of his medical ap- pointments. Nor does she deal with the testimony of the applicant and his 324 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

sister about the undue stress his return to Italy will cause and that stress is a factor in triggering the applicant’s cocaine relapses. 11 Finally, and significantly, the member ignored the uncontradicted evidence that the applicant had a positive and loving relationship with his daughter. The member failed to explain why it was not in the daughter’s best interests to continue this relationship with her father in Canada: Hawthorne v. Canada (Minister of Citizenship & Immigration), 2002 FCA 475 (Fed. C.A.) at paragraph 5. 12 The applicant is a virtual Canadian. He arrived here when he was nine months old. The member’s decision would have the applicant return to a place where he has never lived and does not know. In my view, the member misapprehended the evidence in this exceptional case. Her findings were made without regard to the material before her. This resulted in an outcome which is unreasonable. 13 The Court agrees with the parties that this proceeding presents no serious question to be certified.

Judgment THIS COURT ORDERS that: 1. This application for judicial review is granted; 2. The decision of the Immigration Appeal Division, dated May 31, 2010, is set aside and the matter referred for re-determination by a different member. Application granted. Paul v. Canada (Minister of Citizenship & Immigration) 325

[Indexed as: Paul v. Canada (Minister of Citizenship & Immigration)] Keisha Moleica Paul, Kalanji Atonio Paul, Applicants and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-2473-10 2011 FC 135 Richard Boivin J. Heard: January 25, 2011 Judgment: February 7, 2011 Immigration and citizenship –––– Refugee protection — Practice and procedure in refugee claims — Post-determination options — Humanitarian and compassionate review –––– Foreign national was citizen of Saint Vincent — Foreign national was involved in relationship in which she was abused — For- eign national and her son went to Canada and filed refugee claim on basis of abuse — Immigration and Refugee Board rejected claim on basis that she had not availed herself of state protection — Foreign national filed humanitarian and compassionate (H&C) application and Pre-Removal Risk Assessment; both were rejected — Immigration officer rejected H&C application, finding that it would not cause unusual, undeserved, or disproportionate hardship to apply for permanent residency from outside Canada — At time of officer’s decision, foreign national was subject to removal order; warrant of arrest was issued because they failed to appear to their removal — Foreign national brought application for judicial review — Application granted — With respect to “clean hands” issue, there was no evidence that foreign national went into hiding or that authorities unsuccessfully attempted to contact her — Officer applied incorrect test in assessing H&C application — Although it was open to officer to adopt Board’s findings about risk to foreign national, officer was still required to assess that risk on threshold applicable to H&C applications — Officer did not apply facts of application to this threshold, but rather looked at whether foreign national had established that she would be subject to personal risk on return — Officer failed to assess whether that risk resulted in unusual, undeserved or disproportionate hardship. Cases considered by Richard Boivin J.: Kisana v. Canada (Minister of Citizenship & Immigration) (2009), 2009 FCA 189, 2009 CarswellNat 1626, 2009 CAF 189, 392 N.R. 163, 2009 Car- swellNat 4008, [2010] 1 F.C.R. 360, [2009] F.C.J. No. 713 (F.C.A.) — referred to 326 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

Montivero v. Canada (Minister of Citizenship & Immigration) (2008), 2008 FC 720, 2008 CarswellNat 1705, 2008 CF 720, 2008 CarswellNat 2802, [2008] F.C.J. No. 907 (F.C.) — considered New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1, 69 Admin. L.R. (4th) 1, 69 Imm. L.R. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) [2008] 1 S.C.R. 190, 844 A.P.R. 1, (sub nom. Dunsmuir v. New Brunswick) 2008 C.L.L.C. 220-020, D.T.E. 2008T-223, 329 N.B.R. (2d) 1, (sub nom. Dunsmuir v. New Brunswick) 170 L.A.C. (4th) 1, (sub nom. Dunsmuir v. New Brunswick) 291 D.L.R. (4th) 577, 2008 CarswellNB 124, 2008 CarswellNB 125, 2008 SCC 9, 64 C.C.E.L. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) 95 L.C.R. 65, [2008] S.C.J. No. 9, [2008] A.C.S. No. 9 (S.C.C.) — 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.) — followed Wong c. Canada (Ministre de la Citoyennet´e & de l’immigration) (2010), 2010 CF 569, 2010 CarswellNat 1554, 2010 FC 569, 2010 CarswellNat 2386, [2010] A.C.F. No. 668, [2010] F.C.J. No. 668 (F.C.) — distinguished Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 25 — pursuant to s. 25(1) — considered

APPLICATION by foreign national for judicial review of decision of Immigra- tion Officer refusing application for permanent residency from within Canada on humanitarian and compassionate grounds.

Viken G. Artinian, for Applicants Thi My Dung Tran, for Respondent

Richard Boivin J.:

1 This is an application for judicial review of a decision dated March 16, 2010 refusing an application for permanent residency from within Canada on humanitarian and compassionate grounds pursuant to section 25 of the Immigration and Refugee Protection Act, SC 2001, c 27 (the Act). The application for humanitarian and compassionate relief (H&C application) was refused by the Immigration Officer (the Officer). Paul v. Canada (Minister of Citizenship & Immigration) Richard Boivin J. 327

Factual Background 2 The principal applicant, Ms. Keisha Moleica Paul, is a 30-year old citizen of Saint Vincent and the Grenadines (Saint Vincent). The minor applicant, Kalanji Atonio Paul, is the nine-year old son of Ms. Paul. Ms. Paul has one other child, a two-year old daughter who was born in Canada. 3 From 2000 to 2002, Ms. Paul was involved in a relationship with Mr. Desbert Scott, the minor applicant’s father. The relationship became violent and Ms. Paul was abused both emotionally and physically. 4 After a particularly violent incident in May 2002 which left her hospi- talized, Ms. Paul decided to leave Mr. Scott. She left her son with a family member and went into hiding in the village of Canouan. Ms. Paul arrived in Canada on June 11, 2002. 5 Four years later, the minor applicant joined his mother in Canada in June 2006. On July 24, 2006, the applicants filed a refugee claim on the basis of the abuse by Mr. Scott. 6 On October 10, 2008, the Immigration and Refugee Board (the Board) rejected the refugee claim on the basis that the principal applicant had not availed herself of state protection and had not demonstrated that she could not have remained in Canouan. The Board found that Ms. Paul had been abused by Mr. Scott. 7 On May 27, 2009, the applicants filed their H&C application. They requested a Pre- Removal Risk Assessment (PRRA) on August 27, 2009 and made additional submissions regarding risk on September 14, 2009.

The Impugned Decision 8 On March 16, 2010, the Officer rejected both the PRRA and the H&C application. The Officer rejected the H&C application, finding that it would not cause the applicants unusual, undeserved or disproportionate hardship to apply for permanent residency from outside of Canada. 9 The Officer adopted the Board’s finding that the principal applicant had been abused by Mr. Scott. The Officer further adopted the Board’s findings that state protection was available and that Ms. Paul had not explained why she could not remain in Canouan and thus escape Mr. Scott’s abuse. 10 The Officer considered the applicants’ establishment in Canada, noting that Ms. Paul had been here for eight years and her son for four 328 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

years. The Officer noted that Ms. Paul’s son is attending school in Can- ada and that Ms. Paul had successfully completed French classes. 11 The Officer found that Ms. Paul had failed to demonstrate steady employment during her eight years in Canada and also failed to demonstrate financial independence. The Officer considered the best interests of both of Ms. Paul’s children, that is, the minor applicant and the Canadian child. 12 The Officer also observed that Ms. Paul’s son spent the first five years of his life in Saint Vincent and still has family in Saint Vincent. With respect to the Canadian child’s relationship with her father - who is also a Canadian citizen - the Officer concluded that the applicants had failed to establish that the child had an ongoing relationship with her father. The Officer also found that there was insufficient evidence to establish that Ms. Paul was receiving child support payments from the child’s father.

Removal Order 13 At the time of the Officer’s decision, the applicants were subject to a removal order. Immigration authorities were notified when the H&C application was refused, and a warrant of arrest was issued against the applicants because they failed to appear to their removal.

Relevant legislation 14 Subsection 25(1) of the Immigration and Refugee Protection Act reads as follows: 25. (1) The Minister shall, upon request of a foreign national in Can- ada who is inadmissible or who does not meet the requirements of this Act, and may, on the Minister’s own initiative or on request of a foreign national outside Canada, examine the circumstances concerning the foreign national and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligation of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to them, taking into account the best interests of a child directly affected, or by public policy considerations. 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 pr´esente loi, et peut, de sa propre initiative ou sur demande d’un etranger´ se trouvant hors du Canada, etudier´ le Paul v. Canada (Minister of Citizenship & Immigration) Richard Boivin J. 329

cas de cet etranger´ et peut lui octroyer le statut de résident permanent ou lever tout ou partie des critères et obligations applicables, s’il estime que des circonstances d’ordre humanitaire relatives a` l’étranger — compte tenu de l’intérêt supérieur de l’enfant directement touché — ou l’intérêt public le justifient.

Standard of Review 15 The applicants argue, inter alia, that the Officer applied the incorrect test in assessing their H&C application. In Montivero v. Canada (Minister of Citizenship & Immigration), 2008 FC 720, [2008] F.C.J. No. 907 (F.C.), at para 6, this Court determined that the test applied to an H&C application is reviewable on a correctness standard: [6] My colleague Justice Eleanor R. Dawson recently determined that the selection of the appropriate test in the context of an H&C application should be assessed by the Court on a correctness standard: Zam- brano v. Canada (Minister of Citizenship and Immigration), 2008 FC 481, [2008] F.C.J. No. 601. In coming to this conclusion, she noted the importance of holding Officers to the tests prescribed by Parlia- ment. This aptly describes a central role of the Court in its exercise of judicial review and I agree that the correctness standard should be applied here. 16 As for the standard of review applicable to decisions on H&C applications, the Court determined that the applicable standard is reasonableness (see Kisana v. Canada (Minister of Citizenship & Immigration), 2009 FCA 189, [2009] F.C.J. No. 713 (F.C.A.), at para 18. Thus, the Court is not concerned with whether the Officer’s decision was correct, but rather “whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”(New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9, [2008] 1 S.C.R. 190 (S.C.C.), at para 47).

Analysis Merits of the application — “clean hands” issue 17 Prior to examining the merits of the application for judicial review, the Court must first consider whether the applicants have come to the Court with unclean hands as a result of the warrant for the principal applicant’s arrest. 18 At the hearing before this Court, a new piece of evidence was filed by counsel for the applicants - with the consent of counsel for the respon- 330 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

dent - confirming that the principal applicant presented herself volunta- rily at a Canada Border Services Agency’s office on January 24, 2011 and was released for removal process. The removal order has been issued and indicates that the removal from Canada is scheduled for February 27, 2011. The principal applicant requested that the Court examine the merits of the application for judicial review in light of this additional evidence. 19 The issue as to whether an arrest warrant for failure to comply with a removal order can constitute unclean hands on the part of an applicant was addressed in Wong c. Canada (Ministre de la Citoyennet´e & de l’immigration), 2010 FC 569, [2010] F.C.J. No. 668 (F.C.)) 20 Although the clean hands doctrine can give rise to situations in which the Court will decline to hear the merits of an application, the Court is of the view that the facts of this case are not analogous to the facts in Wong and can therefore be distinguished. 21 In Wong, the applicant was avoiding immigration authorities and went into hiding after he was ordered to leave Canada. Mr. Wong had been personally served with a notice requiring him to attend a meeting with immigration authorities and, following his failure to attend that meeting, several phone calls to him remained unanswered. 22 In the case at bar, there is no evidence that the applicants have gone into hiding or that the authorities unsuccessfully attempted to contact Ms. Paul. There is no evidence on record to suggest that Ms. Paul and her son have excluded themselves from the immigration system in the same manner as the applicant in Wong. 23 Also, the Court notes that Wong dealt with an applicant whose refugee claims were denied on the basis of credibility, whereas the present applicants were found to be credible. 24 This is not to say that the conduct of Ms. Paul is blameless. Ms. Paul is clearly guilty of misconduct. This misconduct was admitted by her counsel but the fact that Ms. Paul’s misconduct was repaired, albeit lately — one day before the hearing on judicial review — was also emphasized. 25 Hence, after considering and balancing all of the above factors, the Court concludes that it should exercise its discretion in Ms. Paul’s favour. The Court will therefore consider the merits of the application for judicial review. Paul v. Canada (Minister of Citizenship & Immigration) Richard Boivin J. 331

Issues 26 The applicants have raised four issues in their submissions: whether the Officer applied the incorrect test in assessing their application, whether the Officer erred in making credibility findings without providing the applicants with a chance to respond, whether the Officer ignored relevant documentary evidence, and whether the Officer properly assessed the best interests of the children.

Analysis 27 The Court is of the opinion that the Officer applied the incorrect test in assessing the H&C application. 28 The applicants claim that, as a result of the abuse by Mr. Scott, they would be subject to unusual, undeserved or disproportionate hardship if they are forced to apply for permanent resident status from Saint Vin- cent. In assessing this claim, the Officer adopted several of the Board’s findings: [...] Comme la SPR, je ne remets pas en doute les allégations de la requérante voulant qu’elle ait et´´ e victime de violence conjugale. Toutefois, je constate qu’elle ne soumet pas avec sa DRP d’éléments de preuve a` l’appui des risques invoqués. Dans la présente demande, l’absence de preuve au dossier démon- trant que les autorités de son pays ne lui offrent pas de recours pour assurer sa sécurité et que sa vie serait toujours menacée après près de huit ans passés au Canada est pris en considération de même que les remarques qui suivent. Je note que la requérante affirme dans ses soumissions avoir trouvé refuge a` Canouan, un endroit où son ex- conjoint ne l’a pas retrouvée: « As I was hiding in Canouan. I made sure that he could not find me, finally I managed to leave Saint-Vin- cent for Canada on the 11th of June 2002 ». Ainsi donc, selon les dires de la requérante, son ex-conjoint ne l’a pas retrouvée a` [sic] endroit. Or, la requérante n’explique pas pourquoi, elle n’est pas restée Canouan alors qu’elle y avait trouvé refuge. [...] (Tribunal Record, p. 5) 29 Although it was certainly open to the Officer to adopt the Board’s findings about the risk to the applicants, the Officer was still required to assess that risk on the threshold applicable to H&C applications: that of unusual, undeserved or disproportionate hardship. The Officer did not apply the facts of the application to this threshold, but rather looked at whether the applicants had established that they would be subject to personal risk on their return. 332 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

30 The Officer set out the correct test for assessing an H&C application at the outset of the reasons and again in the conclusion. However, the Court is not satisfied that the Officer actually applied this test. 31 Recognizing that the applicants are failed refugee claimants, the Of- ficer correctly assessed the risk they would face if they are returned to Saint Vincent. The Officer was entitled to adopt the Board’s findings about risk, in particular about the availability of state protection and about the principal applicant’s time in Canouan. 32 However, the Officer failed to assess whether that risk resulted in unusual, undeserved or disproportionate hardship. The reasoning in Ramsawak v. Canada (Minister of Citizenship & Immigration), 2009 FC 636, [2009] F.C.J. No. 1387 (F.C.), at paras 26 and 27, applies to the case at bar: [26] This Court has emphasized, in a number of cases, the importance of assessing an H&C claim through the lens of “hardship”, as distinct from that of “risk” applied in relation to a PRRA: see, for example, Uddin v. Canada (Minister of Citizenship and Immigra- tion), [2003] F.C.J. No. 460; Serda v. Canada (Minister of Citizen- ship and Immigration), 2006 FC 356; Sha’er v. Canada (Minister of Citizenship and Immigration), 2007 FC 231; Pinter v. Canada (Min- ister of Citizenship and Immigration), 2005 FC 296; Ramirez v. Can- ada (Minister of Citizenship and Immigration), 2006 FC 1404. [27] The mere fact that the officer stated the proper test at the outset of his reasons does not indicate, of course, that the officer properly assessed the evidence. To come to the contrary conclusion would be to privilege form over substance. Of course, there is nothing wrong with an officer relying on the same set of factual findings in assessing an H&C and a PRRA application, provided these facts are analysed through the proper prism relevant to each application. This is precisely where the officer went wrong: he appears to have par- roted the findings made in his PRRA decision, which was released the same day. 33 In the case at bar, the Officer committed the same error. The Officer seems to have conflated the H&C application with the PRRA. Indeed, the Officer found that the applicants had failed to demonstrate hardship because of the availability of state protection and because Ms. Paul could return to Canouan, where she took refuge before coming to Canada. Those conclusions are mirrored in the Officer’s reasons for refusing their PRRA. Paul v. Canada (Minister of Citizenship & Immigration) Richard Boivin J. 333

34 The Officer correctly considered the risk, which remains relevant in assessing the H&C application (Ramsawak). However, the Court finds that the Officer failed to go beyond the issue of risk and consider whether that risk gives rise to unusual, undeserved or disproportionate hardship. The section entitled “Risque personnalis´e de retour pour la requ´erante” is telling. Although, it could be argued that the title is not fatal, it reveals nonetheless the lens through which the Officer assessed the evidence i.e., “risk” instead of “hardship”. 35 The Court finds that the Officer applied the incorrect legal test in assessing the H&C application. The Officer’s failure to examine hardship in assessing the H&C application is thus an error that warrants this Court’s intervention. Having decided in favour of the applicant with respect to this argument, there is no need to address the other arguments. 36 The application for judicial review will be allowed. No question was proposed for certification and there is none in this case.

Judgment THIS COURT ADJUDGES that: 1. The application for judicial review is allowed; 2. The Officer’s decision is set aside; 3. The matter is referred back to be determined by a different Of- ficer; and 4. No question of general importance is certified. Application granted. 334 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

[Indexed as: Leal Alvarez v. Canada (Minister of Citizenship & Immigration)] Angela Dianne Leal Alvarez, Jose Jair Orozco Fajardo, Applicants and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-3768-10 2011 FC 154 Donald J. Rennie J. Heard: January 19, 2011 Judgment: February 9, 2011 Immigration and citizenship –––– Refugee protection — Practice and procedure in refugee claims — Refugee hearings — Powers and duties of board –––– Applicant and her common-law spouse (collectively applicants) were citizens of Colombia — Applicants claimed refugee protection in Canada on basis that applicant was victim of violence and threats by Revolutionary Armed Forces of Colombia (FARC) — Refugee Protection Division (RPD) rejected claim on basis of credibility and objective test for fear — RPD found applicant had viable internal flight alternative within Colombia — Applicants applied for judicial review — Application granted — RPD’s finding that applicants were neither Convention Refugees nor persons in need of protection was not within range of possible and acceptable outcomes defensible in respect of facts and law — By focusing on applicant’s position in civil administration of municipality, as opposed to functions she performed in that capacity, RPD departed from direction of Supreme Court of Canada in 1993 case — RPD thus ignored material evidence and neglected to consider whether applicant’s activities would be perceived as political activity by FARC — This was reviewable error — RPD insisted on “conclusive proof” of applicant’s allegation that she had been kidnapped and beaten by FARC — RPD also rejected applicant’s claim, as it was not satisfied on “balance of probabilities” as to whether she was target of FARC — Above findings were not predicated on appropriate legal standards — Applicant did not have burden of providing either conclusive proof or proof on balance of probabilities — Test is whether there is serious possibility of persecution or harm — This was also reviewable error. Leal Alvarez v. Canada Donald J. Rennie J. 335

Cases considered by Donald J. Rennie J.: Alam v. Canada (Minister of Citizenship & Immigration) (2005), 2005 Car- swellNat 3904, 2005 CF 4, 41 Imm. L.R. (3d) 263, 2005 FC 4, 2005 Car- swellNat 55, [2005] F.C.J. No. 15 (F.C.) — considered Ward v. Canada (Minister of Employment & Immigration) (1993), (sub nom. Canada (Attorney General) v. Ward) 103 D.L.R. (4th) 1, (sub nom. Canada (Attorney General) v. Ward) 153 N.R. 321, 20 Imm. L.R. (2d) 85, 1993 Car- swellNat 90, 1993 CarswellNat 1382, [1997] I.N.L.R. 42, (sub nom. Canada (Attorney General) v. Ward) [1993] 2 S.C.R. 689, [1993] S.C.J. No. 74, EYB 1993-67292 (S.C.C.) — considered Yip v. Canada (Minister of Employment & Immigration) (1993), 70 F.T.R. 175, 1993 CarswellNat 568, [1993] F.C.J. No. 1285 (Fed. T.D.) — referred to Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 96 — referred to s. 97 — referred to

APPLICATION for judicial review of decision of Refugee Protection Division finding applicants not to be Convention refugees or persons in need of protection.

Michael Crane, for Applicant Deborah Drukarsh, for Respondent

Donald J. Rennie J.:

1 This is an application for judicial review of the June 11, 2010, decision of the Refugee Protection Division (RPD) of the Immigration and Refugee Board (IRB) that determined the applicants were neither Con- vention Refugees nor persons in need of protection under sections 96 and 97 of the Immigration and Refugee Protection Act (IRPA). For the reasons that follow, the application is granted. 2 The applicants are citizens of Colombia. Angela Alvarez is the principal applicant. Her common-law spouse who she met in the United States, also filed a claim with the RPD, but he admitted that he did not leave Colombia based on a fear of persecution. The principal applicant claimed that she was a victim of violence, serious threats of extortion and death threats made by the Fuerzas Armadas Revolucionarias de Colombia (FARC) - Revolutionary Armed Forces of Colombia. The RPD rejected her claim on the basis of credibility and on the objective test for fear found in sections 96 and 97 of IRPA. In addition the RPD found that Ms. 336 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

Alvarez had a viable internal flight alternative within Colombia. There are two reviewable errors in this decision. 3 The first error arises from the RPD’s approach to the evidentiary basis of the applicant’s fear of persecution or harm. The RPD framed the determinative issue as one of credibility in the following manner: [9] The determinative issue in this case is credibility, and, in relation to that, the well-foundedness of the claimant’s fear. The panel finds the principal claimant’s story not to be wholly credible in its material aspects due to the following reasons. [10] She said that in June 2006, she and fellow employees encoun- tered the FARC at one of their roadblocks in the area. The FARC people had examined their cedulas (national identity cards) and then let them go. On learning of this, the mayor had advised them to cease their social work. However, she said that despite her compliance, she received a phone call from the FARC in September 2006 declaring her to be an enemy of their organization, was beaten up by them and even received a sufragio note from them. Noting that she was merely an assistant and/or a secretary in this mayor’s program, and had, in fact, complied with the FARC’s demand, the panel finds it hard to believe that the FARC would focus so much attention on her and continue to harass her with threats and phone calls even after she had left and then returned to Medellin from Costa Rica. [Application Re- cord of the Applicants, pp. 8-9] 4 First, by focusing on the principal applicant’s position in the civil administration of the municipality, as opposed to the functions that she performed in that capacity, the RPD departed from the direction of the Su- preme Court of Canada in Ward v. Canada (Minister of Employment & Immigration), [1993] 2 S.C.R. 689 (S.C.C.). The evidence before the RPD was that the principal applicant’s responsibilities included working with displaced persons in areas where the FARC was active, visiting areas previously occupied by the FARC, examining the dead, photograph- ing their belongings and working with villagers, “... to make sure that the peasants really understood the dire consequences of joining these unlaw- ful groups.” By focusing on the position or rank the principal applicant held in the civil administration of the municipality, the RPD ignored her actual responsibilities in the implementation of a relief program, including those noted above. The RPD thus ignored material evidence and neglected to consider whether her activities would be perceived as political activity by the FARC. This is a reviewable error. Leal Alvarez v. Canada Donald J. Rennie J. 337

5 With respect to the second error, the applicant testified that she had been kidnapped and beaten by the FARC. The RPD insisted on “conclusive proof” of this allegation. The RPD also rejected Ms. Alvarez’ claim as it was not satisfied “on a balance of probabilities, she was not or is not a target of the FARC.” Neither of these findings are predicated on the appropriate legal standard. The principal applicant did not have the burden of providing either conclusive proof or proof on a balance of probabilities. The test is whether there was a serious possibility of persecution or harm. As O’Reilly J. noted in Alam v. Canada (Minister of Citizenship & Immigration), 2005 FC 4 (F.C.), where the Board has incorrectly elevated the standard of proof, or the court cannot determine what standard of proof was actually applied, a new hearing can be ordered; see also Yip v. Canada (Minister of Employment & Immigration), [1993] F.C.J. No. 1285 (Fed. T.D.). This too is, therefore, a reviewable error. 6 For the foregoing reasons, it cannot be said that the RPD’s finding that the applicants were neither Convention Refugees nor persons in need of protection is within the range of possible and acceptable outcomes defensible in respect of the facts and law.

Judgment THIS COURT’S JUDGMENT is that the application for judicial review is granted. The matter is referred back to the Immigration Refugee Board for reconsideration before a different member of the Board’s Ref- ugee Protection Division. No question for certification has been proposed and the Court finds that none arises. Application granted. 338 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

[Indexed as: Sousa v. Canada (Minister of Citizenship & Immigration)] Thabata Porto Gomes Sousa, Kaue Gomes Sousa de Oliveira, Applicants and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-3669-10 2011 FC 63 Simon Noël J. Heard: January 17, 2011 Judgment: January 20, 2011 Immigration and citizenship –––– Refugee protection — Elements of protected refugee status — Fear of persecution — What constituting persecution — Gender-based claims –––– Applicant mother alleged that she was victim of domestic violence by her former spouse, M — Mother went to police station to report threats, but she was advised that not much could be done — M attacked mother during course of her stay with him and his parents — While mother attempted to call police, M’s father hung up phone and threatened her with his connections with police — Applicants applied for refugee protection, but board denied them status as convention refugees or persons in need of protection — Applicants brought application for judicial review — Application granted — Matter was sent for redetermination before newly constituted panel of board — Board’s decision in regards to sufficiency of state protection was unreasonable — Board failed to adequately address Gender Guidelines and made unreasonable plausibility finding — Situation commanded that Guidelines receive more particular attention, as mother was victim of domestic violence that was condoned by M’s father — Board concluded that M’s father’s influence on police was limited, and this conclusion went beyond what evidence supported — Further, board failed to adequately consider mother’s reasons for not seeking state protection. Cases considered by Simon Noël J.: Correa Juarez v. Canada (Minister of Citizenship & Immigration) (2010), 2010 CarswellNat 3307, 2010 FC 890, 2010 CF 890, 2010 CarswellNat 4183, [2010] F.C.J. No. 1107, [2010] A.C.F. No. 1107 (F.C.) — referred to Dean c. Canada (Ministre de la Citoyenneté & de l’Immigration) (2009), 2009 CarswellNat 5717, 2009 FC 772, 2009 CarswellNat 2390, 2009 CF 772, [2009] F.C.J. No. 925, [2009] A.C.F. No. 925 (F.C.) — referred to Sousa v. Canada (Minister of Citizenship & Immigration) Simon Noël J. 339

Flores Dosantos v. Canada (Minister of Citizenship & Immigration) (2010), 2010 CF 1174, 2010 CarswellNat 5098, 2010 CarswellNat 4448, 2010 FC 1174 (F.C.) — referred to Montoya Martinez v. Canada (Minister of Citizenship & Immigration) (2011), 2011 FC 13, 2011 CarswellNat 56 (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 Valtchev v. Canada (Minister of Citizenship & Immigration) (2001), 2001 Car- swellNat 1534, 2001 FCT 776, 208 F.T.R. 267, 2001 CFPI 776, [2001] F.C.J. No. 1131 (Fed. T.D.) — referred to Ward v. Canada (Minister of Employment & Immigration) (1993), (sub nom. Canada (Attorney General) v. Ward) 103 D.L.R. (4th) 1, (sub nom. Canada (Attorney General) v. Ward) 153 N.R. 321, 20 Imm. L.R. (2d) 85, 1993 Car- swellNat 90, 1993 CarswellNat 1382, [1997] I.N.L.R. 42, (sub nom. Canada (Attorney General) v. Ward) [1993] 2 S.C.R. 689, [1993] S.C.J. No. 74, EYB 1993-67292 (S.C.C.) — followed Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Generally — referred to

APPLICATION for judicial review of board’s decision denying applicants’ application for refugee protection.

Laura Setzer, for Applicant Helene Robertson, for Respondent

Simon No¨el J.:

1 The present application for judicial review seeks to have a decision of the Immigration and Refugee Board, Refugee Protection Division (the “Board”) quashed and sent for redetermination. Leave was granted by Justice Campbell on October 19, 2010. In his decision of June 10, 2010, the Board member denied Thabata Porto Gomes Sousa and Kaue Gomes Sousa de Oliveira (the “Applicants”) status as Convention Refugees or 340 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

persons in need of protection under the regime of the Immigration and Refugee Protection Act (“IRPA”). 2 Thabata Porto Gomes Sousa (the “Principal Applicant”) alleges that she was the victim of domestic violence by her former spouse, Marcus, a man the evidence reveals to be violent and in prey to psychiatric issues and substance abuse problems. The Principal Applicant left her former spouse with her son, but returned to him upon learning that he had been admitted to a drug addiction treatment facility. However, Marcus es- caped from the facility and renewed his threats towards the Principal Ap- plicant. The Principal Applicant went to the police station to report the threats. The police advised her that not much could be done and that, at best, Marcus would only be condemned to paying a fine or making a charitable donation. 3 During the course of the events, the Applicants moved in with Mar- cus’ parents and Marcus, in an attempt to salvage the relationship. Dur- ing the course of this stay, Marcus attacked the Principal Applicant, who then called the police. Her father-in-law, a man involved in the “animal game”, a popular form of illegal gambling in Brazil, proceeded to hang up the phone when the Principal Applicant was making the call. Upon receiving an inquiry by the police about the events, her father-in-law instructed the police that the matter had been solved, and that it was nothing but a couple’s quarrel. The father-in-law then threatened the Princi- pal Applicant and made reference to the fact that he had connections within the police. 4 The Board member focused on the following elements to conclude that the Applicants were not Convention Refugees or persons in need of protection: a. The Principal Applicant did not present sufficient evidence to re- but the presumption of State Protection as set out in Ward v. Canada (Minister of Employment & Immigration), [1993] 2 S.C.R. 689 (S.C.C.); b. Marcus’ father’s influence with the police was not deemed sufficient to influence the police’s decision to investigate a crime; c. Although the evidence was mixed on this subject, several means for protection and programs were presented by the Board in support of the conclusion on sufficiency of state protection; and Sousa v. Canada (Minister of Citizenship & Immigration) Simon No¨el J. 341

d. State protection in Brazil was found to be sufficient, particularly since the state adopted a statute, namely the Maria Da Penha law, which criminalizes domestic violence.

Standard of Review 5 The determinative issue in this case is that of the sufficiency of state protection, a question that is to be reviewed under the standard of reasonableness, as it is a mixed question of fact and law (Dean c. Canada (Ministre de la Citoyennet´e & de l’Immigration), 2009 FC 772 (F.C.); Flores Dosantos v. Canada (Minister of Citizenship & Immigration), 2010 FC 1174 (F.C.); New Brunswick (Board of Management) v. Dun- smuir, 2008 SCC 9 (S.C.C.)). The application of the Gender Guidelines is a question that is to be reviewed on the standard of reasonableness (Correa Juarez v. Canada (Minister of Citizenship & Immigration), 2010 FC 890 (F.C.); Montoya Martinez v. Canada (Minister of Citizenship & Immigration), 2011 FC 13 (F.C.)).

Analysis 6 The Board’s decision in regards to the sufficiency of state protection is unreasonable, in that it failed to adequately address the Gender Guide- lines and made an unreasonable plausibility finding. 7 It is clear that subjective reticence to engage with state authorities is not sufficient to rebut the presumption of state protection (Ward v. Canada (Minister of Employment & Immigration), [1993] 2 S.C.R. 689 (S.C.C.)). However, this case is not as in Dean c. Canada (Ministre de la Citoyennet´e & de l’Immigration), 2009 FC 772 (F.C.), at paragraph 21, where “the applicant demonstrated only a subjective reticence to file a complaint but did not show any denial or lack of state protection”. In this case, proper consideration of the Gender Guidelines may have led to a finding that this reticence to engage the proper authorities was more than subjective. 8 However, this Court is not mandated to make a finding of fact on this issue. It only notes that beyond the simple mention of the Gender Guide- lines in the beginning of the Board’s reasons, these were not considered in respect to the Principal Applicant’s reticence to engage with authorities, particularly after her father-in-law’s threats. Surely, the situation commanded that the Gender Guidelines receive more particular attention, as the Principal Applicant was a victim of domestic violence that was condoned by her father-in-law, who threatened her and made refer- 342 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

ence to his contacts within the police. It was unreasonable for the Board not to analyze the Gender Guidelines in light of the Principal Applicant’s situation. 9 Moreover, the Board made an implausibility finding in regard to these threats and Marcus’ father’s influence on the police, at paragraph 14 of its decision: I am not persuaded that Marcus’ father has any influence over the decisions of the police to investigate crimes. Although Marcus’ father was involved in an illegal betting operation that required weekly payments to a corrupt police officer, there was no persuasive evidence present to indicate that the police would not investigate Thabata’s allegations if they were rePortod to them or that Marcus’ father had the influence to convince the police to charge Thabatha with a crime instead of Marcus. 10 The case law is clear: implausibility findings must only be made in the clearest of cases (Valtchev v. Canada (Minister of Citizenship & Im- migration), 2001 FCT 776 (Fed. T.D.)). In this case, the Board’s conclusion in regards to Marcus’ father went beyond what the evidence supported. Furthermore, in concluding that Marcus’ father’s influence on the police was limited, the Board failed to adequately consider the Principal Applicant’s reasons for not seeking state protection. 11 Hence, the Board’s decision in regards to the sufficiency of state protection is flawed in two aspects. Firstly, it failed to adequately assess the Gender Guidelines in order to fully address the reasons for which state protection was not sought, and secondly, it made an unreasonable plausibility finding, thus depriving the Applicants of a full and proper assessment of the reasons for which state protection was not sought. As such, the decision falls outside the range of acceptable outcomes defensible in fact and in law. The proper remedy is to send the matter for redetermination before a newly constituted panel of the Board. 12 No question for certification was put forth by the parties, and none arises. Judgment THIS COURT’S JUDGMENT is that: • The application for judicial review is granted. The matter is to be sent for redetermination before a newly constituted panel of the Board. No question is certified. Application granted.