IMMIGRATION LAW REPORTER Fourth Series/Quatri`Eme S´Erie Recueil De Jurisprudence En Droit De L’Immigration VOLUME 2 (Cited 2 Imm

IMMIGRATION LAW REPORTER Fourth Series/Quatri`eme s´erie Recueil de jurisprudence en droit de l’immigration VOLUME 2 (Cited 2 Imm. L.R. (4th))

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[Indexed as: Canada (Minister of Citizenship & Immigration) v. Huntley] Brandon Carl Huntley, Appellant and The Minister of Citizenship and Immigration, Respondent Federal Court of Appeal Docket: A-482-10 2011 FCA 273 Sexton, John M. Evans, Stratas JJ.A. Heard: October 3, 2011 Judgment: October 3, 2011 Immigration and citizenship –––– Appeals to Federal Court of Appeal and Supreme Court of Canada — Certification of questions by Federal Court Trial Division –––– Applicant was white citizen of South Africa — He was found by Refugee Protection Divisions (board) to be refugee — Board held that he had well-founded fear of persecution on ground of his race — This decision received publicity and was criticized as racist by Government of South Africa — Minister of Citizenship and Immigration made application for judicial review to Federal Court to set aside Board’s decision — Application was granted and matter was remitted to board for redetermination — Applicant argued that proceeding constituted abuse of process because Minister brought application in response to diplomatic pressure from South African Government — Federal Court judge rejected this argument and refused to certify questions regarding political interference in refugee proceedings and allegations of perceived bias and lack of independence — Claimant appealed to Federal Court of Appeal, arguing that s. 74(d) of Immigration and Refugee Protection Act had been held not to oust general right of appeal from Federal Court pursuant to s. 27 of Federal Courts Act, when ground of appeal is that applications judge was biased — Appeal dismissed — Despite plain language of s. 74(d), Parliament could not have intended to immunize alleged errors from appellate scrutiny, which would undermine rule of law and public confidence in due administration of justice — However, errors that judge was alleged to have committed did not fall within 2 IMMIGRATION LAW REPORTER 2 Imm. L.R. (4th) this narrow category — So called jurisdictional error invoked by applicant was that judge did not apply reasonableness standard of review to board’s findings of fact — Even if judge erred as alleged, this would be run of mill error of law and not be usurpation of jurisdiction falling outside s. 74(d) — Regarding abuse of process allegations by Minister, judge found that there was no evidentiary basis for this allegation and hence refused to certify said questions of law — Even if abuse of process alleged could be subject of appeal in absence of certified question, judge did not make any reversible error in rejecting allegation as unsupported by evidence. Immigration and citizenship –––– Appeals to Federal Court of Appeal and Supreme Court of Canada — Jurisdiction –––– Applicant was white citizen of South Africa — He was found by Refugee Protection Divisions (board) to be refugee — Board held that he had well-founded fear of persecution on ground of his race — This decision received publicity and was criticized as racist by Gov- ernment of South Africa — Minister of Citizenship and Immigration made application for judicial review to Federal Court to set aside Board’s decision — Application was granted and matter was remitted to board for redetermination — Applicant argued that proceeding constituted abuse of process because Minister brought application in response to diplomatic pressure from South Afri- can Government — Federal Court judge rejected this argument and refused to certify questions regarding political interference in refugee proceedings and allegations of perceived bias and lack of independence — Claimant appealed to Federal Court of Appeal, arguing that s. 74(d) of Immigration and Refugee Pro- tection Act had been held not to oust general right of appeal from Federal Court pursuant to s. 27 of Federal Courts Act, when ground of appeal is that applications judge was biased — Appeal dismissed — Despite plain language of s. 74(d), Parliament could not have intended to immunize alleged errors from appellate scrutiny, which would undermine rule of law and public confidence in due administration of justice — However, errors that judge was alleged to have committed did not fall within this narrow category — So called jurisdictional error invoked by applicant was that judge did not apply reasonableness standard of review to board’s findings of fact — Even if judge erred as alleged, this would be run of mill error of law and not be usurpation of jurisdiction falling outside s. 74(d) — Regarding abuse of process allegations by Minister, judge found that there was no evidentiary basis for this allegation and hence refused to certify said questions of law — Even if abuse of process alleged could be subject of appeal in absence of certified question, judge did not make any reversible error in rejecting allegation as unsupported by evidence. Cases considered by John M. Evans: Huynh v. R. (1996), 1996 CarswellNat 2361, 34 Imm. L.R. (2d) 199, (sub nom. Huynh v. Canada) 36 C.R.R. (2d) 93, (sub nom. Huynh v. Minister of Canada (MCI) v. Huntley John M. Evans 3

Employment & Immigration) 112 F.T.R. 240 (note), (sub nom. Huynh v. Canada) 134 D.L.R. (4th) 612, (sub nom. Huynh v. Canada) [1996] 2 F.C. 976, (sub nom. Huynh v. Minister of Employment & Immigration) 197 N.R. 62, 1996 CarswellNat 647, [1996] F.C.J. No. 494 (Fed. C.A.) — considered Statutes considered: Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 s. 7 — referred to Federal Courts Act, R.S.C. 1985, c. F-7 s. 27 — referred to Immigration and Refugee Protection Act, S.C. 2001, c. 27 Generally — referred to s. 74(d) — considered Rules considered: Federal Courts Rules, SOR/98-106 R. 22 — considered

APPEAL by refugee applicant from judgment reported at Canada (Minister of Citizenship & Immigration) v. Huntley (2010), 15 Admin. L.R. (5th) 1, 375 F.T.R. 250 (Eng.), 93 Imm. L.R. (3d) 36, 2010 CF 1175, 2010 FC 1175, 2010 CarswellNat 4345, 2010 CarswellNat 4386 (F.C.), refusing to certify questions of law.

Rocco Galati, Russell Kaplan, for Appellant / Applicant Bernard Assan, Asha Gafar, for Respondent

John M. Evans:

1 Brandon Carl Huntley, a white citizen of South Africa, was found by the Refugee Protection Division of the Immigration and Refugee Board (Board) to be a refugee. It held that Mr Huntley had a well-founded fear of persecution on the ground of his race. The decision received considerable publicity and was criticised as racist by the Government of South Africa. 2 The Minister of Citizenship and Immigration (Minister) made an application for judicial review to the Federal Court to set aside the Board’s decision. The matter came before Justice Russell (Judge), who held that the Board’s decision was unreasonable in light of the evidence before it. Consequently, he granted the application and remitted the matter to the 4 IMMIGRATION LAW REPORTER 2 Imm. L.R. (4th)

Board for redetermination in accordance with his reasons, which are published at 2010 FC 1175 (F.C.). 3 Mr Huntley also argued that the proceeding constituted an abuse of process because the Minister had brought the application for judicial review in response to diplomatic pressure from the South African Govern- ment, and that for the Court to grant the Minister’s application would create an apprehension that it was biased and lacked independence. The Judge rejected this argument also, having found that there was no evidence that the Minister had made the application for judicial review for a reason other than that he thought that the Board’s decision was wrong. 4 Paragraph 74(d) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA), provides that no appeal lies to this Court from a decision of the Federal Court in matters governed by IRPA, unless the judge who heard the application for judicial review certifies that a serious question of general importance is involved and states the question. 5 In the present case, the Judge refused to certify questions proposed by counsel concerning political interference with IRPA proceedings and the allegations of perceived bias and lack of independence. He held that the questions proposed were hypothetical since he had concluded that there was no factual basis for their premise, namely that the Minister had brought an application for judicial review as a result of diplomatic pressure. 6 Undeterred, counsel for Mr Huntley has appealed to this Court, arguing that paragraph 74(d) has been held not to oust the general right of appeal from the Federal Court pursuant to section 27 of the Federal Courts Act, R.S.C. 1985, c. F-7, when the ground of appeal is that the Applications Judge was biased, or wrongfully assumed or declined jurisdiction. 7 We agree that, despite the apparently plain language of paragraph 74(d), Parliament cannot have intended to immunize alleged errors from appellate scrutiny which, if not subject to review, would undermine the rule of law and public confidence in the due administration of justice. However, in our view, the errors that the Judge is alleged to have committed in this case do not fall within this narrow category. 8 The principal so-called “jurisdictional” error invoked by counsel for Mr Huntley is that the Judge did not apply the reasonableness standard of review to the Board’s findings of fact. Instead, counsel says, he substi- tuted his own view of the evidence for that of the Board and made de Canada (MCI) v. Huntley John M. Evans 5

novo findings of fact. Even if the Judge erred as alleged, failing to apply the appropriate standard of review is a run-of-the-mill error of law, and not a usurpation of jurisdiction falling outside paragraph 74(d). 9 Counsel also argues that Mr Huntley’s appeal should be heard because he alleges abuse of process by the Minister. However, the Judge found that there was no evidentiary basis for this allegation, and hence refused to certify the questions of law proposed by counsel because they were hypothetical. 10 Even if the abuse of process alleged here could be the subject of an appeal in the absence of a certified question, we are not persuaded that the Judge made any reversible error in rejecting the allegation as unsupported by the evidence. It follows that counsel’s related allegations of apprehended bias and lack of independence on the part of the Judge must also fail. 11 In the alternative, counsel submits that paragraph 74(d) violates section 7 of the Canadian Charter of Rights and Freedoms. We do not agree. This issue has been settled by Huynh v. R., [1996] 2 F.C. 976 (Fed. C.A.). 12 Not are we satisfied that, on the facts of this case, Mr Huntley has established that he cannot get a fair hearing when the matter is remitted to the Board. 13 For these reasons the appeal will be dismissed. The totally unmer- itorious nature of this appeal constitutes “special reasons” within the meaning of rule 22 of the Federal Courts Immigration Rules, SOR/93- 22, and costs of the appeal will be awarded to the Minister. Appeal dismissed. 6 IMMIGRATION LAW REPORTER 2 Imm. L.R. (4th)

[Indexed as: Shpati v. Canada (Minister of Public Safety & Emergency Preparedness)] Minister of Public Safety and Emergency Preparedness, Appellant and Zef Shpati, Respondent Federal Court of Appeal Docket: A-451-10 2011 FCA 286 J. Edgar Sexton, John M. Evans, David Stratas JJ.A. Heard: October 4, 2011 Judgment: October 18, 2011 Immigration and citizenship –––– Appeals to Federal Court of Appeal and Supreme Court of Canada — Certification of questions by Federal Court Trial Division –––– Enforcement officer may temporarily defer removal when foreign national provides evidence that events after Pre-Removal Risk Assess- ment (PRRA) expose applicant to risk of serious personal harm — Potential mootness of applicant’s PRRA litigation does not, in and of itself, warrant deferral of removal. Immigration and citizenship –––– Exclusion and removal — Removal from Canada — Appeals and judicial review — Judicial review — Miscellaneous issues –––– S spent first 25 years of his life interned in labour camp in Alba- nia — S escaped, settled in Michigan with wife and children, and became permanent resident of US — Years later, S used his wife’s permanent resident card to bring his brother’s wife into US, and S was deported — S came to Canada and unsuccessfully applied for refugee status — S then unsuccessfully sought Pre-Removal Risk Assessment (PRRA) and permission to apply for permanent resident status from within Canada on humanitarian and compassionate (H&C) grounds — S filed applications for leave and judicial review of these decisions — While those applications for leave were pending, enforcement officer with Canada Border Services Agency sought to remove him to Albania — S’s request that his removal be deferred pending outcome of two applications was refused — S brought unsuccessful application for judicial review of dismissal of PRRA and successful application for judicial review of dismissal of H&C decision — S’s application for judicial review of enforcement officer’s refusal to defer removal was successful, and refusal was declared invalid — Application judge set aside H&C decision for lack of adequate reasons, and remitted it for redetermination — Minister appealed declaration that refusal to defer removal was invalid — Appeal allowed — Enforcement officer had not err in his conclu- Shpati v. Canada 7 sion that application for judicial review of PRRA did not automatically stay removal, and potential mootness of application did not, in and of itself, warrant deferral — It was reasonably open to officer to find that S would not be at risk if returned to Albania — S had not produced new evidence of risk, post-PRRA dismissal — S could always apply to Federal Court for stay of removal pending disposition of judicial review application. Cases considered by John M. Evans J.A.: Baron v. Canada (Minister of Public Safety & Emergency Preparedness) (2009), 2009 CarswellNat 596, 2009 FCA 81, 387 N.R. 278, 79 Imm. L.R. (3d) 157, [2010] 2 F.C.R. 311, 2009 CAF 81, 2009 CarswellNat 5135, 309 D.L.R. (4th) 411, [2009] F.C.J. No. 314 (F.C.A.) — followed Borowski v. Canada (Attorney General) (1989), [1989] 3 W.W.R. 97, [1989] 1 S.C.R. 342, 57 D.L.R. (4th) 231, 92 N.R. 110, 75 Sask. R. 82, 47 C.C.C. (3d) 1, 33 C.P.C. (2d) 105, 38 C.R.R. 232, 1989 CarswellSask 241, 1989 CarswellSask 465, [1989] S.C.J. No. 14 (S.C.C.) — followed El Ouardi v. Canada (Solicitor General) (2005), 2005 CarswellNat 254, 2005 FCA 42, 332 N.R. 76, 48 Imm. L.R. (3d) 157, 2005 CarswellNat 1822, 2005 CAF 42, [2005] F.C.J. No. 189 (Fed. C.A.) — referred to Palka v. Canada (Minister of Public Safety & Emergency Preparedness) (2008), 2008 CAF 165, 2008 CarswellNat 5895, 379 N.R. 239, 2008 CarswellNat 1309, 2008 FCA 165 (F.C.A.) — referred to Patel v. Canada (Minister of Citizenship & Immigration) (2011), 2011 FCA 187, 2011 CarswellNat 2031, 2011 CAF 187, 2011 CarswellNat 3251, 419 N.R. 320, 98 Imm. L.R. (3d) 175 (F.C.A.) — followed Perez v. Canada (Minister of Citizenship & Immigration) (2009), 2009 Car- swellNat 1522, 2009 FCA 171, 82 Imm. L.R. (3d) 167, 393 N.R. 332, 2009 CarswellNat 5164, 2009 CAF 171, [2009] F.C.J. No. 691 (F.C.A.) — followed Prairie Acid Rain Coalition v. Canada (Minister of Fisheries & Oceans) (2006), 265 D.L.R. (4th) 154, [2006] 3 F.C.R. 610, 55 Admin. L.R. (4th) 191, 2006 FCA 31, 2006 CarswellNat 170, 2006 CarswellNat 1217, 2006 CAF 31, 345 N.R. 374, 21 C.E.L.R. (3d) 175 (F.C.A.) — referred to Ramada v. Canada (Solicitor General) (2005), 2005 FC 1112, 2005 Car- swellNat 2439, 53 Imm. L.R. (3d) 74, [2005] F.C.J. No. 1384 (F.C.) — referred to Shpati v. Canada (Minister of Citizenship & Immigration) (2007), 2007 FC 237, 2007 CarswellNat 550 (F.C.) — referred to Shpati v. Canada (Minister of Public Safety & Emergency Preparedness) (2010), 2010 CarswellNat 790, 89 Imm. L.R. (3d) 25, 2010 FC 367 (F.C.) — referred to 8 IMMIGRATION LAW REPORTER 2 Imm. L.R. (4th)

Simoes v. Canada (Minister of Citizenship & Immigration) (2000), 7 Imm. L.R. (3d) 141, 2000 CarswellNat 1328, 187 F.T.R. 219, [2000] A.C.F. No. 936, [2000] F.C.J. No. 936 (Fed. T.D.) — referred to Telfer v. Canada (Revenue Agency) (2009), [2009] D.T.C. 5046, 2009 Car- swellNat 655, (sub nom. CRA v. Telfer) 2009 D.T.C. 5046 (Eng.), [2009] 4 C.T.C. 123, 386 N.R. 212, 2009 CarswellNat 5698, 2009 CAF 23, 2009 FCA 23, [2009] F.C.J. No. 71 (F.C.A.) — referred to Wang v. Canada (Minister of Citizenship & Immigration) (2001), 13 Imm. L.R. (3d) 289, 2001 CarswellNat 2626, [2001] 3 F.C. 682, 2001 FCT 148, 2001 CarswellNat 406, 204 F.T.R. 5, [2001] F.C.J. No. 295 (Fed. T.D.) — considered Statutes considered: Federal Courts Act, R.S.C. 1985, c. F-7 s. 18.1 [en. 1990, c. 8, s. 5] — considered Immigration and Refugee Protection Act, S.C. 2001, c. 27 Generally — referred to s. 48 — considered s. 48(2) — considered s. 72 — referred to s. 74(d) — referred to Regulations considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Immigration and Refugee Protection Regulations, SOR/2002-227 s. 232 — referred to s. 232(c) — referred to

APPEAL by Minister of Public Safety and Emergency Preparedness from judgment, reported at Shpati v. Canada (Minister of Public Safety & Emergency Preparedness) (2010), 93 Imm. L.R. (3d) 117, 2010 FC 1046, 2010 CarswellNat 3877, 2010 CarswellNat 3876, 2010 CF 1046 (F.C.), granting application for judicial review of refusal to defer removal order.

John Provart, Nicole Paduraru, for Appellant Joel Etienne, Dov Maierovitz, for Respondent

John M. Evans J.A.: A. Introduction 1 Is the Federal Court or an immigration enforcement officer the principal decision-maker when foreign nationals request the deferral of their Shpati v. Canada John M. Evans J.A. 9

removal from Canada pending the disposition of an application for judicial review of a negative Pre-Risk Removal Assessment (PRRA)? 2 That is the question underlying the present appeal by the Minister of Public Safety and Emergency Preparedness (Minister) of a decision of the Federal Court, reported as Shpati v. Canada (Minister of Public Safety & Emergency Preparedness), 2010 FC 1046 (F.C.). In that decision, Justice Harrington (Judge) granted an application for judicial review by Zef Shpati and declared invalid an enforcement officer’s refusal to defer his removal from Canada. 3 The Minister says that, in the absence of a statutory stay, the Federal Court is normally the proper forum for individuals seeking to stay their removal, by showing that they meet the tripartite test for granting an in- terlocutory injunction: the existence of a serious question to be decided in the pending judicial review proceeding, irreparable harm to the applicant if a stay is not granted, and the balance of convenience. 4 The Minister notes that section 48 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) obliges a person subject to an enforceable removal order to leave Canada immediately and requires that the order be enforced as soon as is reasonably practicable. He argues that these provisions indicate that the scope of an enforcement officer’s discretion to defer removal is narrow. 48. (1) A removal order is enforceable if it has come into force and is not stayed; (2) If a removal order is enforceable, the foreign national against whom it was made must leave Canada immediately and it must be enforced as soon as is reasonably practicable. 48. (1) La mesure de renvoi est exécutoire depuis sa prise d’effet dès lors qu’elle ne fait pas l’objet d’un sursis. (2) L’étranger visé par la mesure de renvoi exécutoire doit im- médiatement quitter le territoire du Canada, la mesure devant etreˆ appliquée dès que les circonstances le permettent. 5 On the other hand, Mr Shpati argues that enforcement officers should normally defer removal pending the disposition of an application for judicial review of a negative PRRA if satisfied that the application was timely and made in good faith. Otherwise, he says, an individual’s statutory right to seek judicial review of a negative PRRA determination would be rendered nugatory. This is because, once an individual is removed from Canada, the judicial review of the PRRA becomes moot, 10 IMMIGRATION LAW REPORTER 2 Imm. L.R. (4th)

and the PRRA itself cannot be reassessed. Moreover, Mr Shpati submits that it would be inefficient to bifurcate deferral decisions between the Federal Court and immigration officials by limiting the scope of enforcement officers’ discretion under section 48 as suggested by the Minister. 6 In my opinion, the Minister’s view is more consistent than that of Mr Shpati with the text of section 48, the scheme of the IRPA, and the jurisprudence. For the reasons that follow, I would allow the Minister’s appeal and dismiss Mr Shpati’s application for judicial review of the enforcement officer’s refusal to defer his removal.

B. Factual Background 7 Zef Shpati is a national of Albania, where he spent twenty-five years in a labour camp. After escaping from Albania in 1991 he was identified by the United Nations High Commissioner for Refugees as a person of concern and was issued travel documents to the United States, where he was re-settled, and he and his family became permanent residents. 8 In March or April 2005, Mr Shpati was deported to Albania from the United States for immigration fraud, namely, attempting to smuggle his sister-in-law into the country on his wife’s Green Card. In May, he left Europe for Canada and applied for Convention refugee status on his arrival. Finding Mr Shpati not to be credible, a panel of the Refugee Protec- tion Division of the Immigration and Refugee Board (Board) dismissed his claim on March 16, 2006. A year later, the Federal Court (2007 FC 237 (F.C.)) upheld the Board’s decision. 9 In September 2006, Mr Shpati applied for permanent residence from within Canada on humanitarian and compassionate grounds (H&C). This application was refused on January 28, 2009. 10 In June 2009, he also applied for a PRRA, which automatically stayed his removal: Immigration and Refugee Protection Regulations, SOR/2001-227, section 232 (Regulations). In a decision dated October 1, 2009, the PRRA officer rejected the application. He concluded that Mr Shpati was unlikely to be at risk of torture, persecution, death, or cruel and unusual treatment or punishment if returned to Albania. As a result, the statutory stay of removal lapsed and Mr Shpati could be removed from Canada: Regulations, paragraph 232(c). 11 On December 21, 2009, Mr Shpati applied to the Federal Court for leave and for judicial review of the PRRA and the H&C decision. On February 4, 2010, he requested an enforcement officer to defer his re- Shpati v. Canada John M. Evans J.A. 11

moval (then apparently scheduled for February 26, 2010) pending the Court’s disposition of his judicial review applications. The request was refused on March 8, 2010, and Mr Shpati was advised that he was expected to report for removal on March 22, 2010. He applied for leave and for judicial review of the denial of the deferral as well. This is the decision that has led to the present appeal and is described more fully below. 12 On March 17, 2010, the Judge heard motions brought by Mr Shpati for a stay of his removal pending the Court’s determination of his applications for leave and for judicial review of the PRRA, the H&C decision, and the enforcement officer’s refusal to defer his removal. In a decision, dated April 7, 2010 (2010 FC 367 (F.C.)), the Judge granted the motion to stay the refusal to defer on the basis of the tripartite test. He dismissed the other two motions as moot.

C. Decision of the Enforcement Officer 13 The enforcement officer started his careful reasons for decision by noting that the statutory obligation imposed by section 48 of the IRPA to execute a removal order “as soon as is reasonably practicable” gives officers “little discretion to defer removal”. He then addressed each of the submissions made on Mr Shpati’s behalf. 14 Turning first to the submission that Mr Shpati’s removal should be deferred because of the outstanding applications for leave and for judicial review of the PRRA and the H&C decision, he said: I note that the enforcement of Mr Shpati’s removal order does not negate him the right to have his PRRA/H&C reassessed, if judicial review is granted by the Federal Court. 15 He then correctly noted that the IRPA stays removals in certain circumstances, which did not apply in Mr Shpati’s case. Absent a statutory stay, “immigration proceedings are not automatically suspended where pending court applications exist”, although an applicant may apply to the Federal Court for a temporary stay of the execution of a removal order. Consequently, he declined to defer Mr Shpati’s removal on the basis of his outstanding judicial review applications to the Federal Court. 16 Second, the officer found that deferral was not warranted because of a serious risk of harm to Mr Shpati if he were returned to Albania. The enforcement officer noted that the Board, and the PRRA and H&C officers, had already assessed risk and found that he was not a refugee or a person in need of protection. And, since the officer was not satisfied that 12 IMMIGRATION LAW REPORTER 2 Imm. L.R. (4th)

“any new or personalized risk exists”, the allegations of risk on return did not warrant deferring Mr Shpati’s removal. 17 Third, he declined to defer removal because either Mr Shpati was established in Canada, or the best interests of his wife and children in the United States so required.

D. Federal Court Decision 18 The Judge heard the judicial review of the enforcement officer’s refusal to defer, together with the judicial review applications relating to the PRRA and the H&C decision. He upheld the PRRA decision, but set aside the H&C decision for lack of adequate reasons, and remitted it for redetermination. Once the Judge had rendered these decisions, Mr Shpati’s application for judicial review of the enforcement officer’s refusal to defer his removal pending the Federal Court’s disposition of the applications to review the PRRA and the H&C decision arguably became moot. 19 However, the Judge decided to hear the application for judicial review of the deferral decision in the circumstances of the present case, whether or not it was moot (paras. 31 and 36). He reasoned (at para. 31) that there was still a live controversy between the parties because Mr Shpati wished to remain in Canada pending the re-determination of his H&C application. The Judge stated that, even if the application to review the refusal of a deferral were granted, he could not remit the matter to the officer to re-decide because the Court had already judicially reviewed the PRRA and H&C decisions. However, he said, a declaration that the refusal to defer was invalid would be an available remedy. 20 This was the remedy that the Judge granted, having found (at para. 47) that ... the enforcement officer erred in law in stating that if successful in his PRRA, Mr Shpati would be entitled to return to Canada. The Judge stated that, in so concluding, the officer must have overlooked Perez v. Canada (Minister of Citizenship & Immigration), 2009 FCA 171, 82 Imm. L.R. (3d) 167 (F.C.A.) (Perez), where it was held that if a person leaves Canada after a negative PRRA decision, whether volunta- Shpati v. Canada John M. Evans J.A. 13

rily or not, an application for judicial review of that decision becomes moot and the PRRA itself cannot be reassessed. 21 Earlier in his reasons (at para. 42), the Judge had repeated and en- dorsed the following statement in his reasons for decision in the stay motions: Although an application for leave and for judicial review of a negative PRRA does not automatically result in a stay, I find it difficult to accept that Parliament intended that it was “reasonably practicable”, for an enforcement officer, who is not trained in these matters, to deprive an applicant of the very recourse Parliament had given him. 22 As for the scope of the enforcement officer’s discretion to defer removal, the Judge stated (at para. 45): ... an enforcement officer has not been empowered to opine on decisions already rendered on PRRA or H&C applications with risk elements. Nor is he or she in a position to opine on whether an applicant will be successful in an application for leave and for judicial review already filed. I accept that the officer has jurisdiction to defer removal on the basis that a decision will soon be rendered by the Court. However, it is also open to the officer to refuse, leaving it to the applicant to seek a stay from a judge of this Court. 23 The Judge noted (at para. 44) that he had also dealt with the scope of the officer’s discretion to defer in paragraph 47 of his reasons for granting the stay motions, where he had said: Nor do I rule out the possibility that an enforcement officer may defer in circumstances in which new events have occurred after the negative PRRA decision, such as natural disasters in the form of tsu- namis or earthquakes or political upheavals such as “coup d’´etats.” 24 The Judge certified the following two questions, proposed by the Minister, pursuant to IRPA, paragraph 74(d): a. When a foreign national has a negatively determined PRRA, has filed an application for leave and judicial review of that PRRA decision, but continues to maintain the same allegation of risk in a request to defer removal, does an enforcement officer have the discretion to defer removal on that basis alone or must a judicial stay based on the PRRA application for leave and for judicial review be sought in Federal Court? 14 IMMIGRATION LAW REPORTER 2 Imm. L.R. (4th)

b. Does the potential mootness of an applicant’s PRRA litigation upon removal warrant a deferral of removal pending resolution of this same litigation? 25 No questions were certified regarding the Judge’s dismissal of Mr Shpati’s judicial review of the PRRA, or his setting aside of the H&C decision and its pending re-determination. They are therefore not considered in this appeal.

E. Issues and Analysis Issue 1: Standard of review 26 The Minister observed that the Judge seems not to have articulated the standard of review applicable to the enforcement officer’s refusal to defer Mr Shpati’s removal. I agree. 27 In my view, the officer’s decision under section 48 is reviewable on a standard of reasonableness because it involves either the exercise of discretion, or the application to the facts of the words of section 48, “as soon as is reasonably practicable”. However, any question of law on which the officer based his decision (such as the scope of the statutory authority to defer) is reviewable on a standard of correctness: Patel v. Canada (Minister of Citizenship & Immigration), 2011 FCA 187 (F.C.A.) at paras. 26-27. Enforcement officers have no delegated legal power to decide questions of law. 28 Since the issue in this appeal is whether the officer’s decision was either unreasonable or based on an erroneous view of the law, the Court effectively steps into the shoes of the Judge of the Federal Court who heard Mr Shpati’s application for judicial review: see, for example, Prairie Acid Rain Coalition v. Canada (Minister of Fisheries & Oceans), 2006 FCA 31 (F.C.A.); Telfer v. Canada (Revenue Agency), 2009 FCA 23 (F.C.A.).

Issue 2: Did the enforcement officer err in law by failing to take into account the fact that Mr Shpati’s application for judicial review of the PRRA was potentially moot if he was removed before it was decided? 29 Contrary to the view expressed by the Judge (at para. 47), the officer did not state that if Mr Shpati were successful in his application for judi- Shpati v. Canada John M. Evans J.A. 15

cial review of the PRRA, “he would be entitled to return to Canada.” What the enforcement officer wrote was more nuanced: ... the enforcement of Mr Shpati’s removal order does not negate him the right to have his PRRA/H&C reassessed, if judicial review is granted by the Federal Court. In my respectful opinion, the refusal to defer should not have been set aside as erroneous in law on the basis of this statement. 30 First, even though an applicant’s removal from Canada renders her or his application for judicial review of a PRRA moot, the Court may nonetheless exercise its discretion to hear it on the basis of the factors set out in Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342 (S.C.C.). If the Court decides to hear the application despite its mootness and subsequently sets aside the PRRA decision, the Minister could permit the applicant to return to Canada pending the re-determination of the PRRA. In these circumstances, the PRRA application would not be moot. Hence, the officer’s statement of the law could be characterized as elliptical and incomplete, rather than as demonstrating that he misunderstood the law. 31 Second, the written submissions to the enforcement officer by Mr Shpati’s counsel requesting that his removal be deferred pending the determination of the applications of leave and for judicial review made no mention of the implications of Perez. Not surprisingly, therefore, the officer’s reasons for refusing to defer focus principally on the fact that, absent a stay by the Federal Court or a statutory stay, an application for judicial review of a PRRA does not automatically stay a removal. I see no error in this statement of the law. Thus, even if the enforcement officer did misstate the law as found by the Judge, it is not clear to me that the impugned sentence in the officer’s reasons was the basis of his refusal to defer Mr Shpati’s removal because of the outstanding judicial review application. 32 The materiality of the officer’s alleged error of law is further reduced by his conclusion that, in view of the prior negative decisions by the Board, and by the PRRA and H&C officers, and in the absence of information about a new risk, the officer was not satisfied that Mr Shpati’s removal should be deferred because he would be at risk if returned to Albania. The officer also concluded that neither Mr Shpati’s establishment in Canada nor the best interests of his children warranted a deferral. 16 IMMIGRATION LAW REPORTER 2 Imm. L.R. (4th)

33 Hence, if one looks beyond the officer’s reasons to the outcome of the process, I am not persuaded that his decision falls outside the range of those reasonably open to him on the facts and the law. 34 This, in my opinion, is sufficient to dispose of the appeal. However, in case I am wrong, and in order to attempt to reduce uncertainty in the law, it is appropriate for this Court to address the issue raised in the certified question: does the potential mootness of the pending PRRA litigation warrant deferral of removal? 35 In my view, the answer to this question is no. If it were otherwise, deferral would be virtually automatic whenever an individual facing removal had instituted judicial review proceedings in respect of a negative PRRA. This would be tantamount to implying a statutory stay in addition to those expressly prescribed by the IRPA, and would thus be contrary to the statutory scheme. 36 Indeed, counsel for Mr Shpati were not prepared to go this far. Their position and, perhaps, that of the Judge (at para. 42) was that the potential mootness of the PRRA litigation was not determinative in every case, but that it is an error of law for an enforcement officer not to take it into account when determining requests for the deferral of removal pending the disposition of judicial review proceedings challenging a PRRA. 37 I disagree with this argument. First, the potential mootness of the PRRA litigation would be a factor whenever an enforcement officer is asked to defer a removal pending the determination of a judicial review of a negative PRRA. As a result, it would be formalistic to insist that officers’ reasons must refer to it in every case as a condition precedent of the validity of their decision. 38 Second, the potential mootness of the underlying judicial review application resulting from the removal of the applicant does not necessarily constitute irreparable harm to the applicant under the tripartite test so as to warrant the grant of a judicial stay: El Ouardi v. Canada (Solicitor General), 2005 FCA 42 (Fed. C.A.) at para. 8; Palka v. Canada (Minister of Public Safety & Emergency Preparedness), 2008 FCA 165 (F.C.A.) at para. 20. However, the Judge’s decision granting Mr Shpati’s motion for a stay seems to have given rise to divergent views in the Fed- eral Court: see paras. 37-40 of his reasons for the decision that is the subject of the present appeal. 39 If mootness does not in itself amount to irreparable harm for the purpose of the tripartite test for the grant of a judicial stay of removal, I see Shpati v. Canada John M. Evans J.A. 17

no reason why enforcement officers should always be legally required to consider it when determining a request for deferral pending the disposition of PRRA litigation. 40 Consequently, in my opinion, the enforcement officer in the present case could refuse to defer Mr Shpati’s removal from Canada without considering the implications of Perez, especially since the submissions made to the officer on Mr Shpati’s behalf made no mention of Perez and the potential mootness of the pending applications for leave and for judicial review. Potential mootness is a consideration that the Federal Court is better placed to take into account when weighing all the factors relevant under the tripartite test for determining a motion for a judicial stay.

Issue 3: When determining a request for removal, is an enforcement officer required to consider the risk to the applicant if his removal were not deferred pending the disposition of PRRA litigation? 41 As already noted, the officer rejected Mr Shpati’s argument on risk by pointing out that the Board had rejected his claim for refugee status, a decision upheld by the Federal Court, and that his PRRA application had also been dismissed. The officer further stated that he was refusing to defer on the ground of risk because Mr Shpati had produced no evidence of some new (that is, post-PRRA) risk to which he would be exposed it returned to Albania. I infer from this that if Mr Shpati had such evidence, the officer would have considered whether it warranted deferral and ex- ercised his discretion accordingly. 42 In my view, this is an accurate statement of the law. It is consistent with the position adopted by this Court in Baron v. Canada (Minister of Public Safety & Emergency Preparedness), 2009 FCA 81, [2010] 2 F.C.R. 311 (F.C.A.) (Baron). Baron concerned an enforcement officer’s power to defer removal pending the determination of an H&C application. The present case is analogous to Baron in that there is no statutory stay of removal pending the determination of either an H&C application or a judicial review application with respect to a negative PRRA. 43 In Baron (at para. 51), Justice Nadon indicated the kinds of new risk that an enforcement officer may consider when deciding whether to defer a removal. Paraphrasing Justice Pelletier, then of the Federal Court, in Wang v. Canada (Minister of Citizenship & Immigration), 2001 FCT 148, [2001] 3 F.C. 682 (Fed. T.D.), also a case dealing with a request to 18 IMMIGRATION LAW REPORTER 2 Imm. L.R. (4th)

an enforcement officer for a deferral pending the determination of an H&C application, Justice Nadon said: In order to respect the policy of the Act which imposes a positive obligation on the Minister, while allowing for some discretion with respect to the timing of a removal, deferral should be reserved for those applications where failure to defer will expose the applicant to the risk of death, extreme sanction or inhumane treatment. With respect to H&C applications, absent special considerations, such applications will not justify deferral unless based upon a threat to personal safety. 44 When, as in the present appeal, an officer is requested to defer removal after a negative PRRA, any risk relied on must have arisen after the PRRA. In addition to new risk of harm, other personal exigencies have been held to warrant a deferral because removal at that time would not be reasonably practicable: see, for example Simoes v. Canada (Minister of Citizenship & Immigration) (2000), 7 Imm. L.R. (3d) 141 (Fed. T.D.) at para. 12; Ramada v. Canada (Solicitor General), 2005 FC 1112, 53 Imm. L.R. (3d) 74 (F.C.) at para. 3 (requests for deferral pending H&C decisions). 45 It is not possible to provide a complete list of the considerations capa- ble of rendering removal not “reasonably practicable”. However, both the primary statutory duty to remove, and the language chosen by Parlia- ment to confine enforcement officers’ discretion (« les circonstances le permettent » in the French version of the text), indicate that the range is relatively narrow. Their functions are limited, and deferrals are intended to be temporary. Enforcement officers are not intended to make, or to re- make, PRRAs or H&C decisions. 46 In response to the above analysis, Mr Shpati argues that enforcement officers must be able to defer removal on the basis that a pending application for leave and for judicial review was made in good faith. Other- wise, he says, applicants would be effectively denied the benefit of the statutory right of judicial review conferred by section 18.1 of the Federal Courts Act, R.S.C. 1985, c. F-7, because PRRA litigation is potentially moot after their removal. He says that the right to apply for judicial review of a decision of a “federal board, commission or other tribunal” under section 18.1 includes decisions of an enforcement officer under section 48. In addition, the judicial review provisions in IRPA, section 72 apply to all decisions taken under the Act. Shpati v. Canada John M. Evans J.A. 19

47 This may have been what the Judge had in mind when he said (at para. 42): Although an application for leave and for judicial review of a negative PRRA does not automatically result in a stay, I find it difficult to accept that Parliament intended that it was “reasonably practicable”, for an enforcement officer, who is not trained in these matters, to deprive an applicant of the very recourse Parliament had given him. 48 I do not agree with this argument. First, because good faith in this context is a very low threshold, a deferral would tend to be granted in most cases where an applicant had made an application for judicial review of a negative PRRA. The adoption of Mr Shpati’s argument would be almost tantamount to providing a statutory stay on removal in a situation which is not one of those expressly provided by the IRPA, and would therefore be inconsistent with the scheme enacted by Parliament and section 48 in particular. 49 Second, the fact that an individual’s removal renders PRRA litigation potentially moot does not abrogate that person’s right under section 18.1 to make an application for judicial review of the enforcement officer’s refusal to defer because the Court may exercise its discretion to hear the matter despite its mootness. Nonetheless, removal does make it more difficult for an applicant to obtain redress. However, the answer to this is that an applicant can always apply to the Federal Court for a stay of removal pending the disposition of the judicial review application. 50 Hence, limiting the scope of the enforcement officer’s discretion in the manner set out in these reasons does no violence to the integrity of the Federal Court’s jurisdiction under section 18.1 and accords with the policy of the IRPA that foreign nationals must leave Canada immediately after a departure order becomes enforceable and that the order must be executed as soon as is reasonably practicable. 51 The Federal Court can often consider a request for a stay more com- prehensively than an enforcement officer can a deferral. This may result in a degree of bifurcation between the Federal Court and enforcement officers. However, in my opinion, it is the decision-making scheme that Parliament has enacted. 20 IMMIGRATION LAW REPORTER 2 Imm. L.R. (4th)

F. Conclusions 52 For the above reasons, I would allow the Minister’s appeal, dismiss Mr Shpati’s application for judicial review, and answer the certified questions as follows: Question 1: When a foreign national has a negatively determined PRRA, has filed an application for leave and judicial review of that PRRA decision, but continues to maintain the same allegation of risk in a request to defer removal, does an enforcement officer have the discretion to defer removal on that basis alone or must a judicial stay based on the PRRA application for leave and for judicial review be sought in Federal Court? Answer: An enforcement officer may temporarily defer removal when the foreign national provides evidence that events after the PRRA expose the applicant to a risk of serious personal harm if returned. Otherwise, the applicant may seek a judicial stay in the Federal Court. Question 2: Does the potential mootness of an applicant’s PRRA litigation upon removal warrant a deferral of removal pending resolution of this same litigation? Answer: The potential mootness of an applicant’s PRRA litigation does not, in and of itself, warrant a deferral of removal.

J. Edgar Sexton J.A.:

I agree

David Stratas J.A.:

I agree Appeal allowed. Valencia Gutierrez v. Canada (MCI) 21

[Indexed as: Valencia Gutierrez v. Canada (Minister of Citizenship & Immigration)] Jesica Jannette Valencia Gutierrez and Juan Manuel Santamaria Cervantes, Applicants and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-444-11 2011 FC 939 Leonard S. Mandamin J. Heard: July 19, 2011 Judgment: July 27, 2011 Immigration and citizenship –––– Refugee protection — Elements of pro- tected refugee status — Protection of country of nationality — Internal flight alternative –––– Applicant was citizen of Mexico — Gang had tried to recruit applicant’s brother-in-law, who was police officer, but he refused — Ap- plicant claimed she received death threats from gang when she tried to report her brother-in-law’s murder — Applicant claimed gang tried to kidnap her — Ap- plicants came to Canada and claimed Convention refugee status — Claim was dismissed — Board found it implausible that police would refuse to investigate when country documents showed that police forces actively investigate murders of officers — Board found that applicants had internal flight alternatives and there would be adequate state protection available to applicants there — Board found that applicants’ fear of persecution by criminals was not Convention nexus category, as fear of criminality does not constitute membership of social group defined by Convention — Applicants brought application for judicial review — Application granted — Board erred in its decision on availability of state protection — By time applicants needed state protection, agency cited by board as providing protection in Mexico was in serious decline and actually was dissolved by 2010 — Board misinterpreted country documents that it relied upon in its state protection analysis for its analysis of applicants’ internal flight alternative — Documents actually supported applicants’ fears and did not support board’s finding that state protection was available. Cases considered by Leonard S. Mandamin J.: Aguebor v. Canada (Minister of Employment & Immigration) (1993), 1993 Car- swellNat 303, (sub nom. Aguebor v. Ministre de l’Emploi & de l’Immigration) 160 N.R. 315, [1993] F.C.J. No. 732 (Fed. C.A.) — referred to 22 IMMIGRATION LAW REPORTER 2 Imm. L.R. (4th)

Esquivel v. Canada (Minister of Citizenship & Immigration) (2009), 2009 CF 468, 2009 CarswellNat 4020, 2009 FC 468, 2009 CarswellNat 1215 (F.C.) — referred to Ferguson v. Canada (Minister of Citizenship & Immigration) (2002), 2002 Car- swellNat 3328, 2002 FCT 1212, 2002 CarswellNat 3949, 2002 CFPI 1212, [2002] F.C.J. No. 1636 (Fed. T.D.) — referred to Hidalgo v. Canada (Minister of Citizenship & Immigration) (2009), 2009 Car- swellNat 2189, 2009 FC 707, 2009 CF 707, 2009 CarswellNat 4038 (F.C.) — referred to Khosa v. Canada (Minister of Citizenship & Immigration) (2009), 82 Admin. L.R. (4th) 1, 2009 SCC 12, 2009 CarswellNat 434, 2009 CarswellNat 435, 304 D.L.R. (4th) 1, 77 Imm. L.R. (3d) 1, 385 N.R. 206, (sub nom. Canada (Citizenship & Immigration) v. Khosa) [2009] 1 S.C.R. 339, [2009] S.C.J. No. 12 (S.C.C.) — considered Khosa v. Canada (Minister of Citizenship & Immigration) (2010), 361 F.T.R. 249 (Eng.), 2010 CarswellNat 147, 2010 FC 83, 2010 CarswellNat 727, 2010 CF 83 (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 Ocampo Lopez v. Canada (Minister of Citizenship & Immigration) (2010), 2010 FC 1176, 2010 CF 1176, 2010 CarswellNat 4912, 2010 CarswellNat 4913, [2010] A.C.F. No. 1589, [2010] F.C.J. No. 1589 (F.C.) — considered Rodriguez Perez v. Canada (Minister of Citizenship & Immigration) (2009), 2009 CF 1029, 2009 CarswellNat 5885, 2009 FC 1029, 2009 CarswellNat 3187 (F.C.) — referred to Rojas v. Canada (Minister of Citizenship & Immigration) (2005), 2005 Car- swellNat 1600, 2005 FC 772, 2005 CF 772, 2005 CarswellNat 5470 (F.C.) — referred to Sanchez Rovirosa v. Canada (Minister of Citizenship & Immigration) (2011), 2011 FC 48, 2011 CarswellNat 97, [2011] F.C.J. No. 67 (F.C.) — considered Thirunavukkarasu v. Canada (Minister of Employment & Immigration) (1993), 1993 CarswellNat 160, 1993 CarswellNat 1351, 22 Imm. L.R. (2d) 241, 109 D.L.R. (4th) 682, [1994] 1 F.C. 589, 163 N.R. 232, [1993] F.C.J. No. 1172 (Fed. C.A.) — considered Valencia Gutierrez v. Canada (MCI) Leonard S. Mandamin J. 23

Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 96 — considered s. 97 — considered s. 97(1)(a) — considered s. 97(1)(b)(i) — considered s. 97(1)(b)(ii) — considered Treaties considered: Convention Relating to the Status of Refugees, 1951, C.T.S. 1969/6; 189 U.N.T.S. 150 Generally — referred to

APPLICATION for judicial review of refusal of Convention refugee claim.

Mr. Simon Yu, for Applicants Ms Camille Audain, for Respondent

Leonard S. Mandamin J.:

1 The Applicants, Ms. Jesica Jannette Valencia Gutierrez and her spouse, Mr. Juan Manuel Santamaria Cervantes, apply for judicial review of the decision of the Immigration and Refugee Board’s Refugee Protec- tion Division [RPD] finding that the Applicants were not Convention Refugees or persons in need of protection. 2 Ms. Valencia, the principal Applicant, testified she received death threats from Los Zetas gang members after her attempts to report the murder of her brother-in-law, a police officer, were met with inaction by the local police. 3 The RPD found the Applicants to be generally credible, but found it implausible that the police refused to investigate the incident on the basis that country documents reported that police forces actively did investigate police murders. The RPD found that the Applicants, being victims of criminality, lacked the required nexus to a ground listed under the Convention Relating to the Status of Refugees [the Convention] and that the Applicants had internal flight alternatives [IFA] available to them in Mexico City and Guadalajara. In coming to this conclusion, the RPD found that state protection would be reasonably forthcoming to them in both cities, based on documentary evidence that the government was making serious efforts to address police problems. 24 IMMIGRATION LAW REPORTER 2 Imm. L.R. (4th)

4 The Applicants submit that the RPD erred in finding an IFA in Mex- ico City or Guadalajara, as the evidence indicates that the Los Zetas criminal gang is very sophisticated and active throughout Mexico. The Applicants take issue with the RPD’s state protection analysis. Finally, the Applicants dispute the RPD’s implausibility finding, submitting that their personal experience showed that state protection was not forthcoming. 5 I conclude that the RPD erred in coming to its decision on the question of the availability of state protection in the IFA and grant the application for judicial review for the following reasons.

Background 6 The Applicants are citizens of Mexico. The principal Applicant’s brother-in-law, a police officer, had been approached by Los Zetas gang to work with them but he refused. He then transferred from Michoacan state to Mexicali, but was again confronted by Los Zetas members and was murdered when he again refused to cooperate with them. 7 At her brother-in-law’s funeral, the principal Applicant spoke of her intention to report the murder to the police. Her efforts to report the murder to the police were ignored. 8 The principal Applicant believed her remarks at the funeral were overheard by gang members and she received death threats. In Septem- ber 2007, gang members attempted to abduct the principal Applicant. Her father intervened to prevent her kidnapping but was injured as a result. The principal Applicant tried to report the adduction attempt but the local police would not act on her complaint. 9 The principal Applicant and her husband left Mexico in November 2007 and filed claims for refugee protection in January 2008.

Decision under review 10 The Immigration and Refugee Board, Refugee Protection Division member refused the Applicants’ claim for refugee protection in January 2011. 11 The RPD found the Applicants credible regarding the events surrounding the murder of the brother-in-law and the threats to the principal Applicant. However, the RPD found implausible the Applicants’ claim that the police at all levels refused to investigate the incident because Valencia Gutierrez v. Canada (MCI) Leonard S. Mandamin J. 25

country documents indicated that police forces actively investigate murders of police officers. 12 The RPD also found that the Applicants’ fear of persecution by criminals did not fall into one of the Convention nexus categories, as fear of criminality does not constitute membership of a social group defined under the Convention. 13 Finding that the Applicants did not meet the requirements for s.96 of the Immigration and Refugee Protection Act, S.C. 2001, c.27 [IRPA], the RPD considered s.97 and the question of an IFA in Mexico. 14 The RPD found that an IFA was available for the Applicants in Mex- ico City or Guadalajara. The RPD considered the Applicants’ claim that they would not be safe anywhere in Mexico from Los Zetas gang members but held that the documentary evidence demonstrates that state protection would be reasonably forthcoming to them in either of the cities. 15 The RPD relied on national documentation information that Mexico was making serious efforts to professionalize the police and address problems of corrupt officials, and that public officials are punished for misconduct. The RPD listed some of the state protection resources it considered available in particular the both cities specifically identifying the Federal Investigative Agency, also known as the AFI. As such the RPD found there was no possibility of the Applicants being persecuted or harmed in Mexico City or Guadalajara because of the availability of state protection. 16 The RPD also found that it would not be unduly harsh for the Appli- cants to move to Mexico City or Guadalajara, noting that the male Appli- cant had prior experience as a cabinet maker and would have no significant impediment in finding work in either city. 17 The RPD concluded the Applicants were neither Convention refugees nor persons in need of protection and rejected their claims.

Legislation 18 The Immigration and Refugee Protection Act, S.C. 2001, c. 27 provides: 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, 26 IMMIGRATION LAW REPORTER 2 Imm. L.R. (4th)

(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... 96. A qualité de réfugié au sens de la Convention — le réfugié—la personne qui, craignant avec raison d’être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance a` un groupe social ou de ses opinions politiques: a) soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de chacun de ces pays; b) soit, si elle n’a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner. 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; Valencia Gutierrez v. Canada (MCI) Leonard S. Mandamin J. 27

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,

Issues 19 The Applicants raise the following issues: i. Did the RPD err in dismissing the Applicants’ claim that the police at all levels would not investigate the brother-in-law’s murder? ii. Did the RPD err in its assessment of the internal flight alternative issue? iii. Did the RPD err in its assessment of state protection? 20 The Respondent submits that the findings were supported by the evidence and were not unreasonable.

Standard of Review 21 The standard of review for findings of an IFA is reasonableness: Esquivel v. Canada (Minister of Citizenship & Immigration), 2009 FC 468 (F.C.), and New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9 (S.C.C.). 22 Reasonableness is also the applicable standard of review for the RPD’s findings on state protection: Hidalgo v. Canada (Minister of Citizenship & Immigration), 2009 FC 707 (F.C.), at para 30; Rodriguez Perez v. Canada (Minister of Citizenship & Immigration), 2009 FC 1029 (F.C.), at para 25.

Analysis Implausibility Finding 23 The Applicants take issue with the RPD’s finding that it was implausible that the police would have refused to deal with the Applicants’ report of their relative’s murder by relying on one document saying that the police would investigate murders of police officers but not accepting the 28 IMMIGRATION LAW REPORTER 2 Imm. L.R. (4th)

Applicant’s sworn testimony regarding the lack of police investigation together with supporting documentary evidence of police corruption. 24 The Respondent submits that the RPD may make adverse findings of credibility on the basis that the evidence is simply implausible: Aguebor v. Canada (Minister of Employment & Immigration) (1993), 160 N.R. 315 (Fed. C.A.) at para 4. 25 The Respondent points out that although the principal Applicant reported in her Personal Information form (PIF) that the family learned of the killing from the police investigation report, she says she was warned that she would be killed if she reported the crime to the police. The Re- spondent argues that this appears to be a contradiction, given that a police investigation report for the murder already existed at the time of the funeral. 26 The Court should not re-weigh the evidence. Justice Binnie, speaking for the majority in Khosa v. Canada (Minister of Citizenship & Immigra- tion), 2009 SCC 12 (S.C.C.) at para 61, stated that finding it unreasonable for a decision-maker to weigh one factor more heavily than another factor is a form of reweighing the evidence: 27 The RPD found that Mexican police forces do actively investigate murders of police and security officials. The document on which the RPD relied in coming to this conclusion is a 2007 article by Benjamin Nelson Reames titled “A Profile of Police Forces in Mexico.” The article refers to the murders of police officers: ...in early 2005 Fox reorganized and revamped the federal public security apparatus on his own in the wake of three incidents: the lynch- ing of several police officers, a massacre in Cancun (related to police corruption), and narco-related murders of prison officials. (page 117). Widely seen as responding to the lynchings of federal police officers in the outskirts of Mexico City, President Fox revamped the federal public security apparatus. (page 125) (emphasis added) 28 I note that there was evidence before the RPD of a police investigation report of the brother-in-law’s murder. The principal Applicant had stated in her Personal Information Form [PIF] that “The family learned of this event from the police investigation report.” Thus, there is evidence in the principal Applicant’s own PIF statement upon which, in addition to the country documentation, the RPD could find it implausible Valencia Gutierrez v. Canada (MCI) Leonard S. Mandamin J. 29

the principal Applicant’s claim that the police would not investigate the murder of a policeman. The RPD considered the Applicants’ testimony and the documentary evidence.

Internal Flight Alternative 29 The availability of an IFA is explained in Thirunavukkarasu v. Canada (Minister of Employment & Immigration) (1993), [1994] 1 F.C. 589 (Fed. C.A.) at para 13: It is not a question of whether in normal times the refugee claimant would, on balance, choose to move to a different, safer part of the country after balancing the pros and cons of such a move to see if it is reasonable. Nor is it a matter of whether the other, safer part of the country is more or less appealing to the claimant than a new country. Rather, the question is whether, given the persecution in the claimant’s part of the country, it is objectively reasonable to expect him or her to seek safety in a different part of that country before seeking a haven in Canada or elsewhere. Stated another way for clarity, the question to be answered is, would it be unduly harsh to expect this person, who is being persecuted in one part of his country, to move to another less hostile part of the country before seeking refugee status abroad? (emphasis added) 30 The Applicants dispute the reasonableness of the RPD’s conclusion of the availability of an IFA in Mexico City or Guadalajara. The Appli- cants point out that they had testified that: • the Los Zetas gang is everywhere in Mexico; • they had heard of Los Zetas gang members being present in Mex- ico City and Guadalajara; and • they could not relocate within Mexico due to criminality throughout the country. 31 In addition, the Applicants submit that the documentary evidence supports their position. The Immigration and Refugee Board’s Response to Information Request [RIR] noted that: Los Zetas is “the most technologically advanced, sophisticated cartel operating in Mexico” ... Los Zetas are present in 13 Mexican states and in 43 cities in the US ... The area they cover extends from El Paso to the US/Mexico border, south through the state of Veracruz and east through the state of Tabasco, and into the Yucatan penin- 30 IMMIGRATION LAW REPORTER 2 Imm. L.R. (4th)

sula. According to NPR, their territory crosses through the State of Chiapas and extends to Guatemala... 32 The Applicants submit that the RPD did not state why it believed the gang members could not reach the Applicants in the two IFAS despite the Los Zetas gang is reported to have an extensive network and presence in Mexico, and is a technologically advanced, sophisticated and violent gang. The Applicants say the RPD focused on the male Applicant’s employment prospects instead of the threat of Los Zetas in the IFA location. 33 The Respondent submits that the available evidence did not contradict the findings of the RPD. The Respondent submits that the RPD carefully analyzed the Applicants’ allegations but found that the evidence presented was not sufficient to rebut the presumption that the state could protect them in the IFA locations. 34 Essentially, it would appear that the RPD had accepted widespread problems of criminality throughout Mexico, but found that state protection from criminality was available to the Applicants in the identified IFAs of Mexico city and Guadalajara. The gang members threatening the principal Applicant were local members and not likely to locate the Ap- plicants in the large metropolitan IFAs. In that respect the RPD’s finding is reasonable aside from the report that the Los Zetas’ reach was widespread.

State Protection 35 The Applicants submit that the RPD erred in only focusing on the efforts of the Mexican government to fight crime and corruption when determining there was state protection. The Applicants submit that “serious efforts” is not the correct test in assessing state protection, and instead, the proper test requires “actual effectiveness of the protection”: Ocampo Lopez v. Canada (Minister of Citizenship & Immigration), 2010 FC 1176 (F.C.) [Lopez]. 36 The Respondent reminds that the onus is on the Applicant to provide clear and convincing evidence of the state’s inability to protect them: Rojas v. Canada (Minister of Citizenship & Immigration), 2005 FC 772 (F.C.), at para 45 and that one must not set too high a standard for state protection: Ferguson v. Canada (Minister of Citizenship & Immigration), 2002 FCT 1212 (Fed. T.D.) at para 7. 37 In Sanchez Rovirosa v. Canada (Minister of Citizenship & Immigra- tion) [2011 CarswellNat 97 (F.C.)] at para 8, Justice Snider noted that the Valencia Gutierrez v. Canada (MCI) Leonard S. Mandamin J. 31

determinative finding in Lopez was not whether Mr. Lopez had made sufficient efforts to seek protection, but rather that the RPD had failed to properly consider the documentary evidence before it. Since it is presumed the RPD is expert in assessing country conditions, the RPD is expected to give proper consideration of country condition documentation. 38 The RPD is presumed to have considered all the documentation before it even if not referred to: Khosa v. Canada (Minister of Citizenship & Immigration), 2010 FC 83 (F.C.). When the RPD specifically refers to a country condition document, I take it that it is a document upon which the RPD relies. 39 The RPD specifically refers to two country condition documents. In addition to the cited 2007 article “A Profile of Police Forces in Mexico” in paragraph 27 above, the RPD also refers to a 2010 article by Daniel Sabet titled “Police Reform in Mexico: Advances and Persistent Obstacles”. 40 In assessing the 2007 article, the RPD states: “As the country documents cited in Exhibit 5 indicate that police forces do actively investigate murders of police and security officials, I find it implausible that police at all levels would have refused to take any action to investigate this murder.” 41 What I find significant is that this article refers to the AFI, an agency to which the RPD indicates as a police agency the Applicants may turn to for assistance. The 2007 article stated: The PGR reconfigured and renamed the Federal Judicial Police which was much maligned for corruption and ineffectiveness. The Federal Investigation Police replaced the Federal Judicial Police and, at least nominally invited comparisons to the U.S. Federal Bureau of Investigation (FBI). In 2004 AFI had a budget of 2.62 billion pesos, thus accounting for about a third of PGR spending. That same year the AFI’s forces consisted of more than 5,000 judicial police officers, 1,600 investigators, and 450 specialists. 42 The RPD states in its 2010 decision: If by some chance the claimants were located by those they fear from Michoacan, the documentary evidence demonstrates that state protection would be reasonably forthcoming to them in Mexico City or Guadalajara.” 32 IMMIGRATION LAW REPORTER 2 Imm. L.R. (4th)

43 The RPD reasoned: I agree with counsel and the claimants that criminality and corruption do exist throughout Mexico. While the claimants fear that the criminals and public officials can commit criminal or corrupt acts with impunity, country documents show that Mexico is making serious efforts to professionalize the police and address problems of corrupt officials. There are many state agencies that address criminality and corruption to assist Mexicans in obtaining state protection. The documentary evidence also shows that public officials, including the police and the army, are punished for their misconduct. Furthermore, there are many resources available to lodge a complaint in Mexico City or Guadalajara such as the AFI, the Federal Investi- gative Agency, whose mandate includes dealing with corruption in police and other officials. (emphasis added) 44 However, when reading the 2010 article, Police Reform in Mexico: Advances and Persistent Obstacles, cited by the RPD, one finds the following passages reporting problems besetting the AFI: The centerpiece of the Fox era police reform, however, was the dissolution of the scandal ridden PJF and the creation of what was intended to be a new model of professional investigative policing, the Federal Investigations Agency (Agendcia Federal de Investigaciones - AFI)...... News reports suggest a decline in the AFI’s ability to carry out its functions due to a drop in personnel, resources, and infrastructure. Much of the AFI’s newer recruits transferred over to the SSP, leaving critics to allege the remaining officers were holdovers from the old and discredited Federal Judicial Police. ... Second, when the AFI was created in 2001 it was heralded as a new model of policing and the solution to Mexico’s policing problems. The subsequent dissolution of the agency seemed to repudiate this message and increased skepticism towards yet another police force. ... (emphasis added) 45 The AFI appears to have started out with great promise but by the time the Applicants had need of state protection, the AFI was in serious decline. Reviewing the timeline of events, the attempted abduction of the principal Applicant occurred in 2007 and the Applicants fled Mexico Valencia Gutierrez v. Canada (MCI) Leonard S. Mandamin J. 33

2008 because they feared the Los Zetas gang and did not believe state protection was available to them. They maintained this belief in 2010 when the RPD issued its decision finding the AFI was a police agency the Applicants could turn to for protection. The 2007 Reames article reported on the 2001 creation of the AFI but by 2010 the Sabet article was reporting on its “dissolution”. 46 It is clear to me that the RPD misinterpreted the country documents it relied upon in its state protection analysis in its IFA analysis. The very country documents cited by the RPD support the Applicants’ fears rather than the RPD’s assurances of the availability of state protection. 47 I conclude that the RPD misinterpreted the country documents it relied upon. In such circumstances, the application for judicial review succeeds.

Conclusion 48 I grant the application for judicial review. The matter is to be referred for re-determination by a differently constituted panel. 49 Neither the Applicants nor the Respondent proposed a question of general importance for certification and I do not certify any question.

Judgment THIS COURT ORDERS AND ADJUDGES that: 1. The application for judicial review is granted and the matter is remitted for reconsideration by a differently constituted panel. 2. I do not certify a question of general importance. Application granted. 34 IMMIGRATION LAW REPORTER 2 Imm. L.R. (4th)

[Indexed as: Botezatu v. Canada (Minister of Citizenship & Immigration)] Elena Marylene Botezatu and Valeriu Botezatu, Applicants and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-7614-10 2011 FC 917 Roger T. Hughes J. Heard: July 20, 2011 Judgment: July 21, 2011 Immigration and citizenship –––– Exclusion and removal — Inadmissible classes — Criminality –––– Applicants were married citizens of Romania who had been criminally charged in home country — Wife came to Canada alone and applied for refugee protection; husband followed five years later and made same application; applications were denied — Claim was rejected on first hearing; court ordered that matter be heard by different member of Immigration and Refugee Board (Board) — Board determined that applicants had engaged in criminality in Romania and were both excluded from definition of Convention refugee — Applicants brought application for judicial review — Application granted — Applicants were not convicted of any crime in Romania; first charges laid against them were annulled in court — Respondent did not point to any evidence contradicting letter on applicants’ behalf supplied by their legal counsel in Romania, which indicated that applicants were innocent but that female applicant would likely be sentenced to prison were she to return — Member made several errors in decision — Member had been under impression that applicants had been convicted of crime in Romania, when in fact they had not — Member failed to consider and weigh all evidence, including consideration of lack of evidence with respect to Romanian charges — Member failed to heed direction of court to consider conditions under which female applicant would have found herself were she imprisoned in Romania — Matter was returned to Board for reconsideration by different member. Cases considered by Roger T. Hughes J.: Arevalo Pineda v. Canada (Minister of Citizenship & Immigration) (2010), 367 F.T.R. 211 (Eng.), 2010 CarswellNat 1182, 2010 FC 454, 2010 CarswellNat 3276, 2010 CF 454, [2010] F.C.J. No. 538 (F.C.) — considered Botezatu v. Canada (MCI) Roger T. Hughes J. 35

Botezatu v. Canada (Minister of Citizenship & Immigration) (2008), 2008 Car- swellNat 348, 2008 FC 191, 2008 CF 191, 2008 CarswellNat 1202 (F.C.) — considered Treaties considered: Convention Relating to the Status of Refugees, 1951, C.T.S. 1969/6; 189 U.N.T.S. 150 Article 1F(b) — considered

APPLICATION for judicial review of decision of member of Immigration and Refugee Board concluding that applicants were excluded from refugee protection because applicants had committed serious non-political crimes in their country of origin.

Timothy Wichert, for Applicants Jamie Todd, for Respondent

Roger T. Hughes J.:

1 This is an application for judicial review of a decision of a Member of the Immigration and Refugee Board dated December 2, 2010, wherein it was determined that the Applicants would be excluded from refugee protection because the Board determined that there were serious reasons to consider that the Applicants have committed serious non-political crimes in their country of origin, Romania. For the reasons that follow, I will allow this application and return the matter for reconsideration by a different Member. 2 The Applicants are husband and wife; both citizens of Romania. The wife came to Canada in 2002 and made a claim for refugee protection in May 2003. Her husband came to Canada in June 2008 and made a claim for refugee protection within a few days. Their claim was first heard by a Member of the Board. The Board rejected the Applicants’ claim. The Federal Court, Phelan J., sent the matter back for a re-hearing by a different Member. The substance of his reasons ([Botezatu v. Canada (Minister of Citizenship & Immigration)] 2008 FC 191 (F.C.)) are set out in paragraphs 8 and 9 as follows: 8 I am more troubled by the RPD’s consideration of Romanian prison conditions and its assessment that the Applicant would not be subject to torture. As the trier of fact, the RPD is entitled to significant deference. In this case, the DOS Reports show that prison conditions fail to meet international standards. The fact that Romania was 36 IMMIGRATION LAW REPORTER 2 Imm. L.R. (4th)

entering the European Union, subject to certain conditions of reform, might be relevant but was not considered as such. The RPD’s conclusions about the physical and operating conditions of prisons might not, in and of itself, be patent unreasonableness (although it does not stand up to a probing examination) but linked as it was to the possibility of torture in prison, the conclusion is patently unreasonable. 9 As to whether the Applicant was subject to a serious possibility of risk, the RPD failed to adequately consider that the Applicant’s co- accused in the scandal suffered torture and to explain why treatment of a person in a like situation is not a strong indicator of the risk the Applicant would face. 3 The matter was re-heard by a different Member who took into consideration not only the record of the previous hearing, but new materials submitted and new examinations of the Applicants before the Member. The Member concluded in her reasons: [62] Accordingly, the panel finds that the government has met its burden44 of showing that both the female claimant and the male claimant fall within the purview of Article 1F(b). I find that they are both excluded from the Convention refugee definition and are not Convention refugees or persons in need of protection. Final Disposition [63] After considering all the evidence, I find there are serious reasons to consider that Elena Marylene Botezatu and Valeriu Botezatu have committed a serious non-political crime in Romania. Therefore, they are excluded from refugee protection. 4 The Applicants’ Counsel has raised several issues with respect to the reasons and decision of the Member. I believe that this application can be dealt with on the bases that follow. 5 It is common ground between the parties that the Applicants have never been convicted of any crime in Romania. It is also common ground that the first charges laid were annulled through the Romanian Court pro- cedures and that there is no current warrant for arrest against either Ap- plicant. Further, it is common ground that new charges were laid against the Applicants, which charges are currently being contested in the Romanian Courts. The Applicants allege that these charges are trumped up and are politically motivated. There are two letters in the tribunal record from the Applicants’ Romanian lawyer providing some history as to Botezatu v. Canada (MCI) Roger T. Hughes J. 37

the charges. The lawyer’s letter of May 11, 2009 begins and ends as follows: 1. As counsel of defense, in agreement with my previous letters, I shall briefly present the evolution and significant aspects of the criminal trial filed by the Romanian authorities against Mrs. Botezatu Elena Marylene (BEM). The trial is formed of two separate parts carried out simultaneously, the preventive arrest warrant (PAW) and the proper charge. I will show you how and why, under an apparent legality, a. PAW was issued and maintained in a completely illegal manner since 25/07/02 up to present [11, 12, 13], b. the prosecution is a frame-up, [14- 25], c. BEM was discriminated, [26], d. the trial was not and shall not be fair [2-27]. I will analyze and argue on the basis of the documents in the case trial and the legal provisions...... If we look back at everything that happened to BEM we see an example of “applied justice” with all the aforementioned ingredients. Although she is innocent, if she returns to the country she may be (very probably) preventively arrested up to 180 days, during the trial and then held in prison for years at the end of the trial, when there are high chances that she be convicted, as a natural continuation of everything that happened to her up to the present, continuously, for 7 years. 6 Respondent’s Counsel at the hearing attempted to dismiss these letters, including the above, on the basis that they were simply those of a lawyer advocating on behalf of a client. Two points must be made in this regard. First, the Respondent can point to nothing in the tribunal record, except the charges themselves, to the contrary. Second, and most telling, Romania has not requested that either Applicant be extradited to Romania; nor does the Romanian government appear to be pursuing the current charges with any vigour. 7 The last portion of the letter above-quoted must be particularly noted. It says that the female Applicant would most probably be arrested were she to return to Romania. There is no evidence to the contrary. Justice Phelan’s reasons raising concern about the Romanian prison conditions must be remembered. He directed that the Refugee Protection Division consider this matter. 38 IMMIGRATION LAW REPORTER 2 Imm. L.R. (4th)

8 Against this background, the Member’s reasoning will be examined. 9 The Member’s reasons indicate that she was under the mistaken belief that the Applicants had been convicted in Romania. This mistake is recited in at least two paragraphs of her reasons. A third paragraph of her reasons suggests that she was in some way confused as to the matter. Respondent’s Counsel referred to these errors as “infelicitous wording”. I repeat paragraphs 36 and 59 of the Member’s reasons where she states that the female Applicant has been convicted of a crime in Romania, and paragraph 45, which suggests that she had only been charged with a crime in Romania. [36] Regarding the standard of proof, the Court has found that “serious reasons for considering”, which is a standard of proof that applies to questions of fact, rather than law,19 is a lesser standard than that of a balance of probabilities.20 To meet this standard, there need not be evidence that the claimant has been charged, convicted,21 or criminally prosecuted.22 In the circumstances of this case, the claimant has been charged and convicted in absentia. Respecting particularly Article 1F(b), the claimant has been charged and convicted in absentia. Respecting particularly Article 1F(b), the UNHCR Hand- book,23 which has been considered by the Supreme Court of Canada to be a persuasive authority,24 provides that Article 1F(b) is intended: ...to protect the community of a receiving country from the danger of admitting a refugee who has committed a serious common crime. It also seeks to render due justice to a refugee who has committed a common crime (or crimes) of a less serious nature or has committed a political offence...... [59] The female claimant has been in Canada since 2002. The onus is on the Minister to show why the claimant should be excluded from refugee protection. And, the onus is on the claimant to demonstrate that she was framed for the oil scam and was not treated fairly by the court system. The male claimant was asked what efforts they had made to overturn the allegedly false convictions. The reforms outlined above were pointed out by the Tribunal Officer. The documentary evidence referred to above does not indicate that there are any timelines within which complaints about the judicial process must be made. I find that the claimants have not satisfied the onus on them, to show that they have made whatever efforts are possible, to prove that the court proceedings, thus far, have been unfair, and that Romania has failed to follow due process. Botezatu v. Canada (MCI) Roger T. Hughes J. 39

..... [45] The “serious non-political crime” in question has been outlined above. I agree with Minister’s Counsel’s submission that the female claimant wilfully participated in a crime. There is no indication that the charges against the female claimant have been lifted.30 There is no outstanding arrest warrant against the female claimant. She further agreed that the amount in question (at today’s rates) converts to more than $2,000,000 Canadian. The fact that the female claimant says the charges against her were manufactured and that she would not be given a fair trial does not change the fact that she was and is still charged with a crime in Romania. 10 Counsel agree that, in considering exclusion under Article 1F(b) of the Convention, it is not necessary that there be a conviction in respect of the alleged crimes. It is agreed that a range of considerations may come into play and that the standard to be applied is that of more than a suspicion, but less than the balance of probabilities. However, the matter must also be considered against the background of the legal system as it exists in the country in which the crimes are alleged to have occurred. Justice Gauthier of this Court recently reviewed this matter in Arevalo Pineda v. Canada (Minister of Citizenship & Immigration), 2010 FC 454 (F.C.) at paragraphs 27 to 33: 27 As mentioned, parties to the Convention chose a fairly low evidentiary threshold to determine if a refugee claimant has committed a serious non-political crime before seeking protection in the country of refuge. Parliament has also given the RPD a lot of freedom to receive any evidence it considers credible and trustworthy [subsec- tions 170(g) and (h) of the Act]. That said, the need for “serious grounds” is protection against arbitrary and capricious action especially in light of the dire consequences resulting from an exclusion pursuant to Article 1F(b) of the Convention. For this standard to be meaningful, it requires a proper and objective assessment of the context as well as all the evidence presented by the refugee claimant. Obviously, the RPD must be particularly cautious when charges led have been dismissed by a competent court in accordance with the rule of law. 28 In Legault v. Canada (Secretary of State) (1997), 42 Imm. L.R. (2d) 192, 219 N.R. 376 (FCA) and Xie v. Canada (Minister of Citi- zenship and Immigration), 2004 FCA 250, [2005] 1 F.C.R. 304, the Federal Court of Appeal made it clear that the RPD can, in a proper context, rely upon an indictment and an arrest warrant to conclude 40 IMMIGRATION LAW REPORTER 2 Imm. L.R. (4th)

that there are reasonable grounds to conclude that a claimant has committed serious crime outside of Canada. 29 This is based on the premise that in a system where the rule of law prevails, the RPD can reasonably infer that there were reasonable and probable grounds for the police or the judicial investigative system to issue a warrant or lay a charge. 30 Naturally, for such premise to apply, the RPD must first be satisfied that the issuing authority does respect the rule of law, that is, for example, that it is not dealing with a country known for the filing of false charges as a means of harassment or intimidation. 31 But, by the same token, it also means that the value of the charges laid in a country like the United States is greatly diminished when such charges are dismissed. In fact, I would think that in such a case, the dismissal of the charges is prima facie evidence that those crimes were not committed by the refugee claimant and that the Minister cannot simply rely on the laying of charges to meet his burden of proof. The Minister must either bring credible and trustworthy evidence of the commission of the crime per se or show that in the particular circumstances of the case, the dismissal should not be conclu- sive because it does not affect the basic foundation on which the charges were laid. Again, for example, this could be achieved by establishing that crucial evidence on the basis of which the charges were laid was excluded for a reason that does not bind the RPD and does not totally destroy its probative value. 32 In the present case, it is evident that the main evidence (if not the only one) available to those who laid the charges and on which their reasonable beliefs were based, was the statement of the alleged victim. There is no evidence that there was anything else in the investigative file. The policeman who interviewed the complainant specifically noted that there were no visible marks or injuries and that there was no “rape kit”. No examinations or tests were made. Thus, the recanting of the complainant’s story destroyed the very foundation of the beliefs on which the charges were originally laid. 33 This means that the RPD had to be particularly careful in the way it treated the charges and it had to deal thoroughly with the retrac- tion. It is exactly in that respect that I consider the decision under review to be lacking. 11 In the present case, the Member made at least three errors in considering Article 1F(b). The first, as already discussed, was her apparent confu- sion or belief that there had been a conviction in Romania. While it is Botezatu v. Canada (MCI) Roger T. Hughes J. 41

agreed that a conviction is not determinative, it is a strongly influential factor and may well have tipped the scale in this case. 12 The second error was the Member’s refusal to consider that the Min- ister had not led any evidence to substantiate the new changes. She said at paragraph 46 of her reasons: Counsel further submitted that the Minister has not provided any new or additional evidence to substantiate the charges currently against the female claimant. In my opinion, this is not necessary, since the claimant has admitted that the charges against her in Romania are still outstanding. 13 I asked both Counsel if they could find anything in the tribunal record respecting an admission as to the charges. All that could be found is the following passage in a letter from Applicants’ Counsel to the Board dated June 2, 2010: If this information can be verified, it may have important implications for the case. While there is now apparently no current, outstanding warrant for her arrest, her charges still remain outstanding. And it is unclear at this time what the actual implications of the an- nulment will be. In particular, it is possible that the Romanian authorities will initiate a new warrant, or appeal the decision to have it re-instated as done previously. A previous warrant which had been annulled by the Brasov Law Court (see Exhibit R-3 (Court Record), Vol. 8, pages 1596-1598, Vol. 11, pages 2017-2043) was subsequently re-instated by the Brasov Court of Appeal (see Ex. R-3, Vol. 11 and 12, pages 2192-2211, esp. page 2210 bottom). 14 While this is an admission that certain charges are outstanding, it in no way relieves the Member from considering and weighing all the evidence, including a consideration as to lack of evidence as to the nature and validity of such charges. There is considerable evidence from the Applicants’ Romanian lawyer and others, including a statement from one Mihai Florin, who appears to be implicated in the matters in issue, in which he recants earlier statements he made and absolves the Applicants of any complicity. All of this requires careful examination, which simply wasn’t done. 15 The third error is that the Member did not do that which Justice Phe- lan specifically asked to be done; namely, an examination of the conditions under which at least the female Applicant would find herself if she were to be imprisoned in Romania. The Member declined to do so, on 42 IMMIGRATION LAW REPORTER 2 Imm. L.R. (4th)

the basis that there was no outstanding warrant for arrest. She wrote at paragraph 54 of her reasons: [54] It appears the main reason this case was returned for another hearing was that there was insufficient examination of Romanian prison conditions and whether or not the female applicant would be subject to torture, if she were imprisoned. Mr. Justice Phelan39 found that the previous Board member made a patently unreasonable finding about the possibility of torture in prison. Since there is no longer an arrest warrant out against the claimant, I decline to analyse this issue. 16 In so doing, the Member entirely overlooked the evidence of the Ap- plicants’ lawyer, as previously quoted, that at least the female Applicant would most probably be arrested if she returned to Romania. There is no evidence to the contrary. 17 In the written material, and in oral argument, there was much said about the nature of the dealings in which the Applicants are said to be implicated and their degree of complicity, if at all. These are complex matters and may well have been distracting. While these matters need careful examination, it appears that the Member overlooked or failed to consider much of the evidence submitted by the Applicants. In view of the fact that this matter is to be returned for reconsideration, a fresh and thorough examination should be made as to these matters. 18 Accordingly, the application for judicial review will be allowed, and the matter is returned to the Board for re-determination by a different Member. No Counsel requested certification and I find no reason to do so, nor any special reasons to award costs.

Judgment FOR THE REASONS PROVIDED; THIS COURT’S JUDGMENT is that: 1. The application is allowed; 2. The matter is returned for re-determination by a different Member; 3. No certification is made; and 4. No Order as to costs. Application granted. Sivabalasuntharampillai v. Canada (MCI) 43

[Indexed as: Sivabalasuntharampillai v. Canada (Minister of Citizenship & Immigration)] Gnanamalar Sivabalasuntharampillai, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-2348-10 2011 FC 975 John A. O’Keefe J. Heard: February 10, 2011 Judgment: August 4, 2011 Immigration and citizenship –––– Refugee protection — Removal — Pre- Removal Risk Assessment (PRRA) –––– Requirement to give reasons and make reference to evidence — Alien, citizen of Sri Lanka, arrived in Canada and brought Convention refugee claim, which was dismissed — Alien brought application for Pre-Removal Risk Assessment (PRRA) and provided documentation relevant inter alia to risks due to conflict between Sri Lanka government forces and Liberation Tigers of Tamil Eelam (LTTE) — PRRA officer concluded that alien’s fears were “generalized in nature” and not sufficiently specific to alien and that end of conflict between Sri Lanka and LTTE in 2009 substantially changed foundation of alien’s risk claim — Alien brought application for judicial review — Application granted — Officer’s conclusions concerning present state of risk were not supported by any reference to evidence — Conclusions “may have had a basis,” but absent reference to underlying evidence, decision could not stand, and matter was properly remitted for redetermination by different officer. Cases considered by John A. O’Keefe J.: Hnatusko v. Canada (Minister of Citizenship & Immigration) (2010), 2010 Car- swellNat 21, 2010 FC 18, 2010 CarswellNat 620, 2010 CF 18, [2010] A.C.F. No. 21, [2010] F.C.J. No. 21 (F.C.) — referred to Khosa v. Canada (Minister of Citizenship & Immigration) (2009), 82 Admin. L.R. (4th) 1, 2009 SCC 12, 2009 CarswellNat 434, 2009 CarswellNat 435, 304 D.L.R. (4th) 1, 77 Imm. L.R. (3d) 1, 385 N.R. 206, (sub nom. Canada (Citizenship & Immigration) v. Khosa) [2009] 1 S.C.R. 339, [2009] S.C.J. No. 12 (S.C.C.) — referred to 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 44 IMMIGRATION LAW REPORTER 2 Imm. L.R. (4th)

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 Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 72(1) — pursuant to s. 97(1) — referred to Regulations considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Immigration and Refugee Protection Regulations, SOR/2002-227 s. 161 — referred to s. 167 — referred to

APPLICATION by alien for judicial review of decision of Pre-Removal Risk Assessment (PRRA) officer dismissing alien’s PRRA application.

Robert I. Blanshay, for Applicant David Cranton, for Respondent

John A. O’Keefe J.:

1 This is an application pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 (the Act) for judicial review of a decision of a pre-removal risk assessment officer (the officer), dated August 21, 2009, wherein the officer determined that the applicant would not be subject to risk of persecution, danger of torture, risk to life or risk of cruel and unusual treatment if returned to Sri Lanka. 2 The applicant requests that the decision of the Board be set aside and the claim remitted for redetermination by a different member of the Board.

Background 3 Gnanamalar Sivabalasuntharampillai (the applicant) is a 67 year old Tamil female national of Sri Lanka. The applicant has three children all residing in Canada. Sivabalasuntharampillai v. Canada (MCI) John A. O’Keefe J. 45

4 The applicant left Sri Lanka in December 1999 and stayed in the United Kingdom for one month before transiting through the United States to claim refugee protection in Canada in January 2000. 5 The applicant’s refugee claim was refused in May 2001. 6 The applicant filed a pre-removal risk assessment (PRAA) application in June 2008.

Officer’s Decision 7 The officer found that there was not a serious possibility that the applicant would face a personalized and objectively identifiable risk of harm if she were returned to Sri Lanka. 8 The officer found that the applicant had presented insufficient evidence to substantiate her claim. While the officer noted that the applicant’s PRRA materials were substantial, there was insufficient evidence of how the harms indicated in the materials were connected to the applicant. The applicant presented evidence of risk of harassment of war wid- ows and risk of “night violence” in rural areas, without any evidence that the applicant would reside in rural areas or was a war widow. 9 The applicant also presented evidence of general abuses by the Liber- ation Tigers of Tamil Eelam (LTTE), police arrests and human rights concerns in the armed conflict between the government forces and the LTTE. The officer found that these documents were largely discussing conditions prior to the government forces capturing the LTTE territories in May 2009. The officer found that the applicant’s evidence did not support a finding of a serious possibility of risk of harm or persecution if she were returned to Sri Lanka today. 10 The officer also found that the applicant’s concerns regarding extortion and kidnapping were speculative in nature. 11 Finally, the officer found that the applicant’s failure to claim refugee asylum in the United Kingdom or the United States did not support a finding that the applicant has a subjective fear or persecution or risk of harm on returning to Sri Lanka.

Issues 12 The applicant submitted the following issues for consideration: 46 IMMIGRATION LAW REPORTER 2 Imm. L.R. (4th)

1. The PRRA officer failed to disclose an adequate set of written reasons and failed to support all critical findings with a clear evidentiary basis. 2. The PRRA officer erred at law by questioning the applicant’s credibility and subjective fear of return to Sri Lanka but failed to convoke an in-person interview.

Applicant’s Written Submissions 13 The applicant submits that the officer did not provide an evidentiary basis in support of the PRRA findings. The applicant is concerned that the officer did not indicate what, if any, sources were consulted in the decision making. The applicant submits that the officer did not note the specific passages considered in the applicant’s materials. 14 The officer stated that the document RIR LKA102249 was not provided by the applicant. The applicant submits that this demonstrates that the officer did not consider this document in the decision, although it originated from the Immigration and Refugee Board.

Respondent’s Written Submissions 15 The respondent submits that it was clear that the officer had considered all of the evidence presented by the applicant and that the officer was not required to consult external sources. 16 The respondent submits that the officer did not need to consider the document RIR LKA102249 as it was dated December 2006 and concerned the LTTE’s treatment of persons which was no longer relevant to the officer following the May 2009 defeat of the LTTE by the government forces. In addition, the burden of proof lay with the applicant to provide the document to the officer if she wanted it to be considered in more detail. 17 The respondent submits that the officer considered whether there was evidence of any harassment or abuse that was sufficient to substantiate the applicant’s claim, but found that there was not. The applicant’s allegations of harm were speculative in nature and the officer therefore concluded that there was no serious possibility that she would face a personal identifiable risk of harm. Sivabalasuntharampillai v. Canada (MCI) John A. O’Keefe J. 47

Analysis and Decision Standard of Review 18 Where previous jurisprudence has determined the standard of review applicable to a particular issue, the reviewing court may adopt that standard (New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9, [2008] 1 S.C.R. 190 (S.C.C.) at paragraph 57). 19 This Court has confirmed that the standard of review which applies to the findings of an officer deciding a PRRA application is that of reasonableness (see Hnatusko v. Canada (Minister of Citizenship & Immigra- tion), 2010 FC 18 (F.C.), at paragraphs 25 and 26). However, any issues of procedural fairness, including the right to be heard and a lack of adequate reasons, will be reviewed on the correctness standard (see Khosa v. Canada (Minister of Citizenship & Immigration), 2009 SCC 12, [2009] 1 S.C.R. 339 (S.C.C.) at paragraph 43).

Issue The PRRA officer failed to disclose an adequate set of written reasons and failed to support all critical findings with a clear evidentiary basis. 20 The officer concluded that the applicant’s fears were generalized in nature. The officer concluded that since the war between the LTTE and the government ended in May 2009, the applicant’s fears no longer existed in August 2009, the date of the decision. Conditions were different for the applicant than outlined in her documentation which was from 2006 and 2007. 21 I have difficulty with this conclusion as the officer did not, in the decision, refer to any evidence to support the conclusion. The only evidence in the record shows that the applicant’s fears were most likely objectively grounded based on the evidence from 2006 and 2007. 22 The officer’s conclusion about conditions in August 2009 may have a basis but this I cannot determine as the officer’s reasons do not tell me on what evidence the officer’s conclusion was based. 23 As a result, I am of the view that the officer’s reasons, in this respect, are inadequate in that the evidentiary basis for the conclusion is not stated. 24 Because of my finding on this issue, I need not deal with the remaining issue. 48 IMMIGRATION LAW REPORTER 2 Imm. L.R. (4th)

25 The application for judicial review is therefore allowed, the decision of the officer is set aside and the matter is referred to a different officer for redetermination. 26 Neither party wished to submit a proposed serious question of general importance for my consideration for certification.

Judgment 27 IT IS ORDERED that the application for judicial review is allowed, the decision of the officer is set aside and the matter is referred to a different officer for redetermination. Application granted.

Appendix Relevant Statutory Provisions Immigration and Refugee Protection Act, SC 2001, c 27 72. (1) Judicial review by the Federal Court with respect to any matter — a decision, determination or order made, a measure taken or a question raised — under this Act is commenced by making an application for leave to the Court. 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. Sivabalasuntharampillai v. Canada (MCI) John A. O’Keefe J. 49

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; Immigration and Refugee Protection Regulations, SOR/2002-227 161.(1) A person applying for protection may make written submissions in support of their application and for that purpose may be assisted, at their own expense, by a barrister or solicitor or other counsel. (2) A person who makes written submissions must identify the evidence presented that meets the requirements of paragraph 113(a) of the Act and indicate how that evidence relates to them. 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; (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. 50 IMMIGRATION LAW REPORTER 2 Imm. L.R. (4th)

[Indexed as: Ortiz Reyes v. Canada (Minister of Citizenship & Immigration)] Alejandrina Juana Ortiz Reyes, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-7512-10 2011 FC 903 Roger T. Hughes J. Heard: July 19, 2011 Judgment: July 19, 2011 Immigration and citizenship –––– Refugee protection — Removal — Pre- Removal Risk Assessment (PRRA) –––– Applicant, citizen of Mexico, made unsuccessful claim for refugee status in Canada — Applicant applied for Pre- Removal Risk Assessment (PRRA) — PRRA Officer dismissed application in decision dated November 10, 2010, but decision was not released — Applicant had been asked to file any further materials in support of application — On No- vember 24, 2010, applicant’s representative filed further material — On Novem- ber 25, 2010, officer reviewed further material and placed handwritten notation on cover stating “Reviewed decision rendered 10-11-2010 (Signature) 25-11- 2010” — On same page, there was “sticky note” in different handwriting which stated “Submissions Reviewed by officer as per Note below. Decision stands, PA to file 25/11/10” — Applicant applied for judicial review — Application granted — Officer’s notation was silent as to whether further submissions altered her November 10, 2010 decision — Third party’s notation on sticky note addressed that matter and it was unexplained as to whose note it was — At best, officer’s practice was sloppy — If decision written November 10, 2010 was unaltered, it should have been redated before it was sent to applicant — If, on other hand, unknown author of sticky note and not officer made determination that November 10, 2010 decision was to stand, then decision was not that of officer.

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

Wennie Lee, for Applicant Veronica Cham, for Respondent Ortiz Reyes v. Canada (MCI) Roger T. Hughes J. 51

Roger T. Hughes J.:

1 This is an application for judicial review of a decision of a Pre-Re- moval Risk Assessment (PRRA) Officer dated November 10, 2010 and communicated to the Applicant on December 9, 2010. 2 The Applicant is an adult female citizen of Mexico. She claimed refugee status in Canada. That claim was rejected in a decision of the Immi- gration and Refugee Board dated September 18, 2009. The Applicant sought a pre-removal risk assessment essentially basis on her fear of returning to Mexico based on her assertion that she would be perceived as a returning wealthy person and would be targeted by organized criminals. 3 The PRRA Officer considered the application and, in a decision dated November 10, 2010, rejected it. That decision was not, however, released at that time. The Applicant had been asked to file any further materials in support of the application. On November 24, 2010 the Applicant’s representative filed further materials. The record now produced including the affidavit of the PRRA Officer shows that on November 25, 2010 the PRRA Officer reviewed this further material and placed a handwritten notation on the cover to the effect that the material had been reviewed. That note says: Reviewed decision rendered 10-11-2010 (Signature) 25-11-2010. 4 On the cover page which bears this note is a copy of a “sticky note” in different handwriting which says: Submissions Reviewed by officer as per Note below. Decision stands, PA to file 25/11/10. There is no evidence as to who wrote this note or for what purpose. 5 The decision of November 10 includes the following: I have read and carefully considered the application and all the submissions presented ... (emphasis added) ... After having carefully assessed all of the evidence including documentary evidence on country conditions (emphasis added) ... 6 These statements may have been true as of November 10, 2010, however the material filed November 24, 2010 contained a great deal of further material directed to country conditions in Mexico. 52 IMMIGRATION LAW REPORTER 2 Imm. L.R. (4th)

7 The Officer provided an affidavit in this matter sworn May 26, 2011, which is after the Application for leave had been granted. She swore: a. On November 25th, 2010 I reviewed and considered the further submissions I determined that the further submissions did not alter my original decision and made a notation on the cover page of the further submissions along with my signature. 8 The notation she made is silent as to whether the further submissions altered her decision of November 10, 2010. A third party’s notation on a sticky note addresses this matter. It is unexplained as to whose note this was. 9 At best the Officer’s practice was sloppy. If indeed the decision written November 10, 2010 was unaltered, it should have been redated before it was sent to the applicant. The applicant did not receive the decision until December 9, 2010. Therefore, the decision could have been redated before it was sent out. 10 If, on the other had, the unknown author of the sticky note and not the Officer made a determination that the November 10, 2010 was to stand, then the decision was not that of the Officer. 11 Accordingly, the application is allowed. It is best that the matter be returned for redetermination by a different Officer. There is no question for certification, nor any special reason to grant costs.

Judgment FOR THE REASONS PROVIDED THIS COURT ORDERS AND ADJUDGES that: 1. The application is allowed; 2. The matter is returned for a new determination by a different Officer; 3. There is no question to be certified; 4. No order as to costs. Application granted. Hadwani v. Canada (MCI) 53

[Indexed as: Hadwani v. Canada (Minister of Citizenship & Immigration)] Saleem Isbad Hadwani, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-7124-10 2011 FC 888 Roger T. Hughes J. Heard: July 14, 2011 Judgment: July 14, 2011 Immigration and citizenship –––– Admission — Immigrants — Skilled workers — Categories (point system) — Miscellaneous factors –––– Appli- cant was physician residing in Pakistan — Applicant’s application for permanent residence in Canada as skilled worker was refused — Applicant received 63 points — Applicant required 67 points in order to be successful — Officer awarded zero points in category termed “adaptability” — Reason for doing so was that officer was not satisfied that applicant had filed government-issued birth certificate in support of otherwise satisfactory proof that applicant had nephew residing in Canada — What applicant had filed was document provided by medical record department of hospital providing particulars of birth of nephew at that hospital — Applicant brought application for judicial review — Application granted — In regard to what applicant was required to submit, applicant was furnished by Canadian High Commission with document entitled “Document Check List” — Check list did not state that government-issued birth certificate had to be submitted in case of relative in Canada — It said documents “such as” birth certificate had to be submitted — Officer was clearly wrong in dismissing out-of-hand hospital record as to nephew’s birth — It was incredulous that application of physician should be dismissed on basis of failure to file government-issued birth certificate of his nephew when he did file acceptable alternative — Applicant was turned down for being only four points short of achieving necessary 67 points — Failure of officer to exercise degree of flexibility and failure of respondent to settle this matter well before hearing constituted special reasons for award of costs, fixed at $500.

APPLICATION for judicial review of decision refusing applicant’s application for permanent residence in Canada as skilled worker.

Krassina Kostadinov, for Applicant 54 IMMIGRATION LAW REPORTER 2 Imm. L.R. (4th)

Rafeena Rashid, for Respondent

Roger T. Hughes J.:

1 This is an application for judicial review of a decision of a Desig- nated Immigration Officer dated October 5, 2010 in which the Officer refused the Applicant’s application for permanent residence in Canada as a skilled worker. For the reasons that follow this application is allowed with costs. 2 The Applicant is a physician residing in Karachi, Pakistan. He seeks to come to Canada as a permanent resident. He made an application to do so using an immigration consulting firm. The application was processed by the Canadian High Commission of Islamabad, Pakistan which required and was provided with a number of documents and information in support of his application. An assessment was made based on a points scheme. The Applicant received 63 points. He required 67 points in order to be successful. The essential issue turns on the award by the Officer of zero (0) points in a category termed as “adaptability”. The reason for doing so was that the Officer was not satisfied that the Applicant had filed a government issued birth certificate in support of the otherwise satisfactory proof that the Applicant had a nephew residing in Canada. What the Applicant had filed was a document provided by the Medical Record Department of Karachi Aventist Hospital providing particulars of the birth of the nephew at that hospital. The Officer was not satisfied with this document. The Officer apparently required a government issued birth certificate but didn’t tell the Applicant or his representatives. 3 The CAIPS notes entered by the Officer indicates the following: FN claim to have a niece in Canada. Copy of PR card is on file. Copy of marriage cert of niece mother shows same parentage as appear on FN’s edu docs. But birth cert for niece is not acceptable as it is issued by a hospital and not by relevant govt authorities. No pts for relatives in Canada are awarded. FN does not obtain any points for adaptability factors. FN does not meet minimum 67 pass marks criteria under IRPA. File to PR for review. 4 The reference to a niece instead of a nephew reflects a degree of care- lessness or inattention to this file by the Officer. 5 The Officer did not advise the Applicant or his legal representatives as to any concern respecting the provision of a document other than government issued birth certificate. When the Officer’s decision was com- Hadwani v. Canada (MCI) Roger T. Hughes J. 55

municated to the Applicant’s representatives the representatives attempted to provide further information. They were advised that it was too late to do so. 6 The Applicant raises three issues on this application: a. Did the Officer deny the Applicant procedural fairness by failing to provide the Applicant with an opportunity to disabuse the Officer’s concerns with respect to documentation providing the relationship to his nephew residing in Canada? b. Was the Officer’s fining unreasonable in awarding the Appli- cant no points for adaptability, despite evidence indicating the existence of a Canadian relative? c. Did the Officer err in failing to exercise his discretion to ap- prove the Applicant’s skilled worker application, give the unique circumstances of this case? 7 The Respondent’s position is that an applicant bears the burden of filing a proper and complete application and that an Officer is under no duty to inform an applicant as to defects or enter into a dialogue as to the adequacy of materials submitted. 8 The issues should be approached from the point of view as to what the Applicant was required to submit. In this regard the Applicant was furnished by the Canadian High Commission with a document entitled “Document Check List”. It set out a number of documents required for an application of this kind, including: Proof of your relationship to your relative in Canada, if applicable, (i.e.; education documents, parent’s Bay Form, birth certificates or Nikah Nama), and his/her status in Canada with the notarized copy of record of landing, Canadian passport of citizenship card. Documents must conclusively prove how you are related. Affidavits are not acceptable. Also provide the complete address of your relative in Canada. 9 It is to be noted that the mention, in brackets, of birth certificates is preceded by the notation ie. which is to say “such as”, meaning a degree of flexibility is permissible. Where it is to be made clear that certain documents are not acceptable, that is set out, for instance in the above section. “Affidavits are not acceptable”. The Check List elsewhere also makes it clear what documents are and are not acceptable, for instance: • Updated proof of funds with supporting verifiable documents showing the history of your funds. Information on required 56 IMMIGRATION LAW REPORTER 2 Imm. L.R. (4th)

settlement funds can be found at: http://www.cic.gc.ca/english/immigrate/skilled/funds.asp • Photocopies of the first 4 pages of passports for yourself and all your dependants, whether accompanying or not. • Original employment certificates and official detailed job description for your declared NOC codes that meet the Minis- terial Instructions. Please do not submit self-written job descriptions, we will only consider your submission if it has been issued and certified by your employer. 10 The Check List does not state that a government issued birth certificate must be submitted in the case of a relative in Canada. It says documents “such as” a birth certificate must be submitted. The Officer was clearly wrong in dismissing out of hand the hospital record as to the nephew’s birth. 11 It is incredulous that the application of a physician should be dismissed on the basis of failure to file a government issued birth certificate of his nephew (not “niece”) when he did file an acceptable alternative. He was turned down for being only four points short of achieving the necessary sixty-seven points. The failure of the officer to exercise a degree of flexibility and the failure of the Respondent to settle this matter well before the hearing constitute special reasons for an award of costs which I fix at $500.00. 12 This application is allowed with costs fixed at $500.00. The Officer’s decision is set aside. The matter is returned for re-determination by a different Officer bearing in mind these reasons.

Judgment FOR THE REASONS PROVIDED: THE COURT’S JUDGMENT IS: 1. The application is allowed; 2. The decision of the Designated Immigration Officer dated October 5, 2010 is set aside; 3. This matter is returned for re-determination by a different Officer bearing in mind the Reasons herein; 4. The Applicant is entitled to costs fixed in the sum of $500.00. Application granted. Mihura Torres v. Canada (MCI) 57

[Indexed as: Mihura Torres v. Canada (Minister of Citizenship & Immigration)] Virginia Mihura Torres, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-4434-10 2011 FC 818 Michel M.J. Shore J. Heard: June 30, 2011 Judgment: July 5, 2011 Immigration and citizenship –––– Admission — Application for temporary resident or immigrant visa — Documentation and corroborative evidence –––– Applicant was citizen of Venezuela with Master’s degree in business administration — Applicant applied to Canadian Embassy in Caracas for permanent residence under Federal Skilled Worker Class — Applicant was asked to provide documentary evidence of past and present work experience and employment letter detailing current position — Applicant provided all required documentation to Embassy; application was denied because documentation did not indicate that applicant had satisfied work requirements — Applicant applied for judicial review of decision — Application granted — Serious reasons existed to believe that immigration officer erred in law or that decision was based on erroneous findings of fact — Applicant appeared to have provided more than enough credible evidence in support of her application — Matter was remitted for redetermination by different immigration officer. Immigration and citizenship –––– Admission — Appeals and judicial review — Judicial review — Miscellaneous issues –––– Applicant was citizen of Venezuela with Master’s degree in business administration — Applicant applied to Canadian Embassy in Caracas for permanent residence under Federal Skilled Worker Class — Applicant was asked to provide documentary evidence of past and present work experience and employment letter detailing current position — Applicant provided all required documentation to Embassy; application was denied because documentation did not indicate that applicant had satisfied work requirements — Applicant applied for judicial review of decision — Application granted — Serious reasons existed to believe that immigration officer erred in law or that decision was based on erroneous findings of fact — Applicant appeared to have provided more than enough credible evidence in support of her 58 IMMIGRATION LAW REPORTER 2 Imm. L.R. (4th) application — Matter was remitted for redetermination by different immigration officer. Cases considered by Michel M.J. Shore J.: Baybazarov v. Canada (Minister of Citizenship & Immigration) (2010), 2010 FC 665, 2010 CF 665, 2010 CarswellNat 2427, 2010 CarswellNat 2428 (F.C.) — referred to Bekker v. R. (2004), 2004 FCA 186, 2004 CarswellNat 1303, 323 N.R. 195, [2004] 3 C.T.C. 183, 2004 D.T.C. 6404, 2004 CAF 186, 2004 CarswellNat 3333, [2004] F.C.J. No. 819, [2004] A.C.F. No. 819 (F.C.A.) — referred to Chen v. Canada (Minister of Citizenship & Immigration) (1999), 171 F.T.R. 265, 1999 CarswellNat 1360, [1999] F.C.J. No. 1123 (Fed. T.D.) — considered Chen v. Canada (Minister of Citizenship & Immigration) (2007), 2007 Car- swellNat 108, 2007 FC 41, 307 F.T.R. 314 (Eng.), 2007 CarswellNat 5820, 2007 CF 41, [2007] F.C.J. No. 65 (F.C.) — considered Chiarelli v. Canada (Minister of Employment & Immigration) (1992), 2 Admin. L.R. (2d) 125, 16 Imm. L.R. (2d) 1, 135 N.R. 161, 72 C.C.C. (3d) 214, 8 C.R.R. (2d) 234, [1992] 1 S.C.R. 711, 90 D.L.R. (4th) 289, 1992 Car- swellNat 18, 1992 CarswellNat 653, EYB 1992-67215, [1992] S.C.J. No. 27 (S.C.C.) — referred to Hanif c. Canada (Ministre de la Citoyennet´e & de l’Immigration) (2009), 2009 CarswellNat 706, 2009 FC 68, 2009 CarswellNat 152, 2009 CF 68 (F.C.) — referred to Hassani v. Canada (Minister of Citizenship & Immigration) (2006), 2006 CF 1283, 2006 CarswellNat 5123, [2007] 3 F.C.R. 501, 2006 CarswellNat 3387, 2006 FC 1283, 302 F.T.R. 39 (Eng.), [2006] F.C.J. No. 1597 (F.C.) — referred to Kaur v. Canada (Minister of Citizenship & Immigration) (2008), 2008 Car- swellNat 5262, 2008 CarswellNat 3789, 2008 FC 1189, 75 Imm. L.R. (3d) 260, 2008 CF 1189, [2008] F.C.J. No. 1468 (F.C.) — considered Khan v. Canada (Minister of Citizenship & Immigration) (2008), 2008 FC 121, 2008 CarswellNat 201, 2008 CF 121, 2008 CarswellNat 1429 (F.C.) — referred to Nabin v. Canada (Minister of Citizenship & Immigration) (2008), 2008 Car- swellNat 359, 2008 FC 200, 2008 CarswellNat 1214, 2008 CF 200, [2008] F.C.J. No. 250 (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, Mihura Torres v. Canada (MCI) Michel M.J. Shore J. 59

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 Oladipo v. Canada (Minister of Citizenship & Immigration) (2008), 2008 FC 366, 2008 CarswellNat 819, 2008 CarswellNat 1483, 2008 CF 366 (F.C.) — considered Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Generally — referred to s. 11(1) — considered s. 75(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. 75 — considered s. 76(1) — considered

APPLICATION for judicial review of decision of Citizenship and Immigration Canada denying applicant’s application for permanent residence under Federal Skilled Worker Class.

Genevi`eve H´enault, for Applicant Gretchen Timmins, for Respondent

Michel M.J. Shore J.: I. Introduction 1 Immigration is a privilege, not a right (Chiarelli v. Canada (Minister of Employment & Immigration), [1992] 1 S.C.R. 711 (S.C.C.)). Appli- cants for permanent residence bear the burden of demonstrating that they are entitled to a visa. Applicants also bear the responsibility of producing the information and documents that are required in support of their application. (Baybazarov v. Canada (Minister of Citizenship & Immigration), 2010 FC 665 (F.C.) at paras 11-12). 2 The Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA] and the Immigration and Refugee Protection Regulations, SOR/2002-227 [IRPR], clearly set out the requirements that an applicant must meet in order to be permitted to immigrate to Canada in the Federal Skilled Worker Class. An applicant must demonstrate that he or she has the re- 60 IMMIGRATION LAW REPORTER 2 Imm. L.R. (4th)

quired work experience in the occupation which he or she intends to pursue in Canada. 3 In the present case, a letter, dated March 19, 2010, was sent to the Applicant and, in conformity with the statutory regime, asked that the Applicant provide employment letters and a job description from her employer (Tribunal Record (TR) at p 16). In response to that letter, the Ap- plicant submitted documents and provided the required information in relation to her work history and experience. The question is whether the information is such that it can be deemed adequate to respond to the pre- occupation in respect of the statutory regime.

II. Judicial Procedure 4 This is an application for judicial review of a decision of an Immigra- tion Officer of the Citizenship and Immigration Canada [CIC] Case Processing Pilot - Ottawa [CPP-O], rendered on July 21, 2010. The decision specifies that the Applicant’s application for permanent residence under the Federal Skilled Worker Class has been denied pursuant to paragraph 11(1) of the IRPA, due to the Applicant having provided only one letter of reference from previous employers which does not include details about her duties.

III. Background 5 The Applicant, Ms. Virginia Mihura Torres, is a 33-year-old citizen of Venezuela who has knowledge of English and holds a Master’s De- gree in Business Administration and a Bachelor’s Degree in Administra- tive Sciences. The Applicant allegedly accumulated more than five years of continuous full-time employment experience, in Caracas, Venezuela, as a Financial Planning & Profitability Manager for Sodexho, a multina- tional food services and facilities company. 6 On March 23, 2007, the Applicant applied to the Canadian Embassy in Caracas for permanent residence under the Federal Skilled Worker Class and received an acknowledgment of receipt of such on April 4, 2007. The letter from the Embassy stated that “[n]o processing will occur on your file for approximately 36 months” (Applicant’s Record (AR) at p 20). The letter also specified that the Applicant would be required to provide “[o]riginal Job reference letters/confirmation of employment letters” and a “[d]etailed description of [her] job responsibilities (past and present)” (AR at p 24). Mihura Torres v. Canada (MCI) Michel M.J. Shore J. 61

7 On September 30, 2008, the Canadian Embassy in Caracas invited the Applicant to submit forms and documents in support of her application, namely, “Job reference letters/confirmation of employment letters” and a “[d]etailed description of [her] job responsibilities (past and present)” (AR p 28). The letter specified that if the requested information was not provided, the Immigration Officer “may not be satisfied that [the Appli- cant] meet[s] the selection and admissibility requirements.” The letter also explained that documents, not in one of Canada’s official languages, must be accompanied by a certified translation by an accredited translator. 8 Between the months of September 2008 to June 2009, counsel for the Applicant sought an exemption for her “many Venezuela clients” from translating Spanish documents (AR, Memorandum of Facts and Law at para 5). On June 2, 2009, the Applicant’s counsel received an email from the Immigration Program Manager, informing her that the translation requirement would be waived for her clients, instructing her to proceed and submit documents within 120 days (AR at p 36). 9 On August 6, 2009, the Applicant alleges that she submitted forms and untranslated documents to the Canadian Embassy in Caracas in support of her application. 10 On March 19, 2010, the Canadian Embassy of Caracas sent a letter to the Applicant, again requesting forms and documents in support of her application, within a 120-day delay, to the CPP-O. 11 On July 15, 2010, the Applicant submitted the forms and documents in support of her application to the CPP-O. 12 The Officer reviewed the Applicant’s application at the CPP-O and decided that the Applicant did not meet the requirements for immigration to Canada under the Federal Skilled Worker Class. A letter was sent by email refusing the application on July 21, 2010.

IV. Decision under Review 13 The Immigration Officer concluded that since the employment letters submitted on behalf of the Applicant provided no details as to her actual duties in the workplace, he was not satisfied that she met the requirements of the Federal Skilled Worker Class. The Officer determined that Ms. Mihura Torres is not a skilled worker as he was not satisfied that she 62 IMMIGRATION LAW REPORTER 2 Imm. L.R. (4th)

had met the first, second and third parts of subsection 75(2) of the IRPA requirements: ... you only provide[d] one letter of reference form previous employers (from Sodexho), and the letter has no/no details about your duties. As a result I am not satisfied that you have performed the duties of a manager, financial planning, NOC 0111, as per the description in the NOC handbook. I am therefore not satisfied that you have the minimum one year full-time work experience in a level O, A or B occupation required to be eligible to apply as a Federal Skilled Worker. (Immigration Officer’s decision, AR at p 4).

V. Position of the Parties 14 The Applicant submits that she wants to escape the political and economic turmoil in Venezuela and begin a new life in Canada, reunited with her sister. The Applicant argues that the Immigration Officer erred in law, by violating the principles of procedural fairness in making his decision. 15 According to the Applicant, the Immigration Officer relied more heavily on the instructions provided in a letter issued by the Canadian Embassy in Caracas (the letter dated March 19, 2010) as opposed to the requirements of the IRPA and the IRPR. In that regard, the Officer, according to the Applicant, did not render an independent decision on her application based on its merits as a result of constraints stemming from rigid instructions as set out in the letter from the Canadian Embassy in Caracas. 16 The Applicant submits that she waited over three years for a decision on her application and that the Officer did not provide her with a single opportunity to disabuse him of his concerns regarding her occupational experience and ability to satisfy the National Occupational Classification [NOC] category of Manager, Financial Planning. The Applicant states that she did not at any time receive an email, fax or letter from the CPP- O Officer inviting her to respond to his concerns upon which he based his refusal. 17 The Applicant also submits that her application was not treated consistently with other similar applications and that she did not receive a fair and equal treatment. It is submitted by the Applicant that the Immigra- tion Officer’s treatment of the application resulted in multiple violations of the principles of procedural fairness which negatively impacted his Mihura Torres v. Canada (MCI) Michel M.J. Shore J. 63

assessment and, thus, prevented Canada from receiving a highly quali- fied immigrant, precisely the type of immigration Canada seeks to attract. 18 The Respondent submits that the Immigration Officer did not err and the Applicant has not demonstrated that the intervention of this Court is justified.

VI. Issues 19 The Applicant proposes three questions in issue: (1) Did the Officer breach the principles of procedural fairness by im- properly fettering his discretion in relying upon the instruction letter for transferring the Applicant’s application to the CPP-O to the exclusion of other relevant considerations? (2) Did CIC breach the principles of procedural fairness by failing to show diligence in processing the Applicant’s application for permanent residence under the Federal Skilled Worker Class? (3) Did the Officer breach the principles of procedural fairness by failing to treat the Applicant’s application in a manner consistent with that afforded other similar applications? 20 Whereas, the Respondent submits that the Court should examine the following two issues: (1) Was there a breach of procedural fairness in this case? (2) Was the Immigration Officer’s decision reasonable? 21 A preliminary issue is raised by the Respondent who submits that the Applicant refers to new evidence that was not before the Immigration Officer. 22 The Court will respond to the questions as a whole in the manner it sees fit so as to resolve the core issues by incorporating them in a comprehensive manner (recognizing that certain aspects were supplementary and superfluous to the core issues at the origin of the matter). 64 IMMIGRATION LAW REPORTER 2 Imm. L.R. (4th)

VII. Relevant Legislative Provisions 23 Pursuant to subsection 11(1) of the IRPA, immigration officers have a discretionary power to issue visas, provided that the foreign national is not inadmissible and meets the requirements of the IRPA. Requirements Before Entering Canada Application before entering Canada 11. (1) A foreign national must, before entering Canada, apply to an officer for a visa or for any other document required by the regulations. The visa or document may be issued if, following an examination, the officer is satisfied that the foreign national is not inadmissible and meets the requirements of this Act. Formalités préalables a` l’entrée Visa et documents 11. (1) L’étranger doit, préalablement a` son entrée au Canada, demander a` l’agent les visa et autres documents requis par règlement. L’agent peut les délivrer sur preuve, a` la suite d’un contrôle, que l’étranger n’est pas interdit de territoire et se conforme a` la présente loi. 24 Section 75 and subsection 76(1) of the IRPR are directly relevant to this case and provide: Federal Skilled Worker Class Class 75. (1) For the purposes of subsection 12(2) of the Act, the federal skilled worker class is hereby prescribed as a class of persons who are skilled workers and who may become permanent residents on the basis of their ability to become economically established in Canada and who intend to reside in a province other than the Province of Quebec. Skilled workers (2) A foreign national is a skilled worker if (a) within the 10 years preceding the date of their application for a permanent resident visa, they have at least one year of continuous full-time employment experience, as described in subsection 80(7), or the equivalent in continuous part-time employment in one or more occupations, other than a re- stricted occupation, that are listed in Skill Type 0 Manage- Mihura Torres v. Canada (MCI) Michel M.J. Shore J. 65

ment Occupations or Skill Level A or B of the National Oc- cupational Classification matrix; (b) during that period of employment they performed the actions described in the lead statement for the occupation as set out in the occupational descriptions of the National Occupational Classification; and (c) during that period of employment they performed a substantial number of the main duties of the occupation as set out in the occupational descriptions of the National Occupational Classification, including all of the essential duties. Minimal requirements (3) If the foreign national fails to meet the requirements of subsection (2), the application for a permanent resident visa shall be refused and no further assessment is required. Selection criteria 76. (1) For the purpose of determining whether a skilled worker, as a member of the federal skilled worker class, will be able to become economically established in Canada, they must be assessed on the basis of the following criteria: (a) the skilled worker must be awarded not less than the minimum number of required points referred to in subsection (2) on the basis of the following factors, namely, (i) education, in accordance with section 78, (ii) proficiency in the official languages of Canada, in accordance with section 79, (iii) experience, in accordance with section 80, (iv) age, in accordance with section 81, (v) arranged employment, in accordance with section 82, and (vi) adaptability, in accordance with section 83; and (b) the skilled worker must (i) have in the form of transferable and available funds, unencumbered by debts or other obligations, an amount equal to half the minimum necessary income applicable in respect of the group of persons consist- ing of the skilled worker and their family members, or 66 IMMIGRATION LAW REPORTER 2 Imm. L.R. (4th)

(ii) be awarded the number of points referred to in subsection 82(2) for arranged employment in Canada within the meaning of subsection 82(1). Travailleurs qualifiés (fédéral) Catégorie 75. (1) Pour l’application du paragraphe 12(2) de la Loi, la catégorie des travailleurs qualifiés (fédéral) est une catégorie réglementaire de 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. Qualité (2) Est un travailleur qualifié l’étranger qui satisfait aux exigences suivantes: a) il a accumulé au moins une année continue d’expérience de travail a` temps plein au sens du paragraphe 80(7), ou l’équivalent s’il travaille a` temps partiel de fa¸con continue, au cours des dix années qui ont précédé la date de présentation de la demande de visa de résident permanent, dans au moins une des professions appartenant aux genre de compétence 0 Gestion ou niveaux de compétences A ou B de la matrice de la Classification nationale des professions — exception faite des professions d’accès limité; b) pendant cette période d’emploi, il a accompli l’ensemble des tâches figurant dans l’énoncé principal etabli´ pour la profession dans les descriptions des professions de cette classification; c) pendant cette période d’emploi, il a exercé une partie appréci- able des fonctions principales de la profession figurant dans les descriptions des professions de cette classification, notamment toutes les fonctions essentielles. Exigences (3) Si l’étranger ne satisfait pas aux exigences prévues au paragraphe (2), l’agent met fin a` l’examen de la demande de visa de résident permanent et la refuse. Mihura Torres v. Canada (MCI) Michel M.J. Shore J. 67

Critères de sélection 76. (1) Les critères ci-après indiquent que le travailleur qualifié peut réussir son etablissement´ economique´ au Canada a` titre de membre de la catégorie des travailleurs qualifiés (fédéral): a) le travailleur qualifié accumule le nombre minimum de points visé au paragraphe (2), au titre des facteurs suivants: (i) les etudes,´ aux termes de l’article 78, (ii) la compétence dans les langues officielles du Canada, aux termes de l’article 79, (iii) l’expérience, aux termes de l’article 80, (iv) l’âge, aux termes de l’article 81, (v) l’exercice d’un emploi réservé, aux termes de l’article 82, (vi) la capacité d’adaptation, aux termes de l’article 83; b) le travailleur qualifié: (i) soit dispose de fonds transférables — non grevés de dettes ou d’autres obligations financières — d’un montant egal´ a` la moitié du revenu vital minimum qui lui permettrait de subvenir a` ses propres besoins et a` ceux des membres de sa famille, (ii) soit s’est vu attribuer le nombre de points prévu au paragraphe 82(2) pour un emploi réservé au Canada au sens du paragraphe 82(1).

VIII. Standard of Review 25 As noted in Chen v. Canada (Minister of Citizenship & Immigration), 2007 FC 41, 155 A.C.W.S. (3d) 168 (F.C.), this Court held that the correctness standard applies to questions of procedural fairness or natural justice (at para 10). Where a breach of the duty of fairness occurs, a decision of an administrative body must be set aside. 26 As for the discretionary decision of the Immigration Officer, considerable deference must be given to the decision-maker by the Court when reviewing the exercise of that discretion; thus, the standard of review is one of reasonableness (New Brunswick (Board of Management) v. Dun- smuir, 2008 SCC 9, [2008] 1 S.C.R. 190 (S.C.C.) and Hanif c. Canada (Ministre de la Citoyennet´e & de l’Immigration), 2009 FC 68, 176 A.C.W.S. (3d) 509 (F.C.)). 68 IMMIGRATION LAW REPORTER 2 Imm. L.R. (4th)

IX. Analysis New evidence 27 The Respondent submits that the Applicant refers to new evidence that was not before the Immigration Officer. 1) A detailed description of the duties she performs for her employer Sodexho. (This document is undated but the certified translation is dated July 29, 2010, posterior to the consideration of her application.); 2) Allegations that it is difficult to obtain detailed employment letters in Venezuela, and that it is the Applicant’s understanding that non-descriptive letters are accepted by the Canadian Embassy; 3) Information concerning the Applicant’s sister, Marifran Mihura, who became a permanent resident of Canada in 2009, and her affidavit affirmed on September 14, 2009, as well as affidavits from Luis Angel Soto Rosal and Mr. Alex- ander Adolfo[] Rendon Barroso, other clients of the Appli- cant’s lawyer who successfully applied for permanent residence in Canada; and, 4) Allegations that another client of the Applicant’s lawyer was given an opportunity to disabuse the immigration officer of his concerns. (Respondent’s Supplementary Memorandum of Argument at para 20). 28 The Respondent submits that, barring exceptional circumstance, evidence that was not before the decision-maker is not admissible before the Court in a judicial review proceeding (Bekker v. R., 2004 FCA 186, 2004 D.T.C. 6404 (F.C.A.) at para 11). 29 The allegations and information concerning the Applicant’s sister do not necessarily constitute new evidence per say; it is for the Court to determine the weight it will accord the evidence. 30 As for the description of the duties the Applicant performs for her employer Sodexho, the Applicant submits that, when informed of the refusal of her federal worker application, the Applicant obtained a description of her current professional responsibilities (Applicant’s Memoran- dum of Argument in Reply at para 16). Mihura Torres v. Canada (MCI) Michel M.J. Shore J. 69

Procedural Fairness 31 In a case with regard to an officer’s duty of advising an applicant of his concerns, this Court confirmed that there is no such duty on a decision-maker: [37] I agree with the Respondent on this issue. It is clear from the record that the Officer asked the Applicant many questions and gave her many opportunities to describe her work experience, job duties etc. It is also well established that an officer has no obligation to notify an applicant about concerns or to allow an applicant the opportunity to respond to those concerns: Ahmed v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 940 (F.C.T.D.). The onus is on an applicant to provide all of the information required for an application of this nature. The Court in Aqeel v. Canada (Minister of Citizenship and Immigration), 2006 FC 1498confirmed as follows: 12. The onus is also on the applicant to set out the relevant factors that must be considered on the assessment in order for the officer to find that relevant humanitarian and compassionate grounds exist (IP 5 Manual: Immigrant Applications in Canada made on Humanitarian or Com- passionate Grounds (the Manual), Citizenship and Immi- gration Canada, 5.29). In Owusu v. Minister of Citizenship and Immigration, 2004 FCA 38, Mr. Justice Evans, for the Federal Court of Appeal, wrote at paragraph 8: ... And, since applicants have the onus of establishing the facts on which their claim rests, they omit pertinent information from their written submissions at their peril. [Emphasis added]. (Kaur v. Canada (Minister of Citizenship & Immigration), 2008 FC 1189, 172 A.C.W.S. (3d) 195 (F.C.)).

An Additional Issue for Consideration - the New Rules 32 The Applicant also submitted that the letter of March 19, 2010, is not in conformity with the statutory regime, because it clearly mentions that the Applicant’s application was transferred to the CPP-O to speed up processing of her application, as part of the Government of Canada’s Ac- tion Plan for Faster Immigration. According to the Applicant, her application was evaluated under the new rules pertaining to the Government of Canada’s Action Plan for Faster Immigration, which should only apply to those federal worker applications received on or after February 27, 70 IMMIGRATION LAW REPORTER 2 Imm. L.R. (4th)

2008; whereas, all applications made before this date will be processed according to the rules that were in effect at that time. The Applicant reit- erates that she presented her federal worker application on April 4, 2007. 33 The Respondent’s answer is that the new rules were not applied to the Applicant’s case. The Respondent introduced as evidence the affidavit of Mr. James McNamee, an acting director at CIC with extensive knowledge of the policy and program context behind the Action Plan for Faster Immigration. Mr. McNamee confirmed that, since the Applicant’s application was received on April 4, 2007, her application was assessed in accordance with the eligibility requirements in place prior to the effective date of the ministerial instructions.

Was the Immigration Officer’s decision reasonable? 34 The Applicant argues that her duties at Sodexho are implicit from her title of managerial duties in her work at Sodexho. She also argued that the regime in Venezuela is distinctly unfavourable to business and has generated a climate where job security is always an issue and cannot be taken for granted. According to the Applicant, requesting an employment letter which refers to employment duties as per the CPP-O specifications often raises suspicions about employee loyalty and could possibly constitute grounds for dismissal. 35 The Applicant also submits that the Immigration Officer did not review every document in her application. The Immigration Officer refers to “only one letter of reference from previous employer (from Sodexho), and the letter has no details”; however, the Applicant claims she submitted a letter from Televen, dated March 11, 2005, and a letter from RCTV, dated November 1, 2006. All of which does not constitute new evidence (Applicant’s Memorandum of Argument in Reply at para 6). 36 The Court also notes that the March 19, 2010 letter asked the Appli- cant to provide employment letters containing details of the actual employment duties performed. The letter also mentioned that the CPP-O is “...under no obligation to further request detailed employment letters.” (TR at p 14). 37 This case, at first blush, would appear not to fall within the category of cases where a duty to give an applicant an opportunity to disabuse an Immigration Officer of concerns may arise. The Court fully recognizes that applicants for permanent residence in Canada bear the onus of providing adequate and sufficient information in support of their application Mihura Torres v. Canada (MCI) Michel M.J. Shore J. 71

(Khan v. Canada (Minister of Citizenship & Immigration), 2008 FC 121, 164 A.C.W.S. (3d) 855 (F.C.), at para 14; Nabin v. Canada (Minister of Citizenship & Immigration), 2008 FC 200, 165 A.C.W.S. (3d) 341 (F.C.), at para 7); however, it certainly is evident that the Applicant had included more information than is specified by the Immigration Officer. 38 Furthermore, the Court specifies, as is demonstrated in other cases, that when an Immigration Officer resorts to extrinsic evidence, an applicant has no way of knowing whether, in fact, such evidence will be used in an adverse manner; a duty then does exist to ensure that an opportunity is given to an applicant to respond to such evidence. In addition, where credibility, accuracy or the genuine nature of information is in question, a duty also exists to give an opportunity to an applicant to disabuse an officer of any concerns that may arise (Hassani v. Canada (Minister of Citizenship & Immigration), 2006 FC 1283, 152 A.C.W.S. (3d) 898 (F.C.), at para 24). Subsequent to the Court’s full canvassing of the issues, as is discussed above, this paragraph of the Court is pivotal; and, on it rests the central core of the Court’s decision further to the Court’s full consideration of all of the issues. 39 Without omitting to specify that a failure to provide reliable supporting evidence does create a fait accompli that seriously jeopardizes chances of an applicant: [24] The case law establishes that the onus is on the applicant to file an application with all relevant supporting documentation and to provide sufficient credible evidence in support of his application. The applicant must put his “best case forward”. (Chen v. Canada (Min- ister of Citizenship and Immigration), [1999] F.C.J. No. 1123, para. 26; Dardic v. Canada (Minister of Citizenship and Immigration), 2001 FCT 150, [2001] F.C.J. No. 326 (QL); Tahir v. Canada (Min- ister of Citizenship and Immigration) (1998), 159 F.T.R. 109, [1998] F.C.J. No. 1354 (QL); Lam v. Canada (Minister of Citizenship and Immigration) (1998), 152 F.T.R. 316, [1998] F.C.J. No. 1239 (QL).) (Oladipo v. Canada (Minister of Citizenship & Immigration), 2008 FC 366, 166 A.C.W.S. (3d) 355 (F.C.)). 40 In this specific case, the Applicant did appear to provide, under the existing country and personal circumstances of the Applicant, the “sufficient credible evidence in support of [the] application” and the “best case forward” was provided, as specified in the above jurisprudence (Chen v. Canada (Minister of Citizenship & Immigration), [1999] F.C.J. No. 1123, 171 F.T.R. 265 (Fed. T.D.) at para 26). 72 IMMIGRATION LAW REPORTER 2 Imm. L.R. (4th)

X. Conclusion 41 The Applicant’s arguments demonstrate that serious reasons exist to believe that the Immigration Officer erred in law or that his decision was based on erroneous findings of fact; therefore, the relief requested by the Applicant is granted. 42 For all of the above reasons, the Applicant’s application for judicial review is granted and the matter is remitted for redetermination by a different Immigration Officer.

Judgment THIS COURT ORDERS that the application for judicial review be granted and the matter be remitted for redetermination by a different Im- migration Officer. No question for certification. Application granted. Paz Ospina v. Canada (MCI) 73

[Indexed as: Paz Ospina v. Canada (Minister of Citizenship & Immigration)] Pedro Manuel Paz Ospina, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-3324-10 2011 FC 681 Leonard S. Mandamin J. Heard: December 8, 2010 Judgment: June 13, 2011 Immigration and citizenship –––– Refugee protection — Elements of pro- tected refugee status — Fear of persecution — Well-founded fear –––– Claimant was auditor from Colombia who was contracted out with company located in town of Puerto Tejada — Claimant hired private driver — In 2008, driver proposed that claimant take on private contract work analyzing inventory controls of supermarket owned by M — Claimant took on work but later real- ized that H and M were involved in illegal activities such as extorting money from companies and paying off police, and M wanted claimant to organize his illegal extortion business; claimant did not comply — Claimant returned to Bo- gota but began receiving calls from H asking when he would be returning; H visited claimant’s uncle asking for claimant’s contact information but uncle did not provide any information — Claimant stated that H called him telling him that M did not like how he was evading them and that he had better do these things willingly or else — Claimant left Colombia and arrived in Canada on tourist visa in 2008 and made inland refugee claim in 2009 — Member of Refu- gee Protection Division of Immigration and Refugee Board (RPD) determined that claimant was not Convention refugee and not person in need of protection — RPD found that H and M did not demonstrate much ability to pursue claimant and only knew his cell phone number and his uncle’s residence; fact that H was asking uncle for contact information was evidence that H did not know claimant’s contact details — RPD held that it did not find on balance of probabilities that claimant would be pursued by agent of persecution if he returned to Colombia — Claimant brought application for judicial review — Ap- plication granted — Test for objective basis for well-founded fear of persecution is whether there is reasonable chance or more than mere possibility that claimant faces prospective risk of persecution — RPD’s express reliance on balance of probabilities test instead of correct standard of proof imposed higher standard of proof on claimant than set out by Federal Court of Appeal; this was reviewable 74 IMMIGRATION LAW REPORTER 2 Imm. L.R. (4th) error — RPD found claimant to be credible witness; given claimant’s evidence of what he considered to be threats, it was impossible to know whether decision would have been different had RPD applied correct standard. Cases considered by Leonard S. Mandamin J.: Adjei v. Canada (Minister of Employment & Immigration) (1989), [1989] 2 F.C. 680, 7 Imm. L.R. (2d) 169, 57 D.L.R. (4th) 153, 132 N.R. 24, 1989 Car- swellNat 628, 1989 CarswellNat 40, [1989] F.C.J. No. 67 (Fed. C.A.) — considered 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 Hinzman, Re (2006), 2006 CF 420, 2006 CarswellNat 2739, (sub nom. Hinzman v. Canada (Minister of Citizenship and Immigration)) [2007] 1 F.C.R. 561, (sub nom. Hinzman v. Canada (Minister of Citizenship and Immigration)) 290 F.T.R. 8 (Eng.), 2006 FC 420, 2006 CarswellNat 1779, 55 Imm. L.R. (3d) 54, 266 D.L.R. (4th) 582, 61 Admin. L.R. (4th) 233, [2006] F.C.J. No. 521 (F.C.) — referred to Hinzman, Re (2007), 2007 CarswellNat 950, 2007 FCA 171, (sub nom. Hinzman v. Canada (Minister of Citizenship & Immigration)) 282 D.L.R. (4th) 413, 2007 CarswellNat 3596, 63 Imm. L.R. (3d) 13, 2007 CAF 171, (sub nom. Hinzman v. Canada (Minister of Citizenship & Immigration)) 362 N.R. 1, 61 Admin. L.R. (4th) 313, [2007] F.C.J. No. 584 (F.C.A.) — referred to New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1, 69 Admin. L.R. (4th) 1, 69 Imm. L.R. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) [2008] 1 S.C.R. 190, 844 A.P.R. 1, (sub nom. Dunsmuir v. New Brunswick) 2008 C.L.L.C. 220-020, D.T.E. 2008T-223, 329 N.B.R. (2d) 1, (sub nom. Dunsmuir v. New Brunswick) 170 L.A.C. (4th) 1, (sub nom. Dunsmuir v. New Brunswick) 291 D.L.R. (4th) 577, 2008 CarswellNB 124, 2008 CarswellNB 125, 2008 SCC 9, 64 C.C.E.L. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) 95 L.C.R. 65, [2008] S.C.J. No. 9, [2008] A.C.S. No. 9 (S.C.C.) — followed Ponniah v. Canada (Minister of Employment & Immigration) (1991), 13 Imm. L.R. (2d) 241, 132 N.R. 32, 1991 CarswellNat 43, [1991] F.C.J. No. 359 (Fed. C.A.) — considered Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 96 — considered s. 96 “r´efugi´e” — considered s. 97(1)(a) — considered Paz Ospina v. Canada (MCI) Leonard S. Mandamin J. 75

s. 97(1)(b)(ii) — considered

APPLICATION by claimant for judicial review of decision of Member of Refu- gee Protection Division of Immigration and Refugee Board, determining that claimant was not Convention refugee and not person in need of protection.

Ms Lobat Sadrehashemi, for Applicant Ms Brie Reilly, for Respondent

Leonard S. Mandamin J.:

1 Mr. Pedro Manuel Paz Ospina applies for judicial review of the May 17, 2010 decision of a Member of the Refugee Protection Division of Immigration and Refugee Board (the RPD) determining that the Appli- cant was not a Convention refugee and not a person in need of protection. 2 The Applicant, an auditor from Colombia, claimed persecution by criminals seeking to make him work for their illegal enterprise and provide them with information about another company he had worked for. 3 The Applicant submits the RPD erred in law in stating that the standard of proof for establishing a well-founded fear of persecution was to be determined on a balance of probabilities, instead of establishing whether there was a reasonable chance that persecution would take place if he were to return to Colombia. 4 I have concluded that the RPD erred in law by relying on the balance of probabilities test instead of the reasonable chance of persecution test. For that reason, I am granting this application for judicial review.

Facts 5 Mr. Pedro Manuel Paz Ospina (the Applicant) is a citizen of Colom- bia from Bogota. He is a professional external auditor for the company Deloitte who was contracted out with a company located in the town of Puerto Tejada. There the Applicant employed a private driver named Herminio Otero (Herminio). In March 2008, Herminio proposed that the Applicant take on private contract work analyzing inventory controls of a supermarket in Puerto Tejada owned by a man named Memo. 6 The Applicant took on the work but after some time, he came to real- ize that Herminio and Memo were involved in illegal activities. The Ap- plicant learned that they were extorting money from companies and pay- 76 IMMIGRATION LAW REPORTER 2 Imm. L.R. (4th)

ing off police, lawyers, and a paramilitary unit. Memo wanted the Applicant to organize his illegal extortion business and provide information about a company the Applicant had previously audited. The Appli- cant did not comply with the proposition. 7 The Applicant returned to Bogota but two to three weeks later in June 2008, began receiving calls on his cell phone from Herminio asking when he would be returning to Puerto Tejada and whether he had the client information Memo wanted. Herminio also visited the Applicant’s uncle in Cali, from where the Applicant had been picked up, asking for the Applicant’s contact information. The uncle did not provide any information to Herminio and left Cali to avoid further contact. 8 In August 2008 Herminio called the Applicant one last time, telling him that Memo did not like how the Applicant was evading them. Herminio told the Applicant “you know too much about our business, we are not going to let it go”, that they would pay him and that he “had better do these things willing or else.” The Applicant decided to go into hiding. As a statutory auditor, the Applicant would have to register at a local chamber of commerce to work, and he believed he would be easy to track. 9 The Applicant left Colombia and arrived in Canada on a tourist visa on October 5, 2008. He made an inland refugee claim on May 27, 2009. 10 On May 17, 2010, the Immigration and Refugee Board, Refugee Pro- tection Division (RPD) found that the Applicant was not a Convention refugee, and that he was not a person in need of protection.

Decision Under Review 11 The RPD recognized that illegal armed groups continue to exist in Colombia. However, the RPD found that the individuals threatening the Applicant did not demonstrate much ability to pursue the Applicant. They only knew the Applicant’s cell phone number and his uncle’s residence. The RPD noted that the fact that Herminio was asking the uncle for contact information was evidence that Herminio did not know the Applicant’s contact details. The uncle had not given any information to Herminio and moved away around mid-August 2008. The only other way in which Herminio attempted to contact the Applicant was through his cell phone. 12 The RPD also noted that although the Applicant lived in Bogota for four months after declining to cooperate, there was no evidence that the Paz Ospina v. Canada (MCI) Leonard S. Mandamin J. 77

agents of persecution demonstrated motivation or ability to pursue the Applicant during that time. 13 The Applicant testified there were a number of phone calls to his mother’s residence between December 2008 and February 2009 claiming to be from a credit card company or bank and asking for particulars about the Applicant. The family did not provide any information to the callers. The RPD did not accept that the calls were from the agents of persecution or that they demonstrate any serious efforts to locate the Ap- plicant, given that there were no threats made. The RPD found that there was no credible or trustworthy evidence that anyone in Colombia has been approached by the agents of persecution about the Applicant since he has left Colombia over one and a half years ago. 14 The RPD found that the evidence suggested it was not of concern to the agents of persecution that the Applicant knew about the illegal activities, as they did not act secretive about it. The RPD did take note that Herminio had said in his last phone call “You know too much about our business, we are not going to let you go” but found there was no credible evidence that the agents of persecution did anything to locate or harm the Applicant subsequent to this call, showing that it was not a serious threat. 15 The RPD concluded its analysis with this paragraph: Overall, I find that there is no objective basis to this claim as the evidence before me does not lead me to find, on a balance of probabilities, that the claimant would be pursued by the agent of persecution if he returns to Colombia. 16 The RPD found that the Applicant was not a Convention refugee, as he did not have a well-founded fear of persecution in Colombia. The RPD also found that he was not a person in need of protection in that his removal to Colombia would not subject him personally to a risk to his life or to a risk of cruel and unusual treatment or punishment.

Legislation 17 The Immigration and Refugee Protection Act, S.C. 2001, c.27 (IRPA) provides: 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, 78 IMMIGRATION LAW REPORTER 2 Imm. L.R. (4th)

(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 (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 96. A qualité de réfugié au sens de la Convention — le réfugié—la personne qui, craignant avec raison d’être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance a` un groupe social ou de ses opinions politiques: a) soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de chacun de ces pays; b) soit, si elle n’a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner. 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: (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 Paz Ospina v. Canada (MCI) Leonard S. Mandamin J. 79

Issues 18 The Applicant submits two issues arise: a. Did the RPD err in stating the standard of proof for establishing a well-founded fear of persecution was to be determined on a balance of probabilities? b. Did the RPD make unreasonable implausibility findings with respect to the future actions of the Applicant’s persecutors?

Standard of Review 19 In New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9 (S.C.C.) (Dunsmuir), the Supreme Court of Canada decided that there were two standards of review, correctness and reasonableness. The standard of review for questions of law was correctness. The standard of review for questions of fact and mixed fact and law was reasonableness: Dunsmuir at paras 50 and 53. 20 Both parties agreed that the issue of the applicable standard of proof, as a question of law, is reviewable on the standard of correctness and the RPD’s findings of fact are reviewable on the standard of reasonableness.

Analysis 21 The Applicant argues that the RPD applied the wrong standard of proof in determining whether there was an objective basis to the Appli- cant’s fear of being returned to Colombia. The standard of proof of the objective test is not a balance of probabilities, but one of a “reasonable chance” or “more than a mere possibility”, which need not be more than a 50% chance but is more than a minimal possibility: Adjei v. Canada (Minister of Employment & Immigration), [1989] 2 F.C. 680 (Fed. C.A.) at para 5 and 8 (Adjei). 22 The Respondent responds that the Applicant confuses the standard of proof for factual findings with the legal test for the objective basis for a well-founded fear of persecution. While the test for an objective basis for a well-founded fear of persecution is one of a “reasonable chance”, the standard of proof applicable to finding of facts is a balance of probabilities. Hinzman, Re, 2006 FC 420 (F.C.) at paras 184, aff’d in Hinzman, Re, 2007 FCA 171 (F.C.A.) (Hinzman). 23 The test for an objective basis for a well-founded fear of persecution is whether there is a “reasonable chance” or “more than a mere possibility” that a claimant faces a prospective risk of persecution. In Adjei the 80 IMMIGRATION LAW REPORTER 2 Imm. L.R. (4th)

Federal Court of appeal stated that the standard was lower than the balance of probabilities at paras 5 and 6: It was common ground that the objective test is not so stringent as to require the probability of persecution. In other words, although an applicant has to establish his case of a balance of probabilities, he does not nevertheless have to prove that the persecution would more likely than not. ... The parties were agreed that one accurate way of describing the req- uisite test is in terms of ‘reasonable chance’: is there a reasonable chance that persecution would take place were the applicant returned to his country of origin? 24 The Federal Court of Appeal in Ponniah v. Canada (Minister of Employment & Immigration) (1991), 132 N.R. 32 (Fed. C.A.) at para 9 elaborated on what was meant by the “reasonable chance” standard established in Adjei: “Good grounds” or “reasonable chance” is defined in Adjei as occu- pying the field between upper and lower limits; it is less than a 50 %chance (i.e., a probability), but more than a minimal or mere possibility. There is no intermediate ground: what falls between the two limits is “good grounds”. 25 I have determined that whether or not the RPD applied the correct test is to be assessed on the standard of correctness. 26 The Respondent points to case law where applicants similarly chal- lenged the RPD’s wording on the grounds that the wrong test was applied: • In Hinzman, the RPD had used the wording “...failed to establish that if deployed to Iraq, he would have engaged, been associated with, or been complicit in military action, con- demned by the international community...” The applicants argued that in using the words, “would have”, the RPD placed too heavy a burden on them. The Court found that these words related to the standard of proof for factual findings, not the legal test: Hinzman, at paras 179-184 • In Morales, the RPD had said “there was no persuasive evidence that Rogelio would be able to trace the claimant anywhere in Mexico.” The Court found that this referred the absence of reliable evidence (a factual finding) rather than a test of persecution: Huerta Morales v. Canada (Minister of Paz Ospina v. Canada (MCI) Leonard S. Mandamin J. 81

Citizenship & Immigration), 2009 FC 216 at para 13 (Morales) • Similarly in Sivagurunathan, the Court found on a reading of the extract as a whole, that the RPD’s use of the word “would” did not indicate a misunderstanding of the appropriate legal test, as the RPD’s mention of “serious possibility of persecution” in the next paragraph demonstrated that the RPD understood the correct test to be applied: Sivagurunathan v. Canada (Minister of Citizenship & Immigration), 2005 FC 432 at paras 4-5 (Sivagurunathan). (emphasis added) 27 The Respondent argues that the disputed paragraph must be read in the context of the entire decision. The Respondent submits that the RPD was analyzing the evidence before him to determine whether on a balance of probabilities the Applicant had demonstrated the fact that his agents of persecution had the means or motivation to pursue the Appli- cant if returned to Colombia. 28 However, in the cases cited by the Respondent, the applicants were trying to show that the RPD’s use of the word “would” implied that the RPD had used the wrong standard of proof. In the present case, the RPD expressly used the words “balance of probabilities.” 29 Unlike the cases cited by the Respondent, the RPD does not articulate the correct standard of proof elsewhere in the decision other than in its conclusion. The concluding paragraph is not part of any analysis but is more in the nature of a formulaic recitation of statutory grounds. 30 Consequently, the disputed paragraph is only part of the RPD’s analysis where the RPD discussed the applicable standard of proof as to whether the Applicant has an objective basis for his claim of persecution. In this crucial paragraph, the RPD is clearly assessing the risk to the Ap- plicant, not the assessment of the facts which underlie the basis to the Applicant’s claim. 31 In assessing the Applicant’s prospective risk of persecution, the RPD’s express reliance on the “balance of probabilities” test instead of the correct standard of proof of a “reasonable chance” or “more than a mere possibility” imposes a higher standard of proof on the Applicant than set out by the Federal Court of Appeal in Adjei. This is a reviewable error. 82 IMMIGRATION LAW REPORTER 2 Imm. L.R. (4th)

32 The RPD found the Applicant to be a credible witness. Given the Ap- plicant’s evidence of what he considered to be threats, it is impossible to know whether the decision would have been different had the RPD applied the correct standard of “reasonable chance” or “more than a mere possibility” to the risk of persecution. 33 In Alam v. Canada (Minister of Citizenship & Immigration), 2005 FC 4 (F.C.) (Alam), the Court stated at para 9: The case law referred to above shows that where the Board has articulated the gist of the appropriate standard of proof (i.e. the combination of the civil standard with the concept of a “reasonable chance”), this Court has not intervened. On the other hand, where it appears that the Board has elevated the standard of proof, the Court has gone on to consider whether a new hearing is required. Further, if the Court cannot determine what standard of proof was applied, a new hearing may be necessary: Begollari v. Canada (Minister of Cit- izenship and Immigration), 2004 FC 1340, [2004] F.C.J. 1613 (T.D.) (QL). 34 Having regard to my conclusion that the RPD erred in applying an incorrect standard of proof to whether the Applicant had an objective basis for a well-founded fear of persecution if he were to return to Co- lombia, I need not address the issue of whether the RPD made unreasonable implausibility findings with respect to the future actions of the Ap- plicant’s persecutors.

Conclusion 35 The application for judicial review is granted. 36 The matter is to be returned for re-determination by a differently constituted panel. 37 I do not certify any question of general importance.

Judgment THIS COURT ORDERS AND ADJUDGES that: 1. The application for judicial review is granted. 2. The matter is to be returned for re-determination by a differently constituted panel. 3. No question of general importance is certified. Application granted. Nyota v. Canada (MCI) 83

[Indexed as: Nyota v. Canada (Minister of Citizenship & Immigration)] Katy Nyota, Eric Nonda & Luc Nonda, Applicants and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-4289-10 2011 FC 675 John A. O’Keefe J. Heard: January 19, 2011 Judgment: June 13, 2011 Immigration and citizenship –––– Refugee protection — Elements of pro- tected refugee status — Fear of persecution — What constituting persecution — Gender-based claims –––– Applicant lived with her husband and two children in Lubumbashi — Applicant faced discrimination and feared violence on basis of her mixed ethnicity — In 2001, applicant and her family moved — In August 2008, rebels entered applicant’s house, threatened to kill her baby, raped her, and took her husband and stepson — Applicant escaped, arrived in Calgary on October 15, 2008, and filed for refugee protection — On June 30, 2010, board determined that applicants were not convention refugees or persons in need of protection — Applicants brought application for judicial review — Application granted — Despite finding that applicant was victim of sexual violence, board did not assess possibility of persecution on basis of gender — Board also did not assess documentary evidence concerning persecution based on gender — It was error for board to omit any analysis of this documentary evidence — Board’s conclusion that financial extortion could not found basis for refugee claim was inaccurate statement of law — Board was required to assess whether risk of extortion amounted to persecution. Cases considered by John A. O’Keefe 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 Chacon v. Canada (Minister of Citizenship & Immigration) (2005), 2005 Car- swellNat 2243, (sub nom. Prato v. Canada (Minister of Citizenship and Im- migration)) 2005 FC 1088, 2005 CarswellNat 3073, 2005 CF 1088, [2005] F.C.J. No. 1345 (F.C.) — considered Dezameau v. Canada (Minister of Citizenship & Immigration) (2010), 89 Imm. L.R. (3d) 169, 2010 CarswellNat 1459, 2010 FC 559, 369 F.T.R. 151 (Eng.), 84 IMMIGRATION LAW REPORTER 2 Imm. L.R. (4th)

2010 CarswellNat 2461, 2010 CF 559, [2010] A.C.F. No. 710, [2010] F.C.J. No. 710 (F.C.) — considered Marshall v. Canada (Minister of Citizenship & Immigration) (2008), 2008 FC 946, 2008 CarswellNat 2865, 2008 CF 946, 2008 CarswellNat 3912, [2008] F.C.J. No. 1179 (F.C.) — considered Morales v. Canada (Minister of Citizenship & Immigration) (2008), 2008 FC 1267, 2008 CarswellNat 4178 (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 Sinnasamy v. Canada (Minister of Citizenship & Immigration) (2008), 2008 FC 67, 2008 CarswellNat 93, 68 Imm. L.R. (3d) 246, [2008] F.C.J. No. 77 (F.C.) — considered Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Generally — referred to s. 72(1) — pursuant to s. 96 — considered s. 96 “r´efugi´e” — considered s. 97 — considered s. 97(1) — considered

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

Sheila K. Pahl, for Applicant Jamie Freitag, for Respondent

John A. O’Keefe J.:

1 This is an application pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 (the Act) for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the Board), dated June 30, 2010, wherein the applicants Nyota v. Canada (MCI) John A. O’Keefe J. 85

were determined not to be Convention refugees or persons in need of protection under sections 96 and 97 of the Act. 2 The applicants request that the decision be set aside and the claim remitted for redetermination by a different member of the Board.

Background 3 Katy Nyota (the principal applicant) was born in Lubumbashi, Demo- cratic Republic of the Congo (DRC) on November 24, 1982. She is married to Papy Nonda with whom she has two children, Luc and Eric Nonda (the minor applicants). Her husband also has a son from a previous relationship. 4 The principal applicant lived with her family in Lubumbashi, DRC until 2001. There, she alleges that she faced discrimination and feared violence on the basis of her mixed ethnicity of Hutu and Tutsi. The principal applicant eventually moved to Mweso, north of Goma, DRC with her husband and children. 5 In August 2008, rebels entered Mweso and began killing local people and raping women and girls. They also kidnapped young men and boys. 6 The principal applicant alleges that the rebels entered her house and demanded money which she and her husband had earned from their business. The rebels threatened to decapitate the principal applicant’s baby. They then raped and beat the principal applicant in front of her children. The principal applicant’s husband and step son were taken and she has not heard from them since. 7 With her children, the principal applicant escaped to Goma, DRC, where there was continued violence. She was able to buy a flight to Lubumbashi, where she encountered a man with whom she previously did business who helped her escape to Canada. 8 The principal applicant arrived in Calgary on October 15, 2008 and filed for refugee protection.

Board’s Decision 9 The Board found a nexus between the principal applicant’s claim and a Convention ground, as she was a victim of past sexual violence. The Board also found a nexus for the minor applicants on the ground of their mixed ethnicity. 86 IMMIGRATION LAW REPORTER 2 Imm. L.R. (4th)

10 The Board did not find that the principal applicant faced a serious possibility of persecution on the basis of a Convention ground. She and her children were caught in localized crime and were not specifically targeted. Even if they were specifically targeted, it was for money and there was no indication that they would be pursued in the future. The Board also noted that financial extortion cannot found the basis for a refugee claim. 11 The Board further determined that the principal applicant did not face a serious possibility of persecution on the basis of her ethnicity. The discrimination the principal applicant described arose over a period of less than three years in Lubumbashi and did not amount to the level of persecution contemplated by the Act. 12 The Board found that the same analysis of section 96 applied to section 97 and the evidence did not persuade the Board that the applicants would face a personalized risk of life, torture or cruel treatment if they returned to the DRC.

Issues 13 The issues are as follows: 1. What is the appropriate standard of review? 2. Did the Board err in finding that the applicants did not face persecution on the basis of a Convention ground? 3. Did the Board err by not conducting a separate section 97 analysis? 4. Did the Board fail to address the psychological report submitted by the applicants? 5. Did the Board err by not assessing the risk faced by the minor applicants of recruitment or kidnapping?

Applicants’ Written Submissions 14 The principal applicant submits that the Board found a nexus to a Convention ground based on her gender. However, despite finding a nexus, the Board erred in failing to analyze the evidence before it concerning gender based violence in the DRC. The evidence demonstrated that sexual violence in the DRC is used as a weapon of war against women and girls and legislation has been largely unable to combat such Nyota v. Canada (MCI) John A. O’Keefe J. 87

violence. The Board’s finding of generalized crime does not preclude a finding of persecution on a Convention ground. 15 The applicants also submit that the Board merely provided a conclusion on section 97 without undergoing a proper analysis. 16 Finally, the applicants submit that the Board did not properly address the matter of risk of psychological deterioration addressed in the psychological report prepared by Dr. Beverly Frizzell. The Board also failed to assess the risk of forced recruitment or kidnapping of the two minor applicants if returned to the DRC.

Respondent’s Written Submissions 17 The respondent submits that membership in a social group is not sufficient for a finding of persecution. The onus is on the applicants to satisfy the Board that there is a serious risk of harm that is more than a mere possibility. The Board did not discount a finding of persecution based on general risk. Rather, it examined the evidence and found a nexus to Con- vention grounds and assessed the likelihood of risk to the applicants if returned to the DRC on a balance of probabilities. 18 The respondent submits that the Board conducted a sufficient section 97 analysis in conjunction with a section 96 analysis and that it was entitled to conduct such analyses concurrently. 19 The respondent submits that the Board specifically referred to Dr. Frizzell’s psychological report. The applicants have not shown that the Board failed to consider this evidence or the psychological consequences if the applicants return to the DRC. 20 The Board acknowledged the risks of living in the DRC but found that the applicants would not face a personalized risk of cruel and unusual treatment, punishment or torture if they retuned to the DRC. This included the risks faced by the minor applicants.

Analysis and Decision Issue 1 What is the appropriate standard of review? 21 Where previous jurisprudence has determined the standard of review applicable to a particular issue, the reviewing court may adopt that standard (see New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9, [2008] 1 S.C.R. 190 (S.C.C.) at paragraph 57). 88 IMMIGRATION LAW REPORTER 2 Imm. L.R. (4th)

22 The issue of whether the Board erred by not applying a section 97 analysis is a question of law reviewable on a standard of correctness. As I held in Marshall v. Canada (Minister of Citizenship & Immigration), 2008 FC 946 (F.C.) at paragraph 28, the Board’s conclusion as to whether a refugee claimant faces persecution or a risk to her life or of torture or cruel and unusual punishment is a question of mixed fact and law and is therefore subject to review on a standard of reasonableness. 23 Any failure by the Board to consider the totality of the evidence is an error of law also reviewable on the correctness standard (see Morales v. Canada (Minister of Citizenship & Immigration), 2008 FC 1267 (F.C.) at paragraph 12).

Issue 2 Did the Board err in finding that the applicants did not face persecution on the basis of a Convention ground? 24 The Board found that the principal applicant belonged to the particular social group of victims of past sexual violence. I agree with the respondent that in Dezameau v. Canada (Minister of Citizenship & Immi- gration), 2010 FC 559 (F.C.), Mr. Justice Yvon Pinard held that membership in a social group is not adequate, alone, to result in a finding of persecution. At paragraph 29 he held: This is not to say that membership in a particular social group is sufficient to result in a finding of persecution. The evidence provided by the applicant must still satisfy the Board that there is a risk of harm that is sufficiently serious and whose occurrence is “more than a mere possibility”. 25 The Board found that the principal applicant was a victim of sexual violence. It made no adverse credibility findings and therefore accepted the principal applicant’s allegations that she was raped and beaten in front of her children. This sexual violence was taken out on the principal applicant and not her husband or step son. Despite these findings, the Board did not assess the possibility of persecution on the basis of gender. 26 In addition, the Board did not assess the documentary evidence before it concerning persecution based on gender. The principal applicant presented documentary evidence of the persecution that women face in the DRC. Among other evidence before the Board was an article by the In- ternal Displacement Monitoring Centre: Democratic Republic of the Nyota v. Canada (MCI) John A. O’Keefe J. 89

Congo “Massive Displacement and Deteriorating Humanitarian Condi- tions” which stated that: Despite all initiatives undertaken to counter sexual violence, rape continues to be widespread. According to an Oxfam survey, sexual violence has increased dramatically since the military offensives against the FDLA began in January 2009 (Oxfam, 14 July 2009).... Thousands of women have also been abducted and kept as slaves in the forces’ camps to provide sexual, domestic and agricultural services. Government soldiers and rebel fighters have committed widespread sexual violence to attack the fundamental values of the community, to scare the civilian population into submission, to punish them for allegedly supporting enemy forces or to provide gratification for the soldiers or militia members. 27 Further, the United Nations Security Council Twenty-ninth Report of the Secretary-General on the United Nations Organization Mission in the Democratic Republic of the Congo, S/2009/472 observed that: Sexual violence in the Democratic Republic of the Congo remained severe during the reporting period, with rapes and other forms of sexual violence perpetrated by armed groups, security forces and, in- creasingly, civilians. In North and South Kivu, in some areas where operation Kimia II was being conducted, humanitarian organizations were either unable to access sites to provide services, or survivors were unable to access medical services due to ongoing fighting. High incidences of sexual violence were reported in Shabunda in South Kivu, and Lubero and Walikale in North Kivu, but access to those areas remained especially difficult. 28 Finally, the Human Rights Watch report, Soldiers Who Rape, Com- manders Who Condone: Sexual Violence and Military Reform in the Democratic Republic of the Congo was also before the Board. This report outlined that: In the Democratic Republic of Congo, tens of thousands of women and girls have suffered horrific acts of sexual violence. The government army, the Forces Armées de la République Démocratique du Congo (FARDC), is one of the main perpetrators, contributing to the current climate of insecurity and impunity in eastern Congo. FARDC soldiers have committed gang rapes, rapes leading to injury and death, and abductions of girls and women. Their crimes are serious violations of international humanitarian law. Commanders have frequently failed to stop sexual violence and may themselves be guilty 90 IMMIGRATION LAW REPORTER 2 Imm. L.R. (4th)

of war crimes or crimes against humanity as a consequence. Al- though other armed groups also commit brutal acts of sexual violence against women and girls, the sheer size of the Congolese army and its deployment throughout the country make it the single largest group of perpetrators. 29 The evidence before the Board was of extreme sexual violence directed at women and girls in the DRC. While the Board need not refer to every document before it, its conclusion must acknowledge any contra- dictory evidence (see Cepeda-Gutierrez v. Canada (Minister of Citizenship & Immigration) (1998), 157 F.T.R. 35 (Fed. T.D.)). It was an error for the Board to omit any analysis of this documentary evidence. 30 The principal applicant was a victim of this violence when she was raped and assaulted by rebels in Mweso. Through personal testimony and documentary evidence, the principal applicant argued that there was more than a mere possibility that she would be persecuted on the basis of membership in the particular social group of women in the DRC. The Board was required to analyze the risk of persecution on the basis of gender.

Issue 3 Did the Board err by not conducting a separate section 97 analysis? 31 Instead of undergoing an analysis of the gender based claim of persecution, the Board determined that the principal applicant has experienced localized crime in the form of extortion and that “financial extortion cannot found the basis for a refugee claim.” The Board’s conclusion is an inaccurate statement of the law. 32 The Board relied on Chacon v. Canada (Minister of Citizenship & Immigration), 2005 FC 1088 (F.C.). However, I disagree with the Board that in this case Mr. Justice Pinard held that extortion can never form the basis of a refugee claim. Rather, he held that the Board’s finding that in that case, extortion had no connection to a Convention ground, was supported by the documentary evidence. 33 Recent jurisprudence from this Court indicates that in some instances, extortion may amount to persecution. For example, in Sinnasamy v. Canada (Minister of Citizenship & Immigration), 2008 FC 67 (F.C.), Mr. Justice Yves de Montigny held at paragraph 25: As demands for bribes by the police are a form of extortion, they may also, in relevant circumstances, amount to “persecution” for the Nyota v. Canada (MCI) John A. O’Keefe J. 91

purposes of the Convention: see Kularatnam v. Canada (Minister of Citizenship & Immigration), 2004 FC 1122 (F.C.), at paras. 10-13. 34 The Board was required to assess whether the risk of extortion amounted to persecution under section 96 or a risk under section. 35 Given the above errors, the application for judicial review is allowed. 36 Neither party wished to submit a proposed serious question of general importance for my consideration for certification.

Judgment 37 IT IS ORDERED that the application for judicial review is allowed, the decision of the Board is set aside and the matter is remitted to a different member of the Board for redetermination. Application granted.

Appendix Relevant Statutory Provisions Immigration and Refugee Protection Act, SC 2001, c 27 72.(1) Judicial review by the Federal Court with respect to any matter — a decision, determination or order made, a measure taken or a question raised — under this Act is commenced by making an application for leave to the Court. 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 92 IMMIGRATION LAW REPORTER 2 Imm. L.R. (4th)

(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. Eugene c. Canada (MCI) 93

[Indexed as: Eugene c. Canada (Ministre de la Citoyenneté & de l’Immigration)] Evans Eugene, Applicant and Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-5122-10 2011 FC 671, 2011 CF 671 Simon Noël J. Heard: June 1, 2011 Judgment: June 17, 2011 Immigration and citizenship –––– Exclusion and removal — Inadmissible classes — Criminality –––– Applicant had been member of Haitian national police force — From 1996 to 1999, applicant worked in special unit, CIMO, assigned to crowd control during demonstrations — While working for CIMO, applicant was on duty during three demonstrations — There were abuses by CIMO, but applicant stated that he never witnessed any abuses directly — Ap- plicant came to Canada and applied for permanent residence — Officer refused applicant’s application based on ground that applicant was complicit in war crime, genocide or crime against humanity — Applicant brought application for judicial review — Application granted — Officer’s decision was flawed because of inadequate reasons — It was not possible to discern that officer had real understanding of legal framework applicable to crimes against humanity — Of- ficer’s letter did not specify which of three categories applied — As officer’s letter stated that only years in CIMO were held against applicant, genocide and war crimes had to be excluded from analysis since there was no recognition that war or genocide happened in those years — Decision did not identify any elements of war crime — Decision was devoid of any analysis of legal framework applicable to complicity in crimes against humanity alleged — Applicant’s membership in CIMO alone was not adequate justification for inadmissibility. Cases considered by Simon Noël J.: Chiarelli v. Canada (Minister of Employment & Immigration) (1992), 2 Admin. L.R. (2d) 125, 16 Imm. L.R. (2d) 1, 135 N.R. 161, 72 C.C.C. (3d) 214, 8 C.R.R. (2d) 234, [1992] 1 S.C.R. 711, 90 D.L.R. (4th) 289, 1992 Car- swellNat 18, 1992 CarswellNat 653, EYB 1992-67215, [1992] S.C.J. No. 27 (S.C.C.) — 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, 94 IMMIGRATION LAW REPORTER 2 Imm. L.R. (4th)

304 D.L.R. (4th) 1, 77 Imm. L.R. (3d) 1, 385 N.R. 206, (sub nom. Canada (Citizenship & Immigration) v. Khosa) [2009] 1 S.C.R. 339, [2009] S.C.J. No. 12 (S.C.C.) — considered Moreno v. Canada (Minister of Employment & Immigration) (1993), 159 N.R. 210, 107 D.L.R. (4th) 424, 1993 CarswellNat 124, 1993 CarswellNat 1343, 21 Imm. L.R. (2d) 221, [1994] 1 F.C. 298, [1993] F.C.J. No. 912 (Fed. C.A.) — referred to Mugesera c. Canada (Ministre de la Citoyenneté & de l’Immigration) (2005), (sub nom. Mugesera v. Canada (Minister of Citizenship & Immigration)) 197 C.C.C. (3d) 233, 2005 SCC 40, 2005 CarswellNat 1740, 2005 Car- swellNat 1741, 254 D.L.R. (4th) 200, 28 Admin. L.R. (4th) 161, 30 C.R. (6th) 39, (sub nom. Mugesera v. Canada (Minister of Citizenship & Immi- gration)) 335 N.R. 229, 47 Imm. L.R. (3d) 16, [2005] 2 S.C.R. 100, [2005] S.C.J. No. 39, EYB 2005-91971 (S.C.C.) — considered 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 Ogunfowora v. Canada (Minister of Citizenship & Immigration) (2007), 2007 CF 471, 2007 FC 471, 2007 CarswellNat 1022, 63 Imm. L.R. (3d) 157, 2007 CarswellNat 3368, [2007] F.C.J. No. 637 (F.C.) — referred to Plaisir c. Canada (Ministre de la Citoyenneté & de l’Immigration) (2007), (sub nom. Plaisir v. Canada (Minister of Citizenship & Immigration)) 325 F.T.R. 60 (Eng.), 2007 CF 264, 2007 CarswellNat 536, 2007 FC 264, 2007 Car- swellNat 5126, [2007] F.C.J. No. 391 (F.C.) — referred to Ramirez v. Canada (Minister of Employment & Immigration) (1992), 89 D.L.R. (4th) 173, [1992] 2 F.C. 306, 135 N.R. 390, 1992 CarswellNat 94, 1992 Car- swellNat 94F, [1992] F.C.J. No. 109 (Fed. C.A.) — considered Saridag v. Canada (Minister of Employment & Immigration) (1994), 1994 Car- swellNat 418, 85 F.T.R. 307, [1994] F.C.J. No. 1516 (Fed. T.D.) — referred to Sivakumar v. Canada (Minister of Employment & Immigration) (1993), 1993 CarswellNat 242, 1993 CarswellNat 242F, 163 N.R. 197, [1994] 1 F.C. 433, [1993] F.C.J. No. 1145 (Fed. C.A.) — considered Suresh v. Canada (Minister of Citizenship & Immigration) (2002), 2002 SCC 1, 37 Admin. L.R. (3d) 159, [2002] 1 S.C.R. 3, 2002 CarswellNat 7, 2002 Car- swellNat 8, 18 Imm. L.R. (3d) 1, 208 D.L.R. (4th) 1, 281 N.R. 1, 90 C.R.R. (2d) 1, [2002] S.C.J. No. 3, REJB 2002-27423 (S.C.C.) — referred to Eugene c. Canada (MCI) Simon Noël J. 95

Warainch v. Canada (Minister of Citizenship & Immigration) (2011), 2011 FC 55, 2011 CarswellNat 125 (F.C.) — considered Statutes considered: Crimes Against Humanity and War Crimes Act, S.C. 2000, c. 24 Generally — referred to Criminal Code, R.S.C. 1985, c. C-46 Generally — referred to Immigration and Refugee Protection Act, S.C. 2001, c. 27 Generally — referred to s. 35 — referred to

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

St´ephanie Valois, for Applicant Normand Lemire, for Respondent

Simon No¨el J.:

[UNREVISED CERTIFIED ENGLISH TRANSLATION] 1 This Court must rule on an application for judicial review of the decision by an immigration officer in the Dominican Republic to refuse the applicant’s application for permanent residence on the ground that he was [TRANSLATION] “inadmissible to Canada under section 35” of the Immigration and Refugee Protection Act, SC 2001, c 11 (IRPA). The applicant was found inadmissible because of [TRANSLATION] “reasonable grounds to believe that, from 1996 to 1999, while you were a member of the Haitian national police force [Police nationale d’Ha¨ıti (PNH)], you were complicit in a war crime, genocide or a crime against humanity.” 2 The body of the decision consists of a letter, dated May 18, 2010. The letter reproduces the definitions of the alleged offences as set out in the Crimes Against Humanity and War Crimes Act, SC 2000, c 24. The letter also details the consequences of inadmissibility. To complement this letter, it is necessary to read the officer’s notes in the Computer-Assisted Immigration Processing System (CAIPS). Rather curiously, the CAIPS notes were entered in the system after the refusal letter was written. In this case, the CAIPS notes are a report of the interview held with the applicant. 96 IMMIGRATION LAW REPORTER 2 Imm. L.R. (4th)

3 The notes contain the following key components of the decision: a. The applicant began working as a police officer in the PNH in 1995. He then worked in a special unit, the Compagnie d’intervention et de maintien de l’ordre (CIMO) [public order and intervention force], operating in the capital city and assigned to crowd control during demonstrations. After that, he worked as a bodyguard for the Minister of the Interior. b. While working for the CIMO, the applicant was on duty during three demonstrations. He carried a heavy weapon. He stated that he had heard of the CIMO’s abuses at that time, but never witnessed any directly. c. The CIMO’s abuses are recorded in the documentary evidence, which recounts murders, disappearances and violence. d. The officer was concerned about the applicant’s presence at demonstrations and the role he may have played in repressing the expression of political opinions. e. The officer found that the applicant was complicit in the abuses recounted. 4 Aside from that, the decision also states that, at the end of the interview, the decision-maker advised the applicant of his inadmissibility. 5 The applicant submits that the immigration officer’s decision is in error, for two principal reasons. First, the applicant contends that he had no knowledge of the specific crimes alleged in the reasons. Inferring that these were repressive actions by the CIMO, the applicant argued that these actions are not crimes against humanity. Furthermore, since the applicant’s alleged complicity is at issue, he contends that the reasons for the decision are inadequate in terms of the legal characterization of the applicant’s “complicity”. Thus, the legal argument concerns the adequacy of the reasons for the decision that the applicant is inadmissible for having taken part in crimes against humanity, war crimes or genocide. 6 The Minister argued that it was possible and, in this case, desirable, that the Court supplement the reasons for the decision. This argument is rooted in the decision of the Supreme Court in New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9 (S.C.C.), at paragraph 48, in which the Court stated that the reasonableness of a decision is assessed with respect “to the reasons offered or which could be offered in support of a decision”, quoting from “The Politics of Deference: Judicial Review and Democracy”, in M. Taggart, ed., The Province of Administrative Law (1997), 279, at page 286. Counsel for the Minister completed this Eugene c. Canada (MCI) Simon No¨el J. 97

argument with the Federal Court of Appeal’s decision in Sivakumar v. Canada (Minister of Employment & Immigration) (1993), [1994] 1 F.C. 433 (Fed. C.A.), which he relied on to contend that the Court of Appeal supplemented the trial Court’s reasons and the reasons of the decision- maker. However, counsel for the Minister called attention to the following passage from the Supreme Court of Canada’s decision in Khosa v. Canada (Minister of Citizenship & Immigration), 2009 SCC 12 (S.C.C.): Dunsmuir thus reinforces in the context of adjudicative tribunals the importance of reasons, which constitute the primary form of account- ability of the decision maker to the applicant, to the public and to a reviewing court. Although the Dunsmuir majority refers with ap- proval to the proposition that an appropriate degree of deference “requires of the courts ‘not submission but a respectful attention to the reasons offered or which could be offered in support of a decision’” (para. 48 (emphasis added)), I do not think the reference to reasons which “could be offered” (but were not) should be taken as diluting the importance of giving proper reasons for an administrative decision, as stated in Baker v. Canada (Minister of Citizenship and Immi- gration), [1999] 2 S.C.R. 817, at para. 43. 7 The Court appreciates this honest and transparent clarification. The Minister thus submitted that the applicant was deemed inadmissible because of his activities in the PNH and the CIMO. Other evidence and statistics concerning the alleged abuses of the PNH and the CIMO were also filed. The applicable tests from the case law concerning complicity in crimes against humanity were also applied to the applicant’s situation.

Analysis 8 In adopting the IRPA in 2001, Parliament placed greater emphasis on the security of Canada and its citizens (Suresh v. Canada (Minister of Citizenship & Immigration), 2002 SCC 1 (S.C.C.)). Besides the amend- ments to the IRPA, inadmissibility arrived hand in hand with the adoption of the Crimes Against Humanity and War Crimes Act. Parliament’s security concerns are clear, just as is the absence of an unqualified right for non-residents to enter and remain in Canada (Chiarelli v. Canada (Minister of Employment & Immigration), [1992] 1 S.C.R. 711 (S.C.C.)). It is also true that the issuing of a permanent resident visa is, to a certain extent, discretionary, and that the assessment of crimes against humanity is a question of fact (see, among others, Moreno v. Canada (Minister of Employment & Immigration) (1993), [1994] 1 F.C. 298 (Fed. C.A.); 98 IMMIGRATION LAW REPORTER 2 Imm. L.R. (4th)

Ogunfowora v. Canada (Minister of Citizenship & Immigration), 2007 FC 471 (F.C.)). 9 However, it goes without saying that a decision and its reasons must be supported adequately so that anyone reading it may deduce the key elements of the alleged conduct, and all the more so when the issue is a question as important as crimes against humanity. The lack of adequate reasons is an error of law reviewable by this Court (Sivakumar v. Canada (Minister of Employment & Immigration) (1993), [1994] 1 F.C. 433 (Fed. C.A.); Plaisir c. Canada (Ministre de la Citoyenneté & de l’Immigration), 2007 FC 264 (F.C.)). 10 Obviously, since these are administrative decisions, the standard is not whether the decision was perfect. As Justice Hughes recently stated, a decision-maker is not held “to a standard of clarity and legal analysis that would impress even the most critical reader” (Warainch v. Canada (Minister of Citizenship & Immigration), 2011 FC 55 (F.C.)). 11 In this case, upon reading the letter and the CAIPS notes, it is not possible to discern that the decision-maker had a real understanding of the legal framework applicable to crimes against humanity. First, the brevity of the May 18 letter should be emphasized. An applicant can val- idly be excluded for involvement in genocide, a war crime or a crime against humanity. However, the letter must specify which of the three categories applies. Reciting the legal definitions of the three categories, without specifying which one applies, is not enough. 12 The CAIPS notes provide an understanding of the decision-maker’s concerns about the employments in the PNH and the CIMO and as bodyguard of the Minister of the Interior. However, the letter states that only the years 1996 to 1999 in the CIMO are held against the applicant, so the decision concerns only the alleged conduct of the CIMO, a special unit that provides crowd control during demonstrations. Genocide and war crimes must be excluded from the analysis outright, since there is no recognition that a war or genocide happened in those years. When such an inference is drawn at this stage, it is a sign that the reasons for a decision are weak. 13 The Canadian legal framework on war crimes has been made clear by a number of courts, including the Supreme Court and the Federal Court of Appeal. In Mugesera c. Canada (Ministre de la Citoyenneté & de l’Immigration), 2005 SCC 40 (S.C.C.), the Supreme Court stated that for there to be a war crime, there must first be the elements of a crime: (1) a Eugene c. Canada (MCI) Simon Noël J. 99

criminal act; and (2) a guilty mind (paragraph 127). Second, the criminal act alleged must (1) be one of the enumerated proscribed acts in the Criminal Code; (2) the act must be done as part of a widespread or sys- tematic attack; and (3) the attack must be directed against any civilian population or any identifiable group (paragraph 128). The decision, con- veyed by the letter and the CAIPS notes, does not identify any of these elements. With some zeal, it would be possible to infer those elements from the decision, but that is not the problem, for the applicant’s complicity is also at issue. 14 The decision is devoid of any analysis of the legal framework applicable to complicity in the crimes against humanity alleged. First of all, the Court is concerned that the applicant’s guilt would seem to result solely from his association with the CIMO. Mere membership in an organization which from time to time commits international offences is not normally adequate justification for inadmissibility (Ramirez v. Canada (Minister of Employment & Immigration), [1992] 2 F.C. 306 (Fed. C.A)), unless this organization owes its very existence to a limited, brutal purpose (Saridag v. Canada (Minister of Employment & Immigration) (1994), 85 F.T.R. 307 (Fed. T.D.)). Many factors have been identified in the case law, particularly in Ramirez, above, and Sivakumar, above. For example, the Court notes the following: a. The individual’s personal and knowing participation in or tol- eration of the crimes; b. Importance of the individual’s functions, both the duties themselves and the individual’s position in the hierarchy of the organization; c. The individual’s opposition to the conduct, or the individual’s attempts to prevent them or to leave the organization; d. Shared common purpose of the organization; and e. Length of participation in the group. 15 Furthermore, the burden of proof for establishing inadmissibility under section 33 of the IRPA is “reasonable grounds to believe”. As explained by the Federal Court of Appeal, this requires more than mere suspicion or conjecture, but less than proof on a balance of probabilities (Sivakumar, above). In this case, the Court is not satisfied from reading the reasons that this standard of proof has been met. 100 IMMIGRATION LAW REPORTER 2 Imm. L.R. (4th)

16 Consequently, the decision is flawed because of inadequate reasons. The application for judicial review is allowed. No question has been proposed for certification.

Judgment THIS COURT’S JUDGMENT IS that the application for judicial review is allowed. The application for a permanent resident visa is referred back for reconsideration by a different immigration officer. No question is certified. Application granted. Hogjeh v. Canada (MCI) 101

[Indexed as: Hogjeh v. Canada (Minister of Citizenship & Immigration)] Samir Nur Hogjeh, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-6550-10 2011 FC 665 James W. O’Reilly J. Heard: May 31, 2011 Judgment: June 9, 2011 Immigration and citizenship –––– Refugee protection — Elements of pro- tected refugee status — Nationality or former habitual residence — Claim- ant having more than one nationality –––– Applicant refugee candidate claimed to have been born in Somalia in 1989 but lived in Ethiopia as child — Candidate’s parents were born in Ethiopia — Candidate faced persecution and violence both as child in Ethiopia and in Somalia after moving there in 2003 — Candidate arrived in Canada in 2008 and claimed refugee protection — Candi- date’s application was dismissed by tribunal who found that candidate was citizen of Ethiopia and could safely return there — Candidate applied for judicial review of tribunal decision — Application granted — Board relied on parents’ birth in Ethiopia to find that candidate was citizen of Ethiopia — Board did not take into account candidate having been born in Somalia despite testimony and fact that father was of Somali origin, which was further basis for citizenship — Board also failed to take into account that candidate would have difficulty acquiring Ethiopian citizenship — Board’s decision was unreasonable and was overturned. Cases considered by James W. O’Reilly J.: Roncagliolo c. Canada (Ministre de la Citoyennet´e & de l’Immigration) (2005), 2005 CF 1024, 2005 CarswellNat 2062, 2005 CarswellNat 5830, 2006 FC 1024 (F.C.) — referred to Sahal v. Canada (Minister of Citizenship & Immigration) (1999), 166 F.T.R. 149, 1999 CarswellNat 634, [1999] F.C.J. No. 554 (Fed. T.D.) — referred to 102 IMMIGRATION LAW REPORTER 2 Imm. L.R. (4th)

Statutes considered: Citizenship Act, 2002 Generally — considered

APPLICATION by refugee candidate for judicial review of decision denying refugee application on basis of citizenship.

Ronald Shacter, for Applicant Leila Jawando, for Respondent

James W. O’Reilly J.: I. Overview 1 Mr. Samir Nur Hogjeh claims he was born in Somalia in 1989. His parents lived in the Ogaden region of Ethiopia, but fled to Somalia in the late 1970s or early 1980s to avoid persecution. The family returned to Ethiopia in 1992 to escape the civil war in Somalia. In 2001, the Ethio- pian army targeted the family, believing them to be members of the Ogaden National Liberation Front [ONLF]. Mr. Hogjeh claims the army beat him, his father and brothers, and shot his grandfather. 2 In 2003, Mr. Hogjeh, then just 14, returned to Mogadishu, Somalia to attend high school. The family followed a few years later. While there, Mr. Hogjeh claims that the Al Shabaab Islamist militia threatened him after he refused to join it. He considered going back to Ethiopia, but continued to fear the Ethiopian army. In 2007, he fled Somalia to Kenya, then Uganda, then back to Kenya. He arrived in Canada in November 2008 and claimed refugee protection. 3 A panel of the Immigration and Refugee Board denied Mr. Hogjeh’s claim after concluding that he was a citizen of Ethiopia and could safely return there. Mr. Hogjeh contends that the Board erred in its finding regarding his citizenship. He asks me to overturn its decision and order a new hearing. I agree that the Board erred and, therefore, will allow this application for judicial review. 4 While Mr. Hogjeh raised a number of issues, the main question relates to the Board’s treatment of the issue of citizenship. As I agree that the Board erred on that point, it is unnecessary to deal with the remaining questions. The sole issue, therefore is: 5 Issue One — Was the Board’s conclusion that Mr. Hogjeh was a citizen of Ethiopia unreasonable? Hogjeh v. Canada (MCI) James W. O’Reilly J. 103

II. The Board’s Decision 6 Mr. Hogjeh maintained before the Board that he was born in Somalia and was, therefore, a Somali citizen. The Board made no negative credibility findings against him. Mr. Hogjeh also presented a Somali birth certificate that had been issued in 2003. 7 However, the Board concluded that Mr. Hogjeh was a citizen of Ethi- opia and assessed his refugee claim as against Ethiopia, not Somalia. The Board noted that it was impossible to obtain official documents in Somalia given the absence of a functioning government there. Therefore, it placed little weight on Mr. Hogjeh’s birth certificate. Further, the Board noted that, while Mr. Hogjeh had relatives in Toronto, none appeared as witnesses on his behalf or supplied corroborating affidavits about his nationality. 8 On the other hand, given that Mr. Hogjeh’s parents had been born in Ethiopia, the Board found that he was entitled to Ethiopian citizenship, according to the Ethiopian Constitution (Article 6). Based on the documentary evidence, the Board concluded that Mr. Hogjeh’s fear of persecution in Ethiopia was not well-founded. 9 Issue Two — Was the Board’s conclusion that Mr. Hogjeh was a citizen of Ethiopia unreasonable? 10 The Board simply relied on the Ethiopian Constitution to find that Mr. Hogjeh is a citizen of Ethiopia. Article 6 provides that a person is a citizen of Ethiopia if one or both parents were born there. 11 While Mr. Hogjeh conceded that his parents were born in Ethiopia, he testified that it would be difficult to prove it. They were born in the de- sert, not in a hospital, and had no supporting documentation. 12 At the same time, the Board discounted the possibility that Mr. Hogjeh was a citizen of Somalia, based on a lack of corroborating evidence. However, he testified that he was born there and the Board had no concerns about his credibility on this point. According to the Somali Citi- zenship Act, a person is a citizen if he or she was born in Somalia or if his father is Somali. A person is considered Somali by virtue of Somali origin, tradition or language. By this definition, being from the Ogaden region of Ethiopia where Somali is spoken, Mr. Hogjeh’s parents are Somali. 13 In my view, the Board failed to consider whether the possibility that Mr. Hogjeh could acquire Ethiopian citizenship was realistic in the circumstances. There was no evidence to suggest that Mr. Hogjeh could 104 IMMIGRATION LAW REPORTER 2 Imm. L.R. (4th)

“readily acquire” citizenship in Ethiopia (See Roncagliolo c. Canada (Ministre de la Citoyennet´e & de l’Immigration), 2005 CF 1024 (F.C.) at para 19) or could do so with “due diligence” (Sahal v. Canada (Minister of Citizenship & Immigration) (1999), 166 F.T.R. 149, 88 A.C.W.S. (3d) 183 (Fed. T.D.) at para 11). The Board also failed to analyze adequately Mr. Hogjeh’s apparent entitlement to Somali citizenship, notwithstand- ing the lack of corroborating evidence. Accordingly, I find that the Board’s decision was unreasonable.

III. Conclusion and Disposition 14 Based on the evidence before it, the Board’s decision that Mr. Hogjeh was a citizen of Ethiopia and not Somalia was unreasonable. Accord- ingly, I must allow this application for judicial review. Neither party proposed a question of general importance for me to certify, and none is stated.

Judgment THIS COURT’S JUDGMENT is that 1. The application for judicial review is allowed. The matter is referred back to the Board for a new hearing before a different panel; 2. No question of general importance is stated. Application granted. Mangru v. Canada (MCI) 105

[Indexed as: Mangru v. Canada (Minister of Citizenship & Immigration)] Mansur Mangru, Carleen Nadira Hernandez, Nicholas Mangru, Applicants and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-6626-10 2011 FC 779 John A. O’Keefe J. Heard: June 1, 2011 Judgment: June 27, 2011 Immigration and citizenship –––– Refugee protection — Practice and procedure in refugee claims — Post-determination options — Humanitarian and compassionate review –––– Applicant family arrived in Canada from Guyana in 1999 and claimed refugee protection in 2001 — Family was of Indian descent and feared ethnically motivated violence in Guyana from people of African descent — Family’s refugee application was dismissed — Family made application to stay in Canada as permanent residents on humanitarian and compassionate grounds — Officer found that risk of violence against family did not warrant H and C intervention, as Guyanese government had made crime top priority — Although family had become established in Canadian community, removal from community would not cause undue or disproportionate hardship for family according to officer — Children would be able to adjust to life in Guyana with help of family and community in officer’s view — Family applied for judicial review of officer’s decision — Application granted — Officer did not properly assess best interests of children in reaching decision, as she applied improper standard — Fact that children would suffer hardship was factor in favour of H and C application even if this was not what would be considered undue hardship for adults — Children’s interests were not properly weighed against other factors and this allowed H and C application to be valid — Remaining factors did not need to be taken into account — Matter was referred back to new officer for redetermination. Cases considered by John A. O’Keefe J.: Arulraj v. Canada (Minister of Citizenship & Immigration) (2006), 2006 Car- swellNat 1106, 2006 FC 529, 2006 CarswellNat 3740, 2006 CF 529, [2006] F.C.J. No. 672 (F.C.) — considered 106 IMMIGRATION LAW REPORTER 2 Imm. L.R. (4th)

Hawthorne v. Canada (Minister of Citizenship & Immigration) (2002), 2002 CarswellNat 3444, 2002 FCA 475, 222 D.L.R. (4th) 265, [2003] 2 F.C. 555, 24 Imm. L.R. (3d) 34, 235 F.T.R. 158 (note), 2002 CarswellNat 4276, 297 N.R. 187, 2002 CAF 475, [2002] F.C.J. No. 1687 (Fed. C.A.) — considered Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 25(1) — considered s. 72(1) — pursuant to

APPLICATION for judicial review of refugee board decision to refuse applicant family entrance to Canada on humanitarian and compassionate grounds.

Krassina Kostadinov, for Applicants Jane Stewart, for Respondents

John A. O’Keefe J.:

1 This is an application pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 (the Act), for judicial review of a decision of a pre-removal risk assessment officer (the officer), dated October 13, 2010, wherein the officer refused the applicants’ application under subsection 25(1) of the Act to have their application for permanent residence processed from within Canada on humanitarian and compassionate (H&C) grounds. 2 The applicants request that the decision be set aside and the claim remitted for redetermination by a different officer.

Background 3 Mansur Mangru (the principal applicant) and his wife, Carleen Nadira Hernandez, are citizens of Guyana of Indo-Guyanese ethnicity who arrived in Canada in 1999 and claimed refugee protection in 2001. 4 The applicants were accompanied by their one year old son at the time. They have since had another son and daughter in Canada. 5 The applicants’ refugee claims were denied in 2003. They submitted an application for permanent residence on H&C grounds in March 2005.

Officer’s Decision 6 The officer declined to exercise her discretion under subsection 25(1) of the Act for the following reasons. Mangru v. Canada (MCI) John A. O’Keefe J. 107

7 The officer noted that the applicants fear ethnic violence in Guyana and that the principal applicant had been threatened in Guyana by Afro- Guyanese men. The officer also acknowledged the beating of the female applicant’s step-brother and the murder of her father. The officer considered the documentary evidence on crime and violence in Guyana and found that while crime remains an issue, the government has declared crime a top priority and taken measures towards improvement. The officer concluded that the applicants would not face unusual, undeserved or disproportionate hardship. 8 The officer then assessed the applicants’ level of establishment and integration into the community. She favourably considered the applicants’ employment history as well as their community involvement, vol- unteer work at their church and their charitable contributions. Further, the officer favourably noted that the applicants had housed a relative suf- fering from developmental issues. The officer noted the applicants’ good civil record and acknowledged letters of support from friends, family and community members. The officer recognized that the applicants pur- chased a home but found that they did so while under a removal order. The officer found that the applicants’ prolonged stay in Canada of over ten years has been within their control and she concluded that the requirement to sell their home and sever ties to the community did not amount to unusual, undeserved or disproportionate hardship. 9 The officer also assessed the best interests of the children. She acknowledged that the applicants have three children, two of which are Ca- nadian citizens. The officer found that with respect to the Canadian born children, the applicants have an aunt and uncle and cousins in Canada and it would be the applicants’ decision whether the children remain in Canada or leave with their parents. The officer noted the older children’s school records and their desire to remain in Canada. The officer found that it would be a hardship for the children to start a new life in Guyana as they have little connection to that country. However, she found that the basic amenities would be provided for and the government is respon- sive to children’s rights and welfare. She also found that they have been exposed to Guyanese culture through their family and that they have a grandmother and aunts who can help with adjustment to life in Guyana. The officer concluded that relocating to Guyana would not have a negative impact on the children that would amount to unusual, undeserved or disproportionate hardship. 108 IMMIGRATION LAW REPORTER 2 Imm. L.R. (4th)

Issues 10 The parties agree that the standard of review for the findings of an officer deciding an H&C application involve determinations of mixed fact and law and are generally reviewed on the reasonableness standard. 11 The applicants submitted the following additional issues for consideration: 1. Did the officer err in law in her assessment of the best interests of the applicants’ children by relying on the so called “option” of the applicants to leave the children in Canada with their family members or leave Canada with the children and by applying the wrong standard? 2. Did the officer err in law in her assessment of the hardship the applicants would face if removed to Guyana? More specifically, is the decision inconsistent with the documentary evidence presented? 3. Did the officer err in law in her assessment of the establishment of the applicants? 4. Ought the decision be set aside due to the principle of comity given that there is no significant difference between this decision and the previous one that was set aside?

Applicants’ Written Submissions 12 The applicants argue that the officer erred in her assessment of the best interests of the applicants’ children because she failed to properly assess the impact that removal from Canada would have on these children and relied instead on the “option” to leave the children in Canada with their family members. They further submit that the officer erred in law in applying the unusual, undeserved and disproportionate hardship test while assessing the best interests of the children. 13 The applicants also contend that the officer erred in her assessment of the hardship they would face if removed to Guyana and that this assessment is not consistent with the documentary evidence regarding ethnic divisions and ethnic conflict in Guyana. They argue that the officer did not consider the issue of extortion or the potential for abduction of the children. 14 Further, the applicants submit that the officer failed to make a reasoned assessment regarding the applicants’ establishment. The officer Mangru v. Canada (MCI) John A. O’Keefe J. 109

did not balance the positive considerations of establishment. In addition, the applicants argue that their establishment was not completely within their control as found by the officer. Citizenship and Immigration Can- ada took more than five years to decide the H&C application and in that time, the applicants reasonably continued to establish themselves. 15 Finally, the applicants submit that the Court must give weight to the decision of Madam Justice Elizabeth Heneghan in the judicial review of the first H&C decision, as the second decision is so similar that it cannot be distinguished.

Respondent’s Written Submissions 16 The respondent emphasizes that the best interests of the children are not determinative of an H&C application and should be weighed against the other factors. The respondent argues that the officer in this case was alert, alive and sensitive to the interests of the children. The officer was aware that the children would be removed with their parents and she engaged in a detailed analysis of the effect on the children of returning to Guyana. This analysis included consideration of the protection of their right in Guyana and the situation of crime. The respondent also submits that although the officer used the words “unusual and undeserved or disproportionate hardship”, this does not demonstrate that she applied the wrong test since the substance of the analysis was correct. 17 The respondent argues that the officer reasonably assessed the degree of the applicants’ establishment in Canada. This included noting the applicants’ employment and the development of family and personal relationships. However, the officer reasonably found that these factors do not amount to undue, undeserved or disproportionate hardship not antici- pated by the Act. This is particularly true, according to the respondent, because the applicants’ establishment in Canada was a result of their prolonged stay which was completely within their control. 18 Further, the respondent submits that the officer’s conclusions on risk were reasonable. There was extensive evidence before the officer to allow her to conclude that despite the problem of crime in Guyana, the applicants would have recourse to the police and state. The documentary evidence did not show that Indo-Guyanese were disproportionately the victims of crime and the applicants did not show that the violence faced by their family members was ethnically motivated. It was open to the officer to conclude that the applicants would face only a generalized situation of crime. 110 IMMIGRATION LAW REPORTER 2 Imm. L.R. (4th)

19 Finally, the respondent submits that the first and second H&C decisions are in fact distinct and that this Court should independently consider the applications and render its own decision.

Analysis and Decision Issue 1 Did the officer err in law in her assessment of the best interests of the applicants’ children by relying on the so called “option” of the applicants to leave the children in Canada with their family members or leave Canada with the children and by applying the wrong standard? 20 I agree with the respondent that the second H&C decision is distin- guishable from the first and should be assessed separately. 21 That said, for the following reasons, I find that the officer’s assessment of the best interests of the children in the H&C decision before me was inadequate. 22 Primarily, the error in the officer’s decision is the application of the wrong test in both form and substance to the analysis of the best interests of the children. 23 The officer found that while the children would experience hardship in starting a new life in Guyana, this did not rise to the level of unusual and undeserved or disproportionate hardship. 24 However, the Federal Court of Appeal and this Court have held that it is an error in law to incorporate such a threshold in the analysis of the best interests of the children. Mr. Justice Robert Barnes held in Arulraj v. Canada (Minister of Citizenship & Immigration), 2006 FC 529 (F.C.) at paragraph 14 that: There is simply no legal basis for incorporating a burden of irreparable harm into the consideration of the best interests of the children. There is nothing in the applicable Guidelines (Inland Processing 5, H & C Applications (IP5 Guidelines)) to support such an approach, at least insofar as the interests of children are to be taken into account. The similar terms found in the IP5 Guidelines of ”unusual”, “undeserved” or “disproportionate” are used in the context of considering an applicant’s H & C interests in staying in Canada and not having to apply for landing from abroad. It is an error to incorporate such threshold standards into the exercise of that aspect of the H & C discretion which requires that the interests of the children be weighed. This point is made in Hawthorne v. Canada (Minister of Citizenship & Immigration) (2002), [2003] 2 F.C. 555, 2002 FCA 475 (Fed. Mangru v. Canada (MCI) John A. O’Keefe J. 111

C.A.) at para. 9 where Justice Robert D´ecary said “that the concept of ‘undeserved hardship’ is ill-suited when assessing the hardship on innocent children. Children will rarely, if ever, be deserving of any hardship”. 25 Further, it is clear that the officer not only described the test for analyzing the best interests of the children incorrectly, but, in fact, assessed their interests as such. 26 The officer did not provide a full assessment of the effect on the children of being removed from Canada to Guyana. Rather, she minimized the impact on the children indicating that the government protects the rights of children in Guyana and their basic needs would be met. 27 While the respondent is correct to note that the best interests of the children is one factor to be weighed against the others in assessing H&C considerations, this did not occur in the decision before me. As the Fed- eral Court of Appeal held in Hawthorne v. Canada (Minister of Citizenship & Immigration), 2002 FCA 475 (Fed. C.A.), in all but rare cases, the best interests of the children favour nonremoval. This factor is then weighed against the other factors such as public policy considerations. The officer’s application of the unusual, undeserved of disproportionate hardship threshold permeates her analysis of the best interests of the children and results in an inappropriate conclusion implying that the best interests of the children favour the removal of the applicants. This conclusion led to an omission of any weighing of the interests of the children against the other factors favouring removal. 28 The application of the wrong test in form and substance to the analysis of the best interests of the children was an incorrect and unreasonable exercise of the officer’s discretion. 29 I would therefore allow the application for judicial review and remit the matter to a different officer for redetermination. 30 Because of my finding on this issue, I need not deal with the remaining issues. 31 Neither party wished to submit a proposed serious question of general importance for my consideration for certification.

Judgment 32 IT IS ORDERED that the application for judicial review is allowed and the matter is referred to a different officer for redetermination. Application granted. 112 IMMIGRATION LAW REPORTER 2 Imm. L.R. (4th)

Annex Relevant Statutory Provisions Immigration and Refugee Protection Act, SC 2001, c 27 25. (1) The Minister must, on request of a foreign national in Canada who is inadmissible or who does not meet the requirements of this Act, and may, on request of a foreign national outside Canada, examine the circumstances concerning the foreign national and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligations of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to the foreign national, taking into account the best interests of a child directly affected. 25. (1) Le ministre doit, sur demande d’un etranger´ se trouvant au Canada qui est interdit de territoire ou qui ne se conforme pas a` la présente loi, et peut, sur demande d’un etranger´ se trouvant hors du Canada, etudier´ le cas de cet etranger;´ il peut lui octroyer le statut de résident permanent ou lever tout ou partie des critères et obligations applicables, s’il estime que des considérations d’ordre humanitaire relatives a` l’étranger le justifient, compte tenu de l’intérêt supérieur de l’enfant directement touché. Gonsalves v. Canada (MCI) 113

[Indexed as: Gonsalves v. Canada (Minister of Citizenship & Immigration)] Stanley Bernard Gonsalves, Paula Susan Gonsalues (a.k.a. Paula Susan Gonsalves), Brandon Josh Gonsalves, Tristan Mark Gonsalves, Tiffany Amanda Gonsalves and Krystal Marie Gonsalves, Applicants and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-3827-10 2011 FC 648 Russel W. Zinn J. Heard: May 25, 2011 Judgment: June 7, 2011 Immigration and citizenship –––– Refugee protection — Elements of pro- tected refugee status — Grounds — Race –––– Applicant family from Guyana encountered violence and discrimination in Guyana which they alleged was based on their Indian background — Family had difficulty obtaining police protection and feared for their safety — Family moved to Canada in 2006 and filed refugee protection claim — Initial claim was dismissed, as officer determined that adequate state protection existed for family — Family applied for judicial review of this decision — Application was allowed due to evidence of ongoing tension between Guyanese of African and Indian descent and lack of state resources to protect Indians — Application also allowed due to lack of consideration of treatment of children and failure to properly weigh threat of sexual violence against wife — Upon redetermination, refugee application was again rejected, as connection was not found between treatment of family on grounds for Convention refugee status — Economic factors were found to be more important than racial factors in violence and mistreatment of family — Threats against family did not reach level of risk to life needed for refugee status, according to officer — Family applied for judicial review of second decision — Application granted — Hearing was de novo and it was open to officer to find that application did not meet standards on Convention grounds, absent directions from first reviewing judge — Board did not properly consider possibility of racial motivation in violence, which only had to be contributing factor and not entire reason for violence — Evidence was clear as to existence of racially motivated violence and this ground established possibility of Convention refugee status. 114 IMMIGRATION LAW REPORTER 2 Imm. L.R. (4th)

Cases considered by Russel W. Zinn J.: Ali v. Canada (Minister of Citizenship & Immigration) (1996), 1996 Car- swellNat 1868, 119 F.T.R. 258, 36 Imm. L.R. (2d) 34, [1996] F.C.J. No. 1392 (Fed. T.D.) — considered Cessa Bulbarela v. Canada (Minister of Citizenship & Immigration) (2002), 2002 CarswellNat 1335, 2002 FCT 636, 2002 CFPI 636, 21 Imm. L.R. (3d) 49, 2002 CarswellNat 3492 (Fed. T.D.) — referred to 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, [2007] F.C.J. No. 822 (F.C.) — considered Vickram v. Canada (Minister of Citizenship & Immigration) (2007), 2007 FC 457, 2007 CarswellNat 1008, 2007 CF 457, 2007 CarswellNat 4113, [2007] F.C.J. No. 619, [2007] A.C.F. No. 619 (F.C.) — distinguished Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 97 — considered s. 97(1)(b) — considered s. 108 — considered s. 108(4) — considered

APPLICATION for judicial review of refugee board decision dismissing family’s application for refugee status.

Rocco Galati, for Applicants Brad Gotkin, for Respondent

Russel W. Zinn J.:

1 This is an application for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board that held that the applicants were neither Convention refugees nor persons in need of protection. For the reasons that follow, this application is allowed.

Background 2 The applicants are a family of Indo-Guyanese descent. They came to Canada on April 6, 2006 and filed a refugee claim on the grounds that they fear ethnically-motivated violence at the hands of Afro-Guyanese criminal gangs in Guyana, and are unable to obtain state protection. Gonsalves v. Canada (MCI) Russel W. Zinn J. 115

3 The applicants owned a mechanic shop in Guyana. In May 2006, five gun-wielding men of Afro-Guyanese descent confronted the husband, Stanley Bernard Gonsalves, as he closed his shop. These men forced their way into the applicants’ home and demanded money and jewellery. Dissatisfied with the money and jewellery the husband gave them, the men beat him, undressed, fondled, and attempted to rape his wife, and hit and threatened to kill their children. Before leaving, the men tied up the applicants, threatened to return, and fired several shots into the house. 4 The neighbours heard the applicants’ cries for help and called the police. The police did not come because they had no vehicle. After the gunmen left, the applicants’ neighbours brought them to the station where they made a police report and subsequently received medical attention for their injuries. The file shows that the police visited the applicants’ home the next day, questioned several people, took the applicants’ statements, and arrested and charged one individual. The husband testified at the hearing that he did not know the outcome of that arrest, and that he had never followed up with the police about it. 5 Prior to the home invasion, someone attempted to break into the applicants’ home but was prevented from doing so by wooden bars on the window. Other incidents suffered by the applicants included not being paid for repairs on the cars of Afro-Guyanese clients, being followed when making deposits at the bank, and being robbed by armed thieves at a grocery stall. The husband stated that during the grocery hold-up one Afro-Guyanese thief also urinated on an Indo-Guyanese woman. The wife testified that Afro-Guyanese men had threatened sexual assault against her and her daughters while at a school fair. The husband stated that the children were threatened and harassed at school by Afro- Guyanese students and teachers. The children were sometimes denied en- try to the classroom and were subjected to bullying and physical violence at school. 6 The children were removed from the school and enrolled in a Catho- lic school. One teacher at the new school was abusive toward the children and the parents complained to the principal. Following the complaint, this teacher became more aggressive toward the children, threatening to hurt them if they ever complained again. 7 The applicants’ first application for refugee protection was denied. The Board found that the claimants had failed to rebut the presumption of state protection. 116 IMMIGRATION LAW REPORTER 2 Imm. L.R. (4th)

8 The applicants applied for leave and judicial review. Justice Kelen allowed the application, finding that the country condition evidence demonstrated continuing tension between Afro- and Indo-Guyanese and the inability of the state authorities to protect the Indo-Guyanese due to an “acute lack of resources.” He found further: “[W]hile the Board cites the documentary evidence as providing an unbiased statement that adequate state protection is available to the applicants in Guyana, a review of that evidence raises serious questions as to the effectiveness of the protection available.” Since the evidence cited contradicted the Board’s conclusions, failing to address the contradiction was a reviewable error. 9 The Board’s failure to address the concerns raised about the treatment of the children and the threats of sexual assault against the female applicant was also found to be a reviewable error. 10 At the first judicial review hearing, the applicants requested the Court to direct the Board to find the applicants to be Convention refugees. Jus- tice Kelen declined this request and sent the case back for re-determination without issuing any specific directions. A similar request was made in this application and I too refuse to issue the direction sought. 11 Upon re-determination, the Board found that the claimants were not Convention refugees because there was no nexus between their fear and one of the Convention grounds. The Board acknowledged that the applicants were basing their claim on the ground of race. It held that opinions were divided over whether Indo-Guyanese were disproportionately affected by crime because of their perceived wealth or because of their race. The Board then found that while some criminal attacks against Indo-Guyanese may be racially motivated, the incidents alleged by the claimants were economically motivated. 12 Regarding the robberies and bank incident, the Board considered crime statistics in Guyana and concluded that the claimants were the targets of random criminality, and that their fear was based on a generalized risk to all Guyanese persons “regardless of ethnicity, gender, or race.” The Board further held that where a subcategory of the population faces an increased degree of a risk, the increase does not convert a general risk to a personalized risk. Regarding the attempted rape of the female applicant during the home invasion, the Board relied on Cessa Bulbarela v. Canada (Minister of Citizenship & Immigration), 2002 FCT 636 (Fed. T.D.), for the proposition that rape in the course of a crime does not establish nexus on the basis of gender. Gonsalves v. Canada (MCI) Russel W. Zinn J. 117

13 Regarding the threats against the female applicant and her daughters at the school fair the Board concluded that while gender-based, there was no evidence to suggest they were “anything but random” and that the harm caused was discrimination, not persecution. 14 Regarding the children, the Board found that the ill treatment of the children at the public and private schools appeared to be racially motivated in at least two instances. The Board noted that the female applicant testified she was unaware whether similarly situated children suffer similar discrimination and concluded that the incidents, while discriminatory, did not rise to the level of persecution. 15 The Board also found that the applicants were not persons in need of protection under s. 97(1)(b) of the Immigration and Refugee Protection Act, SC 2001, c. 27, noting that s. 97 does not extend to generalized risks, and that therefore the home invasion and bank incidents were excluded from s. 97 consideration. The Board also found that the threats at the school fair and discrimination against the children at school did not raise a serious possibility of risk to their lives. 16 Counsel submitted at the hearing that if the claimants were found not to be Convention refugees or persons in need of protection, the Board should consider whether there were compelling reasons to let the claimants remain in Canada under s. 108(4) of the Act, based on the trauma from the 2006 home invasion. The Board denied this request on the basis that there needed to be a change in circumstances to trigger s. 108 of the Act, and that the Board was without jurisdiction to consider compelling reasons regarding incidents found to be the result of a generalized risk.

Issues 17 The applicants raised a number of issues in their memorandum but abandoned some issues at the hearing. The remaining issues are the following: 1. Did the Board err by departing from the first judicial review decision quashing the previous determination? 2. Did the Board err in not finding the deprivation of the children’s right to education to be persecution? 3. Was the decision adequately reasoned with due regard to the evidence? 118 IMMIGRATION LAW REPORTER 2 Imm. L.R. (4th)

Analysis 18 I do not accept the applicants’ submission that by raising the issue of nexus as grounds for dismissing their claim, the Board “is doing an ‘end run’ around the judicial review order and reasons for the Federal Court remitting it for rehearing.” 19 The rehearing by the Board ordered by this Court is a hearing de novo and absent any directions from the Court in remitting the case, the Board is entitled to decide the case on the merits. In finding that the applicants’ claim failed on the basis of state protection, the first decision did not go on to consider the other elements of the refugee definition. Accordingly, the Federal Court’s reasons in reviewing the decision were also limited to state protection. However, the applicants still need to meet all the elements of the refugee definition in order for their claim to succeed and it was open to the Board to find, regardless of the availability of state protection, that the applicants’ claim failed to meet another aspect of the definition. 20 The Board did not defy the directions or contradict the reasons of Justice Kelen and therefore there is no violation of the right to judicial review and no abuse of process. There were no directions to defy. The Board did not make findings on state protection, and therefore did not contradict the reasons of the Court. 21 I also do not accept the submission of the applicants that the Board erred in finding that the incidents of discrimination the children faced at their schools did not rise to the level of persecution. The applicants rely on Ali v. Canada (Minister of Citizenship & Immigration), [1996] F.C.J. No. 1392 (Fed. T.D.), for the proposition that where the only way a child can avoid persecution is to cease attending school, asking the child to do so violates his or her right to an education and the child should therefore be found a refugee. The applicant submits that as in Ali, the only way the applicant children could avoid persecution was to cease attending school. 22 In order for leaving school to be determinative, the Board must first find that the ill treatment the child faces at school is persecution. Justice McKeown states in Ali, at para. 4: “I do not agree with [the Board’s] reasoning since it means if Hossay Ali is returned to Afghanistan, the only way she can avoid being persecuted is to refuse to go to school. [emphasis added]” In this case, the Board found that the ill treatment the children faced in school was discrimination, but not persecution. That finding was not unreasonable given the evidence before the Board. Gonsalves v. Canada (MCI) Russel W. Zinn J. 119

23 Lastly, the applicants submit that since the Board found them credible, found there to be ongoing racial tension in Guyana, and found that some criminal attacks were racially motivated, and since the applicants testified that the attacks against them were accompanied by racial slurs, the Board’s finding that the attacks were not racially motivated is unreasonable. 24 The applicants argue further that in failing to address the racial slurs alleged by the applicants, and in ignoring the documentary evidence con- firming the prevalence of racially motivated attacks in Guyana, the Board’s reasons are inadequate and a violation of procedural fairness. 25 The applicants therefore submit that the findings made by the Board regarding nexus were perverse and capricious, and made without evidence or in disregard of the evidence. 26 The respondent submits that the Board’s finding that attacks could be racially motivated does not mean the Board must find a nexus or Con- vention status. The respondent relies on Vickram v. Canada (Minister of Citizenship & Immigration), 2007 FC 457 (F.C.), for the proposition that where attacks might be racially motivated, but the claimant’s evidence indicates that wealth was the real motivation in their case, the Board’s finding that the claimant is not targeted on racial grounds is reasonable and “cannot be said to be perverse or made without regard to the evidence before it.” 27 The respondent does not address the racial slurs alleged by the applicants, but simply states that the Board did not fail to provide adequate reasons and did not fail to consider evidence in arriving at its conclusions. The respondent alleges that the applicants are asking the Court to reweigh the evidence, and says that the Board’s findings were reasonably open to it on consideration of all the evidence. 28 The Board’s nexus analysis is inadequate. In finding that the home invasion and bank incidents were economically and not racially motivated, the Board quotes from the United States Department of State (DOS) Report for the proposition that while ethnic tensions persist in Guyana, the under-representation of Indo-Guyanese in the civil service and security forces was likely due to the Indo-Guyanese preferring business careers over the military. The Board also cites two Federal Court decisions as authority for the finding that opinions are divided over whether Indo-Guyanese are disproportionately targeted by criminals be- 120 IMMIGRATION LAW REPORTER 2 Imm. L.R. (4th)

cause of their economic or racial status and then prefers the explanation of economic affluence. 29 The Board’s conclusion is unreasonable because it approaches the issue of motive for the attacks as a yes or no question. The criminals targeting the applicants may have been motivated by a combination of the applicants’ racial and economic status. That the motive is at least not purely economic is supported by the applicants’ reference to racial slurs made against them during the incidents they allege. It is further supported by other evidence, namely the testimony given by the applicants. In Katwaru (Litigation Guardian of) v. Canada (Minister of Citizenship & Immigration), [2007] F.C.J. No. 822 (F.C.), this Court left open the possibility that where at least one of the motives is based on a convention ground, nexus might be established. The Court there decided there was not enough evidence to establish race as a motive, and therefore declined to find mixed motives. However, the Court left open the possibility that nexus may be found where there is evidence to support both alleged motives. In this case there was some evidence before the Board as to the possibility of mixed motives and therefore the Board erred in failing to consider whether there were mixed motives and if so, whether the motives could constitute the convention nexus required. 30 Vickram is unlike the present case. In Vickram, the applicant repeatedly indicated that he believed he was targeted because of his wealth. He only once hinted that he might also be targeted because of his race, and he did not expand on or provide evidence to support that argument. Based on these facts, Justice de Montigny found that “The Board was therefore entitled to find, based on the documentary evidence and on Mr. Vickram’s own testimony, that he was the victim of criminal acts with no link to the Convention.” However, as previously noted, in this case the applicants repeatedly asserted that they were being targeted for their race and provided documentary and verbal evidence of racial violence in Guyana. 31 For these reasons this application must be allowed. No question for certification was proposed and there is none on these facts.

Judgment THIS COURT’S JUDGMENT is that the application for judicial review is allowed and the applicants’ claim for refugee protection is to be Gonsalves v. Canada (MCI) Russel W. Zinn J. 121 re-determined by a different Member of the Board who has had no previous involvement in their claims, and no question is certified. Application granted. 122 IMMIGRATION LAW REPORTER 2 Imm. L.R. (4th)

[Indexed as: El Romhaine c. Canada (Ministre de la Citoyenneté & de l’Immigration)] Fahime El Romhaine, demanderesse et Le Ministre de la Citoyenneté et de l’Immigration, défenderesse Cour fédérale Docket: IMM-6111-10 2011 CF 534 Michel M.J. Shore J. Heard: 9 mai 2011 Judgment: 12 mai 2011 Immigration and citizenship –––– Refugee protection — Practice and procedure in refugee claims — Judicial review — Miscellaneous issues –––– Claimant was citizen of Lebanon — Claimant was elderly, illiterate and alleged domestic abuse at hands of son with whom she was living — Claimant claimed asylum during visit to daughter in Canada — Refugee Protection Division (RPD) found that claimant was not credible and denied claim — Claimant applied for judicial review of decision — Application granted — Matter remitted to different panel for re-determination — RPD did not reasonably assess claimant’s evidence — Personal Information Form detailed treatment claimant received at home but was not referred to in conclusion — RPD should have reviewed documentary evidence dealing with violence against women in Lebanon, particularly elderly — RPD had to take into account that female claimant was vulnerable person, and subject to domestic violence — Conclusion that claimant could have moved in with any of her four other children in Lebanon went against claimant’s testimony — RPD erred in finding that claimant did not seriously risk persecution in Lebanon and that she had other options — RPD’s decision solely relied on claimant and daughter’s testimony — Failure of RPD to mention substantial piece of evidence in decision inferred omission — Decision was unreasonable under circumstances. Cases considered by Michel M.J. Shore J.: Aguebor v. Canada (Minister of Employment & Immigration) (1993), 1993 Car- swellNat 303, (sub nom. Aguebor v. Ministre de l’Emploi & de l’Immigration) 160 N.R. 315, [1993] F.C.J. No. 732 (Fed. C.A.) — followed 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.) — considered El Romhaine c. Canada (MCI) 123

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.) — followed El Hage c. Canada (Ministre de la Citoyenneté & de l’Immigration) (2008), 2008 FC 1177, 2008 CarswellNat 4658, 77 Imm. L.R. (3d) 291, 2008 Car- swellNat 3781, 2008 CF 1177, [2008] F.C.J. No. 1459 (F.C.) — considered Ihaddadene v. Canada (Minister of Employment & Immigration) (1993), 1993 CarswellNat 2208, [1993] F.C.J. No. 756 (Fed. C.A.) — considered Ndikumana v. Canada (Minister of Citizenship & Immigration) (2006), 2006 CarswellNat 2701, 2006 CarswellNat 6168, 299 F.T.R. 124 (Eng.), 2006 CF 1056, 2006 FC 1056, 55 Imm. L.R. (3d) 288 (F.C.) — considered New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1, 69 Admin. L.R. (4th) 1, 69 Imm. L.R. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) [2008] 1 S.C.R. 190, 844 A.P.R. 1, (sub nom. Dunsmuir v. New Brunswick) 2008 C.L.L.C. 220-020, D.T.E. 2008T-223, 329 N.B.R. (2d) 1, (sub nom. Dunsmuir v. New Brunswick) 170 L.A.C. (4th) 1, (sub nom. Dunsmuir v. New Brunswick) 291 D.L.R. (4th) 577, 2008 CarswellNB 124, 2008 CarswellNB 125, 2008 SCC 9, 64 C.C.E.L. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) 95 L.C.R. 65, [2008] S.C.J. No. 9, [2008] A.C.S. No. 9 (S.C.C.) — followed R. v. Lavallee (1990), [1990] 4 W.W.R. 1, 67 Man. R. (2d) 1, [1990] 1 S.C.R. 852, 108 N.R. 321, 76 C.R. (3d) 329, 55 C.C.C. (3d) 97, 1990 CarswellMan 198, 1990 CarswellMan 377, 132 W.A.C. 243, EYB 1990-67181, [1990] S.C.J. No. 36 (S.C.C.) — followed Rajudeen v. Canada (Minister of Employment & Immigration) (1984), 55 N.R. 129, 1984 CarswellNat 675, [1984] F.C.J. No. 601, [1984] A.C.F. No. 601 (Fed. C.A.) — considered Rezk c. Canada (Ministre de la Citoyenneté & de l’Immigration) (2005), 2005 CF 151, 2005 CarswellNat 315, 2005 CarswellNat 5648, 2005 FC 151, [2005] F.C.J. No. 221 (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.) — followed Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Generally — referred to s. 72(1) — pursuant to s. 96 “réfugié” — considered s. 97 — considered 124 IMMIGRATION LAW REPORTER 2 Imm. L.R. (4th)

s. 159(1)(h) — considered Treaties considered: Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, 1984, C.T.S. 1987/36; 23 I.L.M. 1027; 1465 U.N.T.S. 85; U.N. Doc. A/39/51 Generally — referred to Convention on the Elimination of All Forms of Discrimination against Women, 1981, C.T.S. 1982/31; 19 I.L.M. 33 Generally — referred to Declaration on the Elimination of Violence Against Women, 1994, 33 I.L.M. 1049 Generally — referred to International Covenant on Civil and Political Rights, 1966, C.T.S. 1976/47; 999 U.N.T.S. 171; 6 I.L.M. 368 Generally — referred to International Covenant on Economic, Social and Cultural Rights, 1966, C.T.S. 1976/46; 993 U.N.T.S. 3 Generally — referred to Universal Declaration of Human Rights, 1948, G.A. Res. 217(III)A Generally — referred to

APPLICATION by claimant for judicial review of Refugee Protection Divi- sion’s decision that claimant was not refugee or person in need of protection.

Anthony Karkar, pour demanderesse Suzon L´etourneau, pour d´efendeur

Michel M.J. Shore J.: I. Introduction 1 Le a demande de contrôle judiciaire porte sur la demande d’une personne ag´ˆ ee, citoyenne du Liban, analphabète et vivant avec son fils abusif envers elle depuis plusieurs années. Les personnes ag´ˆ ees peuvent etreˆ considérées comme des personnes vulnérables au sens des Directives sur les procédures concernant les personnes vulnérables qui comparaissent devant la CISR (le 15 décembre 2006), données par le président de la Commission de l’immigration et du statut de réfugié (CISR) en application de l’alinéa 159(1)h) de la Loi sur l’immigration et la protection des réfugiés, LC 2001, c 27 (LIPR) (Directives no 8). Ces Directives El Romhaine c. Canada (MCI) Michel M.J. Shore J. 125

permettent d’adopter des adaptations a` des fins procédurales, notamment pour des personnes ag´ˆ ees: 2.1 Pour l’application des présentes directives, une personne vulnéra- ble s’entend de la personne dont la capacité de présenter son cas devant la CISR est grandement diminuée. Elle peut, entre autres, etreˆ atteinte d’une maladie mentale; etreˆ mineure ou ag´ˆ ee; avoir et´´ e victime de torture; avoir survécu a` un génocide et a` des crimes contre l’humanité; il peut aussi s’agir d’une femme qui a et´´ e victime de per- sécution en raison de son sexe. (La Cour souligne). 2 La demanderesse n’est pas seulement une personne vulnérable, mais egalement´ une femme qui fait l’objet de violence familiale. Selon les Di- rectives no 4 — Revendicatrices du statut de réfugié craignant d’être persécutées en raison de leur sexe, entrée en vigueur le 13 novembre 1996 (Directives no 4), lorsque la Section de la protection des réfugiés (SPR) evalue´ le préjudice causée afin de déterminer s’il s’agit d’une forme de persécution, elle doit tenir compte d’un certain nombre d’éléments: B. EVALUATION´ DU PREJUDICE´ REDOUTE´ [...] Les circonstances qui font naˆıtre chez les femmes une crainte de per- sécution sont souvent uniques aux femmes [...] [...] C. QUESTIONS RELATIVES A` LA PREUVE Pour que l’allégation de crainte de persécution d’une femme du fait de son sexe soit fondée, la preuve doit etablir´ que la revendicatrice craint véritablement d’être persécutée pour un motif de la Conven- tion et non qu’elle fait l’objet d’une forme de violence généralisée ou qu’elle a et´´ e la cible d’un seul crime perpétré contre elle comme personne. Bien entendu, pour déterminer si c’est le cas, il faut examiner avant tout les circonstances de la revendicatrice tant en ce qui a trait a` la reconnaissance générale des droits de la personne dans son pays d’origine qu’aux expériences vécues par d’autres femmes se trouvant dans une situation similaire [...] 3 Dans le cas présent, la décision de la SPR n’a pas présenté une analyse complète des el´´ ements pertinents de la preuve. La demande sera donc accueillie: Le tribunal spécialisé doit faire etat´ de toute la panoplie des el´´ ements concernés, (la myriade de références et de définitions des mots, ainsi 126 IMMIGRATION LAW REPORTER 2 Imm. L.R. (4th)

que la galerie de portraits) qui souvent sont contradictoires, et il doit les prendre en compte. Il doit a` tout le moins dire brièvement pourquoi il privilégie un ensemble de faits et d’interprétations plutôt qu’un autre. Ce n’est qu’alors qu’une décision correctement enonc´´ ee peut etreˆ rendue relativement a` un demandeur d’asile en particulier. (Ndikumana v. Canada (Minister of Citizenship & Immigration) (2006), 2006 CF 1056, 299 F.T.R. 124 (Eng.) (F.C.) au para 1).

II. Procédure judiciaire 4 Il s’agit d’une demande de contrôle judiciaire en vertu du paragraphe 72(1) de la LIPR, a` l’encontre d’une décision de la SPR de la CISR, rendue le 24 septembre 2010, selon laquelle la demanderesse n’a pas la qualité de réfugiée au sens de la Convention tel que défini a` l’article 96 de la LIPR ni la qualité de personne a` protéger selon l’article 97 de la LIPR.

III. Faits 5 La demanderesse, madame Fahime El Romhaine, est née le 30 décembre 1943 et est citoyenne du Liban. 6 A` la mort de son mari en 1989, madame Romhaine, aujourd’hui ag´ˆ ee de 67 ans et analphabète, serait demeurée dans l’appartement qu’elle oc- cupait depuis toujours, avec son fils aˆıné, Michel, le seul de ses huit enfants qui habitait encore a` la maison. 7 Madame Romhaine allègue avoir et´´ e forcée de vivre avec son fils. Ce dernier, qui agissait correctement a` son endroit au début de leur cohabitation, aurait petit a` petit commencé a` la maltraiter. 8 Au début de 2008, la fille de madame Romhaine, Thérèse, qui habite au Canada, l’a invitée au mariage de sa petite-fille et a défrayé les coûts de sa venue au Canada. Madame Romhaine a obtenu un visa de visiteur et est arrivée au Canada le 11 mars 2008. 9 Selon le témoignage de sa fille, Thérèse, lorsque, quelques mois plus tard, serait venu le temps pour la demanderesse de retourner au Liban, sa mère se serait mise a` pleurer. Elle a alors révélé que Michel etait´ abusif envers elle. 10 La demanderesse a demandé l’asile au Canada en juillet 2008, soit quatre mois après etreˆ arrivée au Canada. El Romhaine c. Canada (MCI) Michel M.J. Shore J. 127

IV. Décision faisant l’objet de la demande 11 La SPR est venue a` la conclusion que la demanderesse n’est pas une réfugiée au sens de la Convention ni une personne a` protéger. Bien qu’elle ait jugé qu’il s’agisse d’une situation familiale désolante et qu’elle mentionne la situation de vulnérabilité de la demanderesse, la demande d’asile a et´´ e rejetée. 12 La SPR se dit avoir et´´ e prête a` reconnaˆıtre que la demanderesse, en tant que femme ag´ˆ ee, analphabète et veuve, puisse appartenir a` un groupe social particulier au sens de l’article 96 de la LIPR. Elle etait´ toutefois d’avis que la demanderesse n’a pas démontré l’existence d’une possibilité sérieuse qu’elle soit persécutée en vertu d’un des motifs de la Convention si elle devait retourner au Liban. 13 Selon la SPR, la demanderesse n’a pas démontré qu’elle ne serait pas en mesure de trouver une solution de rechange pour continuer d’habiter au Liban. Le fait que ses six autres enfants aient leur vie et leur famille a` eux, ou qu’il ait pu y avoir certains conflits familiaux, ne serait pas suf- fisant en soi pour démontrer qu’il n’existe pas de possibilité de réconcili- ation ou de prise en charge de la demanderesse par ses autres enfants. La demanderesse n’aurait donc pas démontré qu’elle ne serait pas en mesure de convenir d’un arrangement pour obtenir du soutien ou qu’elle serait effectivement victime de persécution si elle devait vivre seule au Liban. 14 La SPR a jugé qu’il n’était pas possible de faire une analogie entre la situation des veuves au Liban et celle des veuves en Inde. Pour la SPR, les difficultés dont a souffert la demanderesse n’équivalent pas a` de la persécution.

V. Questions en litige 15 (1) La SPR a-t-elle commis une erreur en omettant d’analyser l’ensemble de la preuve au dossier ou en omettant ou néglige- ant de préciser les raisons de son refus lorsqu’elle a conclu que la demanderesse n’avait pas de crainte fondée de persécution? (2) La SPR a-t-elle appliqué dans sa décision les Directives no 4 sur les femmes craignant d’être persécutée en raison de leur sexe, et les Directives no 8 sur les personnes vulnérables? 128 IMMIGRATION LAW REPORTER 2 Imm. L.R. (4th)

VI. Dispositions l´egislatives pertinentes 16 Les dispositions suivantes de la LIPR sont pertinentes a` la pr´esente demande: Convention refugee 96. A Convention refugee is a person who, by reason of a well- founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion, (a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or (b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country. Person in need of protection 97. (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally (a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or (b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if (i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country, (ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country, (iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and (iv) the risk is not caused by the inability of that country to provide adequate health or medical care. (2) A person in Canada who is a member of a class of persons prescribed by the regulations as being in need of protection is also a person in need of protection. El Romhaine c. Canada (MCI) Michel M.J. Shore J. 129

Définition de « réfugié » 96. A qualité de réfugié au sens de la Convention — le réfugié—la personne qui, craignant avec raison d’être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance a` un groupe social ou de ses opinions politiques: a) soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de chacun de ces pays; b) soit, si elle n’a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner. Personne a` protéger 97. (1) A qualité de personne a` protéger la personne qui se trouve au Canada et serait personnellement, par son renvoi vers tout pays dont 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. (2) A egalement´ qualité de personne a` protéger la personne qui se trouve au Canada et fait partie d’une catégorie de personnes auxquelles est reconnu par règlement le besoin de protection. 130 IMMIGRATION LAW REPORTER 2 Imm. L.R. (4th)

17 De plus, en tant que personne ag´ˆ ee et analphabète, les Directives no 8 sont pertinentes a` la situation de la demanderesse: 2. Definition of Vulnerable Persons 2.1 For the purposes of this Guideline, vulnerable persons are individuals whose ability to present their cases before the IRB is severely impaired. Such persons may include, but would not be limited to, the mentally ill, minors, the elderly, victims of torture, survivors of genocide and crimes against humanity, and women who have suffered gender-related persecution. ... 2.3 Persons who appear before the IRB frequently find the process difficult for various reasons, including language and cultural barriers and because they may have suffered traumatic experiences which resulted in some degree of vulnerability. IRB proceedings have been designed to recognize the very nature of the IRB’s mandate, which inherently involves persons who may have some vulnerabilities. In all cases, the IRB takes steps to ensure the fairness of the proceedings. This Guideline addresses assurer difficulties which go beyond those that are common to most persons appearing before the IRB. It is intended to apply to individuals who face particular difficulty and who require special consideration in the procedural handling of their cases. It applies to the more severe cases of vulnerability. 2. Définition d’une personne vulnérable 2.1 Pour l’application des présentes directives, une personne vulnéra- ble s’entend de la personne dont la capacité de présenter son cas devant la CISR est grandement diminuée. Elle peut, entre autres, etreˆ atteinte d’une maladie mentale; etreˆ mineure ou ag´ˆ ee; avoir et´´ e victime de torture; avoir survécu a` un génocide et a` des crimes contre l’humanité; il peut aussi s’agir d’une femme qui a et´´ e victime de per- sécution en raison de son sexe. [...] 2.3 Les personnes qui comparaissent devant la CISR trouvent souvent le processus difficile pour diverses raisons, notamment a` cause des contraintes de langue et de culture et parce qu’elles ont peut-être vécu des expériences traumatisantes qui sont a` l’origine d’une certaine vulnérabilité. Les procédures de la CISR ont et´´ e con- cues¸ pour reconnaˆıtre la nature même du mandat de la CISR qui, de fa¸con inhérente, fait intervenir des personnes pouvant etreˆ vulnér- ables. Dans tous les cas, la CISR prend des mesures pour l’équité des procédures. Les présentes directives abordent des difficultés qui vont El Romhaine c. Canada (MCI) Michel M.J. Shore J. 131

au-delà de celles auxquelles se heurtent habituellement la plupart des personnes qui comparaissent devant la CISR. Elles visent les personnes qui eprouvent´ des difficultés particulières et qui doivent faire l’objet de considérations spéciales sur le plan procédural dans le traitement de leur cas. Elles s’appliquent aux cas de vulnérabilité les plus sévères. (La Cour souligne). 18 Quant aux Directives no 4, elles peuvent egalement´ s’appliquer a` la situation de la demanderesse, en tant que femme victime de violence. Ces Directives etablissent´ un cadre d’analyse qu’il est pertinent de reproduire ici, particulièrement pour ce qui est de la détermination d’une forme de persécution: FRAMEWORK OF ANALYSIS 1. Assess the harm feared by the claimant. Does the harm feared constitute persecution? (a) For the treatment to likely amount to persecution, it must be a serious form of harm which detracts from the claimant’s fundamental human rights. (b) To assist decision-makers in determining what kinds of treatment are considered persecution, an objective standard is provided by international human rights instruments. The following instruments, among others, may be considered: Universal Declaration of Human Rights, International Covenant on Civil and Politi- cal Rights International Covenant on Eco- nomic, Social and Cultural Right Conven- tion on the Elimination of All Forms of Discrimination Against Women Conven- tion on the Political Rights of Women, Convention on the Nationality of Married Women Convention Against Torture and other Cruel, Inhuman or Degrading Treat- ment or Punishment Declaration on the Elimination of Violence Against Women 2. Ascertain whether the claimant’s fear of persecution is based on any of the grounds, singly or in combination, 132 IMMIGRATION LAW REPORTER 2 Imm. L.R. (4th)

enumerated in the Convention refugee definition. Consid- erations: • It is necessary to ascertain the characteristic of the claimant which places her or members of her group at risk, and to ascertain the linkage of that characteristic to a Convention ground. • Gender is an innate characteristic and it may form a particular social group. • A subgroup of women may also form a particular social group. Women in these particular social groups have characteristics (possibly innate or unchangeable) additional to gender, which make them fear persecution. • The gender-defined group cannot be defined solely by the fact that its members share common persecution. 3. Determine whether the claimant’s fear of persecution is well-founded. This includes an assessment of the evidence related to the ability or willingness of the state to protect the claimant and, more generally, the objective basis of the claim. Considerations: • There may be little or no documentary evidence presented with respect to the inadequacy of state protection as it relates to gender-related persecution. There may be a need for greater reliance on evidence of similarly situated women and the claimant’s own experiences. • The claimant need not have approached non-state organizations for protection. • Factors including the social, cultural, religious, and economic context in which the claimant finds herself should be considered in determining whether it was objectively unreasonable for the claimant not to have sought state protection. • Where a woman’s fear relates to personal-status laws or where her human rights are being violated by private citizens, an otherwise positive change in country conditions may have no impact, or even a negative impact, on a woman’s fear of gender-related persecution. El Romhaine c. Canada (MCI) Michel M.J. Shore J. 133

4. If required, determine whether there is a possibility of an internal flight alternative. Considerations: • Whether there would be undue hardship for the claimant, both in reaching the location of the IFA and in establishing residence there. • Religious, economic, social and cultural factors, among others, may be relevant in determining the reasonableness of an IFA for a woman fearing gender- related persecution CADRE D’ANALYSE 1. Evaluez´ le préjudice redouté par la revendicatrice. S’agit- il d’une forme de persécution? a. Pour que le traitement equivaille´ vraisemblablement a` une forme de persécution, il doit s’agir d’un préjudice grave qui va a` l’encontre des droits fondamentaux de la revendicatrice. b. Pour déterminer si un traitement donné est considéré comme une forme de persécution, on peut se servir, comme norme objective, des textes internationaux sur les droits de la personne. Les décideurs peuvent tenir compte, entre autres, des textes suivants: la Déclaration universelle des droits de l’homme, le Pacte international relatif aux droits civils et politiques, le Pacte international relatif aux droits economiques,´ sociaux et culturels, la Convention sur l’élimination de toutes les formes de discrimination a` l’égard des femmes, la Con- vention sur les droits politiques de la femme, la Convention sur la nationalité de la femme mariée, la Convention contre la torture et autres peines ou traitements cruels, inhumains ou dégradants, la Décla- ration sur l’élimination de la violence contre les femmes. 2. Déterminez si la crainte de persécution de la revendicatrice est fondée sur l’un des motifs enum´´ erés dans la défi- 134 IMMIGRATION LAW REPORTER 2 Imm. L.R. (4th)

nition de réfugié au sens de la Convention ou sur une combinaison de ceux-ci: • il est nécessaire de déterminer les caractéristiques de la revendicatrice faisant qu’elle ou les membres de son groupe sont menacées, et d’établir les liens exis- tant entre ces caractéristiques et les motifs de la défi- nition de réfugié au sens de la Convention; • le sexe est une caractéristique innée et peut etreˆ un motif d’appartenance a` un groupe social; • un sous-groupe de femmes peut egalement´ constituer un groupe social. Les femmes faisant partie de ces groupes sociaux ont des caractéristiques (peut-être in- nées ou immuables), outre leur sexe, les faisant crain- dre d’être persécutées; • le groupe défini par le sexe ne peut uniquement etreˆ défini par le fait que les membres de ce groupe font tous l’objet d’une persécution semblable. 3. Déterminez si la crainte de persécution de larevendica- trice est fondée. A` cette fin, evaluez´ la preuve liée a` la capacité ou a` lavolonté de l’Etat´ de protéger la revendicatrice et, de fa¸con plus générale, le fondement objectif de la revendication: • il est possible qu’il y ait peu ou pas de preuve documentaire de l’incapacité de l’Etat´ d’assurer la protection contre la persécution fondée sur le sexe. Il sera peut-être nécessaire de s’en remettre davantage a` la preuve présentée par des femmes ayant vécu des situa- tions similaires et a` l’expérience passée de la revendicatrice; • il n’est pas nécessaire que la revendicatrice ait sollic- ité la protection d’organisations non gouvernementales; • pour evaluer´ s’il etait´ objectivement déraisonnable pour la revendicatrice de ne pas avoir sollicité la protection de l’Etat,´ il faut tenir compte, entre autres, du contexte social, culturel, religieux et economique´ dans lequel se trouve la revendicatrice; • si la crainte d’une femme est liée aux lois sur le statut personnel ou que ses droits fondamentaux sont violés par de simples citoyens, une amélioration dans la situ- El Romhaine c. Canada (MCI) Michel M.J. Shore J. 135

ation du pays pourrait n’avoir aucune incidence ou même avoir une incidence défavorable sur la crainte d’une femme d’être persécutée du fait de son sexe. 4. S’il y a lieu, déterminez s’il existe une possibilité de refuge intérieur (PRI): • tenir compte de la capacité de la revendicatrice de se rendre dans l’autre partie du pays qui offre une PRI et d’y rester sans difficultés excessives; • les facteurs religieux, economiques,´ sociaux et culturels, entre autres, peuvent servir a` evaluer´ le caractère raisonnable d’une PRI pour une femme qui craint d’être persécutée en raison de son sexe.

VII. Prétention des parties 19 La demanderesse soumet que la SPR aurait dû etreˆ sensible a` la situation critique de la demanderesse en raison de son age,ˆ des mauvais traitements subis et de l’incapacité des autorités libanaises a` protéger la demanderesse. La position de la demanderesse est a` l’effet que la SPR a erré en fait et en droit, que les motifs invoqués par la SPR sont déraison- nables, non fondés, et constituent des erreurs de droit. 20 Quant au défendeur, il soumet que la demande de la demanderesse doit etreˆ rejetée parce que la demanderesse n’a pas soulevé d’arguments sérieux a` faire valoir a` l’encontre de la décision de la SPR. Selon le défendeur, la demanderesse n’a fait que citer dans son mémoire des déci- sions rendues par cette Cour en matière de crédibilité alors que telle n’était pas la conclusion tirée par la SPR en l’espèce. De plus, il est bien etabli´ par la jurisprudence que la question de savoir si un traitement peut etreˆ considéré comme etant´ de la persécution est une question de fait qui est du ressort exclusif du tribunal spécialisé (Ihaddadene v. Canada (Minister of Employment & Immigration) (1993), 42 A.C.W.S. (3d) 887 (Fed. C.A.)).

VIII. Norme de contrôle 21 Il est etabli´ dans la jurisprudence que l’évaluation de la preuve et des témoignages, ainsi que de leur accorder ou non de la valeur probante appartient a` la SPR (Aguebor v. Canada (Minister of Employment & Im- migration) (1993), 160 N.R. 315 (Fed. C.A.)). La norme de contrôle est celle de la décision raisonnable et un certain degré de déférence est due envers la décision du tribunal spécialisé (New Brunswick (Board of 136 IMMIGRATION LAW REPORTER 2 Imm. L.R. (4th)

Management) v. Dunsmuir (2008), 2008 SCC 9, [2008] 1 S.C.R. 190 (S.C.C.)). 22 Quant a` l’application des Directives, une décision de cette Cour révisant une conclusion de la SPR concluait, a` la question de savoir si la SPR a pris en compte les Directives concernant la persécution fondée sur le sexe, que la norme de la décision raisonnable s’appliquait (Correa Juarez v. Canada (Minister of Citizenship & Immigration) (2010), 2010 CF 890 (F.C.) au para 12).

IX. Analyse (1) La SPR a-t-elle commis une erreur en omettant d’analyser l’ensemble de la preuve au dossier ou en omettant ou négligeant de préciser les raisons de son refus lorsqu’elle a conclu que la demanderesse n’avait pas de crainte fondée de persécution? 23 La demanderesse a le fardeau de démontrer une crainte raisonnable de persécution pour que sa demande soit accueillie. La Cour suprême a etabli´ que la crainte de persécution comporte deux volets, soit une crainte subjective et une crainte objective (Ward v. Canada (Minister of Employment & Immigration) (1993), [1993] 2 S.C.R. 689 (S.C.C.)). Ainsi, « l’élément subjectif est basé sur l’appréciation de la crédibilité du demandeur et la peur objective est appuyée par la preuve documentaire soumise a` l’appui de sa demande » (Rezk c. Canada (Ministre de la Citoyenneté & de l’Immigration) (2005), 2005 CF 151, 149 A.C.W.S. (3d) 286 (F.C.) au para 9, citant Rajudeen v. Canada (Minister of Employment & Immigration) (1984), 55 N.R. 129 (Fed. C.A.)).

L’élément subjectif 24 Dans une analyse comportant moins de deux pages, la SPR a conclu que la demanderesse n’avait pas démontré l’existence d’une possibilité sérieuse qu’elle soit persécutée en vertu de l’un des motifs de la Conven- tion si elle devait retourner au Liban. Or, la SPR n’a pas examiné de fa¸con raisonnable les el´´ ements de preuve qui ont et´´ e déposés par la partie demanderesse. 25 Tout d’abord, dans sa décision, la SPR a traité de certains passages du témoignage de la demanderesse, ainsi que de sa fille: [10] [...] Elle [la demanderesse] a cependant déclaré qu’il s’énervait contre elle et qu’elle se réfugiait alors chez les voisins. Au tribunal qui lui demandait s’il la battait physiquement, la demandeure a ré- El Romhaine c. Canada (MCI) Michel M.J. Shore J. 137

pondu « non », bien qu’il criait contre elle. Elle a affirmé que son fils n’allait pas bien. Sa fille Thérèse a déclaré que son frère Michel rendait la vie difficile a` sa mère (ce qui, selon l’interprète a` l’audience, est le même mot en arabe que torture), et son procureur a utilisé le terme de torture psychologique. 26 Cet extrait est l’unique passage des motifs de la décision de la SPR qui fasse directement référence au préjudice subi et\ou crainte par madame Romhaine. Il etait´ du ressort de la SPR d’accorder du poids ou non aux témoignages rendus; cependant, la SPR a omis par la suite d’examiner le reste de la preuve pertinente au dossier qui décrit les actes de persécution. En effet, dans son Formulaire de renseignements personnels (FRP), la demanderesse a fourni plus de détails au sujet de sa crainte subjective. Elle y a expliqué qu’elle recevait un revenu après le décès de son epoux,´ et qu’elle pouvait alors subvenir a` ses besoins financiers, ainsi qu’à ceux de son fils. Or, c’est lorsque ce revenu s’est epuis´´ e que son fils a commencé a` la maltraiter: [...] Il me laissait plus manger, il me laissait plus dormir dans la chambre, mais bien sur le balcon. Il amenait sa copine et me chassait de la maison. Les voisins voyant que je fesait pitié, ils m’hébergeait et me donnait a` manger jusqu’à l’année passé quand ma fille m’a envoyée une demande de visite, que j’ai acceptée. Dès que j’ai obtenue la visa, il m’a mise hors de la maison et les beaux-parents de ma fille m’ont hébergés chez eux jusqu’à temps que ma fille m’a envoyée l’argent pour le billet en mars 2008. Quand je suis venue ici au Canada, j’ai racontée a` ma fille toute mon histoire et maintenant sa fait 5 mois je suis ici. Je suis très confortable près de la fille alors j’ai aimée rester dans ce pays avec elle car je n’ai plus de maison au Liban et je n’ai plus personnes. (La Cour souligne). (Tel qu’apparaissant dans le Formulaire de renseignements personnels de la demanderesse, Dossier du tribunal (DT) a` la p 50). 27 Ce comportement ne démontre pas seulement une agression verbale, mais egalement´ une agression physique en plus d’aliénation et d’isolement. 28 Le FRP est le seul document dans lequel la demanderesse fournit des détails sur le quotidien qui etait´ le sien lorsqu’elle vivait au Liban avec son fils. La SPR n’en traite pas dans sa décision, ni ne fait référence aux faits qui y sont décrits. Le mémoire du défendeur cite par ailleurs l’affaire Ihaddadene, ci-dessus, au paragraphe 2, par la juge Alice Des- 138 IMMIGRATION LAW REPORTER 2 Imm. L.R. (4th)

jardins, dans lequel il etait´ question « d’embêtements » et de « bouscu- lades ». Or, la Cour rappelle que les actes discriminatoires peuvent constituer de la persécution s’ils sont suffisamment graves et s’ils surviennent sur une période de temps suffisamment longue pour en conclure que l’intégrité physique psychique ou morale de la demanderesse en serait menacée. Dans le cas présent, la demanderesse a vécu un peu plus de 20 ans avec son fils, et les actes de violence s’étalaient sur plusieurs années.

La crainte objective 29 Comme unique référence a` la preuve documentaire, la SPR a différ- encié la situation de la demanderesse, veuve citoyenne du Liban, a` celle des veuves en Inde et a conclu: [18] [...] Rien dans la preuve documentaire n’indique que les veuves au Liban sont mises au ban de la société. C’est d’autant plus le cas en l’espèce que la demandeure est de religion catholique et que la preuve documentaire indique que les femmes de cette communauté profitent d’une plus grande ouverture. 30 Ce qui a et´´ e négligé par la SPR est que chaque cas est un cas d’espèce. 31 Dans le but d’appuyer cette dernière conclusion, la SPR s’est basée sur un seul passage de la preuve documentaire auquel elle réfère en note de bas de page. Aucun autre document n’a et´´ e mentionné: 3.9.3 Lebanon is made up of many heterogeneous communities and societies, and there are many very different mindsets throughout the country. There are, for example, tribal communities which have very strict laws on a woman’s virginity but there is also, particularly among Lebanese Christians, a very open mentality that indulges and even permits common-law relationships. A woman’s age and financial situation play a large role in determining the risks she faces. A woman of 40 or even 35 years may be spared, as well as a divorced woman. (La Cour souligne). (Operational Guidance Note — Lebanon, Lebanon, OGN v. 3.0 Issued 10 June 2009, DT a` la p 15). 32 Bien que cet extrait fasse référence a` la violence envers les femmes telle que vécue par les différentes tranches de la société libanaise, il y est plus particulièrement question de l’ouverture de la communauté chré- tienne face aux relations dites de « common-law », soit des relations hors El Romhaine c. Canada (MCI) Michel M.J. Shore J. 139

mariage pour les libanaises chrétiennes. Outre ce commentaire spécifique au sujet de l’ouverture des communautés chrétiennes, la SPR n’a pas traité de la preuve documentaire relative a` l’ostracisme envers les femmes battues, les veuves ou même les personnes ag´ˆ ees au Liban. La preuve documentaire déposée devant la SPR fournissait des com- mentaires additionnels sur la situation des femmes au Liban, notamment: 3.9.6 The law does not specifically prohibit domestic violence, and domestic violence against women remained a problem in 2008. There were no authoritative statistics on the extent of spousal abuse. De- spite a law prohibiting battery with a maximum sentence of three years in prison for those convicted, some religious courts legally may require a battered wife to return to her home in spite of physical abuse. Women were sometimes compelled to remain in abusive marriages because of economic, social, and family pressures. Possible loss of custody of children and the absence of an independent source of income prevented women from leaving their husbands. (Operational Guidance Note, ci-dessus, DT aux pp 15-17). 33 Par la suite, la SPR n’a pas traité de la question de la protection de l’Etat,´ ni de la possibilité d’un refuge intérieur (PRI) et n’a pas examiné les conditions du Liban en ce sens (ce qu’elle n’était d’ailleurs pas dans l’obligation de faire). La SPR a cependant conclu que la demanderesse avait deux solutions de rechange, soit d’aller vivre avec un autre de ses enfants au Liban, ou de vivre seule: [...] Le fait que ses six autres enfants aient leur vie et leur famille a` eux, ou qu’il ait pu y avoir certains conflits familiaux, n’est pas suf- fisant en soi pour démontrer qu’il n’existe pas de possibilité de réc- onciliation ou de prise en charge de la demandeure par ses enfants. La demandeure n’a pas démontré qu’elle n’était pas en mesure de convenir d’un arrangement pour obtenir du soutien ou qu’elle serait effectivement victime de persécution si elle devait vivre seule au Liban. (Décision au para 17) 34 Ces solutions de rechange démontrent que la SPR avait conclu que la demanderesse n’avait aucun fondement a` sa crainte de persécution. Or, la première solution, soit celle d’aller vivre avec l’un de ses enfants, va a` l’encontre de ce qui a et´´ e relaté lors des témoignages a` l’audience. La Commissaire ne peut pas venir raisonnablement a` la conclusion que madame Romhaine puisse aller vivre chez un autre de ses enfants, sans expliquer pourquoi elle ne tient pas compte des témoignages qui ont et´´ e 140 IMMIGRATION LAW REPORTER 2 Imm. L.R. (4th)

rendus, et sans porter de jugement quant a` la crédibilité des témoins, par- ticulièrement considérant que la preuve testimoniale de la demanderesse a` l’effet que ses enfants refusaient de la prendre a` charge a et´´ e corroborée par le témoignage de la fille de la demanderesse. Dans son témoignage, Thérèse a expliqué ce qui suit: Q. Non, mais pourquoi les autres ne veulent pas l’avoir chez eux? R. Ah, parce qu’ils se sont disputés avec elle, et aussi, ils n’ont pas les moyens. Q. Et pourquoi ils se sont disputés avec elle? R. Parce que mon père, mon père etait...´ Lorsque mon père etait´ décédé, elle a préféré l’aˆıné. Elle avait de l’argent, elle est restée avec mon frère aˆıné parce qu’il etait´ célibataire. Une fois que l’argent, c’était terminé, et c’était la guerre aussi, parfois il travaille, parfois il travaille pas, donc il est toujours plus ou moins de mauvaise humeur. (DT a` la p 114). 35 La situation a débuté suite au décès de l’époux de madame Romhaine (en 1989), ou du moins, depuis l’épuisement des revenus financiers de cette dernière, et a perduré jusqu’en 2008, lorsqu’elle est partie pour le Canada. Il est difficile de croire qu’aucun des enfants de madame Romhaine n’était au courant de la situation de violence qui existait dans la maison familiale entre le fils, Michel, et la mère. La Commissaire n’a pas expliqué les raisons qui l’ont fait conclure que les enfants de madame Romhaine prendraient celle-ci a` charge, alors qu’ils ne l’ont pas fait au cours des dernières années. Quant a` sa conclusion selon laquelle madame Romhaine pourrait vivre seule, encore une fois, la Commissaire ne donne aucune explication dans ses motifs qui puissent etayer´ cette solution. La Cour détermine que la Commissaire aurait dû a` tout le moins examiner la preuve documentaire qui porte sur la situation des femmes seules au Liban, particulièrement les personnes ag´ˆ ees. 36 Cette Cour avait d’ailleurs récemment examiné la preuve documentaire au sujet de la situation de la violence envers les femmes au Liban. Le juge Michel Beaudry avait accueilli la demande sur la base de la preuve documentaire qui se devait d’être examinée: [18] On retrouve au dossier une preuve documentaire abondante sur la situation au Liban traitant de la violence domestique a` l’égard des femmes et la pauvreté. Cette preuve démontre que lorsque les femmes rapportent des incidents de violence conjugale, la police ignore El Romhaine c. Canada (MCI) Michel M.J. Shore J. 141

souvent leur plainte et dans certains cas les femmes victimes de violence conjugale sont tenues, par ordonnance de certains tribunaux religieux, de retourner a` domicile. La preuve démontre aussi, qu’il n’y a aucune agence reconnue au Liban auquel peut se tourner les femmes victimes de violence conjugale. Compte tenu de l’importance ac- cordée par le tribunal a` l’aspect financier de la demanderesse et des circonstances economiques´ de celle-ci, cette preuve documentaire devenait importante et le tribunal se devait de la considérer expressé- ment, ne serait-ce que pour apprécier la vraisemblance du témoignage de la demanderesse dans le contexte de la situation au Liban sur la question de la protection etatique´ pour les femmes victimes de violence domestique. En manquant d’effectuer cette analyse, le tribunal n’a pas mis en contexte les allégations de la demanderesse avec la réalité socio-économique du pays et particulièrement celle de la femme victime de violence conjugale au Liban. Compte tenu de l’importance de cette preuve documentaire, je ne peux que conclure que le tribunal a rendu une décision sans tenir compte des el´´ ements de preuve dont il dispose. (El Hage c. Canada (Ministre de la Citoyenneté & de l’Immigration) (2008), 2008 CF 1177, 173 A.C.W.S. (3d) 581 (F.C.)). 37 La SPR a donc commis une erreur en concluant, sur la base de la prépondérance des probabilités, que la demanderesse ne risquait pas sér- ieusement d’être persécutée au Liban, et que des solutions de rechange existaient. Sur tous ces points, la SPR a omis de mentionner de la preuve qui etait´ si importante au dossier que le fait de ne pas la mentionner dans les motifs permet d’inférer qu’elle ait et´´ e effectivement omise (Cepeda- Gutierrez v. Canada (Minister of Citizenship & Immigration) (1998), 157 F.T.R. 35, 83 A.C.W.S. (3d) 264 (Fed. T.D.)). En arrivant a` cette conclusion, la SPR a omis de tenir compte que madame Romhaine est une personne vulnérable, dépendante de son fils, qui a allégué ne plus avoir de revenus financiers. En examinant la preuve déposée au dossier et les motifs tels que rédigés dans la décision, la décision de la SPR ne peut etreˆ raisonnable.

a. La SPR a-t-elle appliqué dans sa décision les Directives no 4 sur les femmes craignant d’être persécutée en raison de leur sexe, et les Directives no 8 sur les personnes vulnérables? 38 Il ressort clairement du procès-verbal de l’audience qui a eu lieu le 2 septembre 2010 que la demanderesse a eu de la difficulté a` témoigner. Madame Romhaine est une femme analphabète qui devait faire appel aux 142 IMMIGRATION LAW REPORTER 2 Imm. L.R. (4th)

services d’une interprète. La demanderesse a eu de la difficulté a` parler en termes clairs des traitements que lui aurait fait subir son fils aˆıné, mais, de son témoignage ce dégage le fait que madame Romhaine vivait une situation d’une mère pris entre l’arbre et l’écorce, comme mère qui a honte que son fils l’abuse et qu’elle se retrouve dans des circonstances de péril a` sa personne. La relation particulière qui existe entre la victime, une mère ag´ˆ ee, veuve et dépendante tant financièrement que sur le plan physique et psychologique, et le persécuteur, son fils, rendait la situation si délicate. Le même manque de précision est apparent lorsque la Com- missaire a demandé a` madame Romhaine d’expliquer en quoi elle ne pouvait pas aller vivre chez ses autres enfants, particulièrement ceux qui habitent toujours a` Beyrouth: Q. Est-ce que vous pourriez vivre chez un autre de vos enfants? R. Je ne sais pas ce que je vais faire. J’ai pas de maison pour vivre seule, et je ne sais pas ce que je vais faire. (DT a` la p 108) (Son silence est donc son désespoir a` cet egard´ démon- trait que personne dans sa famille n’en voulait au Liban.) 39 La SPR a réalisé que la demanderesse etait´ réticente de parler contre son fils a` cause de son etat´ d’âme (Décision au para 10) et spécifie qu’il « s’agit là d’une situation familiale désolante et tien[t] compte de la vulnérabilité de la demandeure [...] (Décision au para 15) (mais, né- anmoins, la SPR n’a pas rendu sa conclusion dans le sens qualifié par elle-même, malgré qu’elle a désigné les circonstances de la demanderesse comme etant´ une « situation familiale désolante » et démontrant « la vulnérabilité de la demandeure ».) 40 La Cour reproduit ici un passage célèbre de la Cour suprême portant sur le sujet du syndrome de la femme battue qui traitait, sous la plume de la juge Bertha Wilson, de la situation des femmes battues et de leur dif- ficulté a` témoigner des mauvais traitements qu’elles ont subies: [54] Une autre manifestation de cette forme d’oppression est ap- paremment la réticence de la victime a` révéler l’existence ou la gravité des mauvais traitements [...] (La Cour souligne). (R. v. Lavallee (1990), [1990] 1 S.C.R. 852, 108 N.R. 321 (S.C.C.)). 41 La Commissaire n’a pas posé plusieurs questions a` la demanderesse et a` sa fille relativement aux mauvais traitements subis et a` l’impossibilité de déménager chez les autres enfants. D’une part, on pourrait en conclure que la Commissaire a fait preuve de délicatesse et a El Romhaine c. Canada (MCI) Michel M.J. Shore J. 143

respecté les Directives no 4 en interrogeant la demanderesse avec délicat- esse et respect, en n’insistant pas sur des ev´´ enements difficiles. D’autre part, la Commissaire se base principalement sur le témoignage de la demanderesse et de sa fille dans sa décision, sans mentionner le FRP ou la preuve documentaire et conclut a` l’absence de persécution. A` la lumière des principes des Directives no 4 et des Directives no 8, il etait´ déraison- nable que la SPR se base sur ce manque d’information dans le témoignage pour conclure a` une absence de possibilité sérieuse d’être persécutée, sans etudier´ la preuve complète.

X. Conclusion 42 Etant´ donné les faits de la présente cause, il est justifié que la Cour intervienne et pour ces motifs, la demande de contrôle judiciaire est ac- cordée et l’affaire est retournée pour redétermination par un autre commissaire.

Jugement LA COUR ORDONNE que la demande de contrôle judiciaire soit ac- cordée et l’affaire soit retournée pour redétermination par un autre commissaire. Aucune question grave de portée générale ne soit certifiée. Application granted. 144 IMMIGRATION LAW REPORTER 2 Imm. L.R. (4th)

[Indexed as: Canada (Minister of Citizenship & Immigration) v. Guettouche] Minister of Citizenship and Immigration, Applicant and Sadia Guettouche, Respondent Federal Court Docket: T-1828-10 2011 FC 574 Russel W. Zinn J. Heard: May 18, 2011 Judgment: May 19, 2011 Immigration and citizenship –––– Citizenship — Grant of citizenship — Re- quirements for grant of citizenship — Residence in Canada — General principles –––– Respondent was Algerian citizen living in Canada since 2000 but working abroad — Respondent’s application for citizenship was rejected, but her appeal was allowed and she was granted ciizenship by different judge — Minister appealed — Appeal allowed — Citizenship judge erred in not explicitly answering threshold question as to whether respondent had established residence in Canada before examining whether applicant “regularly, normally or customarily” lived in Canada. Cases considered by Russel W. Zinn J.: Goudimenko v. Canada (Minister of Citizenship & Immigration) (2002), 2002 CFPI 447, 2002 CarswellNat 937, 2002 FCT 447, [2002] F.C.J. No. 581 (Fed. T.D.) — considered Koo, Re (1992), 19 Imm. L.R. (2d) 1, [1993] 1 F.C. 286, 59 F.T.R. 27, 1992 CarswellNat 83, 1992 CarswellNat 621, [1992] F.C.J. No. 1107 (Fed. T.D.) — followed Mahiout v. Canada (Minister of Citizenship & Immigration) (2006), 2006 FC 32, 2006 CarswellNat 180 (F.C.) — referred to Mahiout v. Canada (Minister of Citizenship & Immigration) (2010), 2010 FC 143, 2010 CarswellNat 2084, 2010 CF 143, 2010 CarswellNat 1231 (F.C.) — referred to Statutes considered: Citizenship Act, R.S.C. 1985, c. C-29 Generally — referred to Canada (MCI) v. Guettouche Russel W. Zinn J. 145

s. 5(1)(c) — considered

APPEAL by Minister of decision of Citizenship Judge granting citizenship to respondent.

Mr. Rick Garvin, for Applicant Ms Sadia Guettouche, Respondent, for herself

Russel W. Zinn J.:

1 The Minister appeals the decision of Citizenship Judge May Way ap- proving the respondent’s application for Canadian citizenship. 2 Ms. Guettouche is a citizen of Algeria. She arrived in Canada as a permanent resident on August 29, 2000. Her husband, Mohamed Said Mahiout, also Algerian, had been living in Canada since 1998. The respondent and her husband are both geophysical engineers. They have three Canadian born children; Riane, aged 8, and Samy and Sophia, twins aged 6. 3 Soon after arriving in Canada, the respondent’s husband accepted employment that required him to travel and work abroad for extended peri- ods of time, and Ms. Guettouche often accompanied him, along with their children. During the period of time relevant to this case, the family lived in Oman and Iran as well as Canada. 4 On October 2, 2003, the respondent and her husband made their first applications for citizenship. The applications were denied by Citizenship Judge P.M. Gleason on April 11, 2005 because the respondent and her husband had not met the residency requirement of the Citizenship Act. An appeal to this Court was dismissed: Mahiout v. Canada (Minister of Citizenship & Immigration), 2006 FC 32 (F.C.). 5 On October 18, 2006 the respondent and her husband submitted their second applications for citizenship. Citizenship Judge Bitar refused the applications on June 2, 2009. They again appealed to this Court. Justice Campbell allowed their appeal and ordered that the application for citizenship be reconsidered by a different citizenship judge: Mahiout v. Canada (Minister of Citizenship & Immigration), 2010 FC 143 (F.C.). 6 The applications were reconsidered by Citizenship Judge Way. Judge Way allowed the Ms. Guettouche’s application but denied her husband’s application. Ms. Guettouche’s husband has not appealed the decision on 146 IMMIGRATION LAW REPORTER 2 Imm. L.R. (4th)

his application, but the Minister appealed the decision to grant Ms. Guet- touche citizenship. 7 Judge Way noted that the relevant period under consideration was October 18, 2002 to October 18, 2006 and that during this period Ms. Guettouche had been physically present in Canada for 963 days of the required 1095 days, leaving a shortfall of 132. In fact, Ms. Guettouche was not physically present in Canada from the beginning of the relevant period until January 10, 2003. 8 The judge proceeded to consider the six factors set out by Justice Reed in Koo, Re (1992), [1993] 1 F.C. 286 (Fed. T.D.), noting that the case provided that physical presence in Canada for the entire 1095 days is not required and that the residency test can be articulated as whether the applicant “regularly, normally, or customarily lives” in Canada or whether Canada is the country in which the applicant has centralized his or her mode of existence. 9 The judge noted that the pattern of Ms. Guettouche’s absences from Canada ceased when she returned to Canada to give birth to her twins in 2004 and stated; “I believe that during this latter two and a quarter years (approximately) of the relevant period, the applicant began to establish residence in Canada” (emphasis added). The judge also found that “Her ties to Canada were stronger than to any other country in the relevant period, as she had her children in Canada, worked only in Canada, filed income taxes only in Canada, has investments only in Canada, does not own property outside of Canada, and spent more time in Canada (approximately 963 days) than outside Canada (approximately 497 days).” 10 The judge was satisfied that the respondent had centralized her mode of living in Canada and that she satisfied the residency requirement under the Citizenship Act, and accordingly approved her application for citizenship. 11 The Minister raises two issues: (1) Whether the citizenship judge erred in law by failing to determine that the respondent had initially established residence in Canada; and (2) Whether the citizenship judge erred by finding the respondent had met the Koo test while also clearly stating the she did not meet some portions of the test. 12 In my view the second issue may be quickly rejected as there is no merit to the submission that an applicant for citizenship is required to meet all of the factors identified in Koo in order to be found to “regularly, normally or customarily” live in Canada. In Koo, Justice Reed de- Canada (MCI) v. Guettouche Russel W. Zinn J. 147

scribed the six questions as “Questions that can be asked which assist in such a determination” (emphasis added). The questions do not constitute a rigid test of conjunctive requirements. Further I do not accept the Min- ister’s submission that the judge effectively created a new test. She was entitled to weigh the factors and I cannot say that her weighing was unreasonable. 13 Most troubling is the first issue raised by the Minister — whether the judge erred in failing to determine that Ms. Guettouche had initially established residence in Canada, before embarking on a consideration of the Koo factors to determine whether that residency had continued, not- withstanding her absences from Canada. This is of particular concern as the record before the judge indicates although Ms. Guettouche entered Canada on August 29, 2000, she left Canada with her husband five months later, on February 3, 2001, and was continually absent from Can- ada from that date until January 10, 2003, which was within the relevant period for determining residency for citizenship purposes. 14 The law relating to the residency requirements of s. 5(1)(c) of the Citizenship Act, RSC 1985, c C-29 is a two-step process, as was articulated by Justice Layden-Stevenson, as she then was, in Goudimenko v. Canada (Minister of Citizenship & Immigration), 2002 FCT 447 (Fed. T.D.), at para. 13: At the first stage, the threshold determination is made as to whether or not, and when, residence in Canada has been established. If residence has not been established, the matter ends there. If the threshold has been met, the second stage of the inquiry requires a determination of whether or not the particular applicant’s residency satisfies the required total days of residence. It is with respect to the second stage of the inquiry, and particularly with regard to whether absences can be deemed residence, that the divergence of opinion in the Fed- eral Court exists. 15 The citizenship judge in this case did not explicitly answer the threshold question of whether residence was established by Ms. Guettouche. I may have been prepared to infer that the first stage of the test had been met from the fact that the judge turned to the Koo test for residency and determined that the respondent had centralized her mode of living in Canada. However, the judge’s statement that “I believe that during this latter two and a quarter years (approximately) of the relevant period, the applicant began to establish residence in Canada” makes such an inference impossible. It begs the question: “If she only began to establish resi- 148 IMMIGRATION LAW REPORTER 2 Imm. L.R. (4th)

dence in the latter two and one-quarter years, when, if ever, did Ms. Guettouche actually establish residency in Canada?” 16 In order to apply the Koo factors to examine absences in excess of the statutory minimum, a citizenship judge must make an initial determination that the applicant for citizenship has established residence in Can- ada. In this case, I am unable to conclude that such a finding was made and therefore I must allow this appeal.

Judgment THIS COURT’S JUDGMENT is that the appeal is allowed and the decision of Citizenship Judge May Way is set aside, without costs Appeal allowed. Kindie v. Canada (MCI) 149

[Indexed as: Kindie v. Canada (Minister of Citizenship & Immigration)] Tiru Animut Kindie, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-6137-10 2011 FC 850 Donald J. Rennie J. Heard: June 23, 2011 Judgment: July 8, 2011 Immigration and citizenship –––– Admission — Appeals and judicial review — Judicial review — Miscellaneous issues –––– Applicant was citizen of Ethiopia and was offered temporary position in Canada as cook at her half- brother’s restaurant — Applicant applied for work permit at Canadian Embassy in Nairobi, Kenya — Visa officer refused application without interview on basis that officer was not satisfied that applicant would leave Canada at end of permit period due to social and economic situation in Ethiopia — Applicant brought application for judicial review — Application dismissed — Officer had objective reasons to conclude that applicant would not leave Canada at end of permit period — Applicant’s mother had obtained temporary visa in Canada and upon arrival had claimed refugee status — Applicant’s mother resided in same city where applicant was set to work, and where applicant’s half-brother resided — Officers were required to situate applications in broader context; it would have been unreasonable to require officer to turn blind eye to surrounding circumstances, including recent conduct of family members. Immigration and citizenship –––– Admission — Application for temporary resident or immigrant visa — Powers and duties of visa or immigration officer –––– Applicant was citizen of Ethiopia and was offered temporary position in Canada as cook at her half-brother’s restaurant — Applicant applied for work permit at Canadian Embassy in Nairobi, Kenya — Visa Officer refused application without interview on basis that officer was not satisfied that applicant would leave Canada at end of permit period due to social and economic situation in Ethiopia — Applicant brought application for judicial review — Application dismissed — Officer had objective reasons to conclude that applicant would not leave Canada at end of permit period — Applicant’s mother had obtained temporary visa in Canada and upon arrival had claimed refugee status — Appli- cant’s mother resided in same city where applicant was set to work, and where 150 IMMIGRATION LAW REPORTER 2 Imm. L.R. (4th) applicant’s half-brother resided — Officers were required to situate applications in broader context; it would have been unreasonable to require officer to turn blind eye to surrounding circumstances, including recent conduct of family members. Cases considered by Donald J. Rennie J.: Baylon v. Canada (Minister of Citizenship & Immigration) (2009), 2009 CF 743, 2009 CarswellNat 4153, 2009 CarswellNat 2505, 2009 FC 743 (F.C.) — referred to Boughus v. Canada (Minister of Citizenship & Immigration) (2010), 2010 Car- swellNat 2171, 2010 CF 210, 2010 FC 210, 2010 CarswellNat 404 (F.C.) — referred to Bravo v. Canada (Minister of Citizenship & Immigration) (2010), 2010 Car- swellNat 958, 2010 FC 411, 2010 CarswellNat 3275, 2010 CF 411, 89 Imm. L.R. (3d) 123 (F.C.) — referred to Cao v. Canada (Minister of Citizenship & Immigration) (2010), 2010 Car- swellNat 3456, 2010 FC 941, 2010 CF 941, 2010 CarswellNat 4185, 91 Imm. L.R. (3d) 302 (F.C.) — referred to Danioko c. Canada (Ministre de la Citoyennet´e & de l’Immigration) (2006), 2006 CF 479, 2006 CarswellNat 923, 2006 CarswellNat 3420, 2006 FC 479, 292 F.T.R. 1 (Eng.), [2006] F.C.J. No. 578, [2006] A.C.F. No. 578 (F.C.) — referred to Dhanoa v. Canada (Minister of Citizenship & Immigration) (2009), 2009 Car- swellNat 2159, 2009 FC 729, 2009 CF 729, 2009 CarswellNat 4903 (F.C.) — referred to Khatoon v. Canada (Minister of Citizenship & Immigration) (2008), 2008 Car- swellNat 558, 71 Imm. L.R. (3d) 102, 2008 CarswellNat 1024, 2008 CF 276, 2008 FC 276 (F.C.) — referred to Rengasamy v. Canada (Minister of Citizenship & Immigration) (2009), 2009 CF 1229, 2009 CarswellNat 5505, 2009 FC 1229, 2009 CarswellNat 4073, 86 Imm. L.R. (3d) 106 (F.C.) — referred to Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 11(1) — considered Regulations considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Immigration and Refugee Protection Regulations, SOR/2002-227 s. 179 — considered

APPLICATION for judicial review seeking to set aside decision of visa officer which denied applicant’s application for work permit. Kindie v. Canada (MCI) Donald J. Rennie J. 151

Paul VanderVennen, for Applicant Kareena Wilding, for Respondent

Donald J. Rennie J.:

1 The applicant seeks to set aside a decision dated August 24, 2010 of a Visa Officer at the Canadian Embassy in Nairobi, Kenya, denying the applicant’s application for a work permit. The visa request was denied on the basis that the Visa Officer was not satisfied that the applicant would leave Canada by the end of the period authorized due to her social and economic situation in her country of residence. 2 The principles governing judicial review of decisions of visa officers with respect to work permits are well established. First, the officer’s discretion is framed by subsection 11(1) of the Immigration and Refugee Protection Act, 2001, c. 27 (IRPA) and section 179 of the Immigration and Refugee Protection Regulations (SOR/2002-227) (the Regulations), which together provide that the officer shall issue a visa if it is established that the foreign national will leave Canada at the end of the period authorized by the visa. 3 Second, the decisions are highly discretionary and the findings of fact are entitled to deference; see Boughus v. Canada (Minister of Citizenship & Immigration), 2010 FC 210 (F.C.). 4 Third, there is an onus on a foreign national seeking to enter Canada to rebut the presumption that they are entering as an immigrant; Danioko c. Canada (Ministre de la Citoyennet´e & de l’Immigration), 2006 FC 479 (F.C.). 5 Fourth, the degree of procedural fairness that is required in the context of a work permit application from abroad falls at the low end of the spectrum; Bravo v. Canada (Minister of Citizenship & Immigration), 2010 FC 411 (F.C.). 6 Fifth, consistent with the minimal duty of fairness, there is no obligation to provide lengthy reasons, but that the officers notes do form part of the reasons for decision; Bravo, above. 7 Sixth, simply because an officer’s reasons indicate factors which the officer considers determinative does not mean that the other evidence was ignored; Boughus, para 56. The weight to be assigned to each factor is a matter for the officer’s discretion; Baylon v. Canada (Minister of Citizenship & Immigration), 2009 FC 743 (F.C.). 152 IMMIGRATION LAW REPORTER 2 Imm. L.R. (4th)

8 Finally, the respondent cannot, through a supplementary affidavit, fill in the gaps in the record or the reasoning by identifying further factors or considerations. Affidavits may be required where there are allegations of unfairness but as a general rule the respondent cannot buttress the record with after the fact analysis. 9 On August 24, 2010, the Canadian High Commission in Nairobi, Ke- nya issued a decision denying the applicant a work permit. She had a job offer for an eight-month period for a position as a cook at her half- brother’s restaurant in Hamilton and her application was supported by a Labour Market Opinion from Service Canada. 10 The Visa Officer refused the application without an interview on the basis that the officer was not satisfied that the applicant would leave Canada by the end of the period authorized for her stay because of the social and economic situation in her country of residence. The Computer Assisted Immigration Processing System (CAIPS) notes elaborate on the officer’s reasons: As for PA - personal economic situation appears weak. Duration of employment is for 8 months. Given family history to Cda, have concerns for BFs. (MTR made RR claim recently). Not satisfied that PA has strong economic ties to ensure return and wld depart Cda following admission. Refused. 11 The family history to which the Visa Officer referred was the arrival of the applicant’s mother “(MTR)” to Canada on a visitor’s visa to visit the applicant’s half-brother. Upon arrival, the applicant’s mother made a claim for refugee status. 12 While I agree with Mr. VanderVennen that the analysis of the applicant’s economic and social ties to Ethiopia is weak, there is some support for the concern given the finding that the applicant had only four years work experience and a high school education. The Visa Officer emphasized the salary differential between the applicant’s position in Ethiopia and her prospective salary in Canada. This was, in and of itself, insufficient basis upon which the visa could be rejected. 13 There must be an objective reason to question the motivation of the applicant. It is inconsistent with the purpose and object of the statutory and regulatory scheme authorizing temporary work visas to rely on the very factor that would induce someone to come to Canada in the first place as the basis for keeping them out. The scheme itself is predicated on the assumption that people will come to Canada to seek work in order Kindie v. Canada (MCI) Donald J. Rennie J. 153

to better their economic situation. It is for this reason that decisions of this Court have consistently held that economic reasons to overstay will not, in and of themselves, support a refusal; Cao v. Canada (Minister of Citizenship & Immigration), 2010 FC 941 (F.C.), per Justice Martineau J; Khatoon v. Canada (Minister of Citizenship & Immigration), 2008 FC 276 (F.C.), per Justice Temblay-Lamer; Dhanoa v. Canada (Minister of Citizenship & Immigration), 2009 FC 729 (F.C.), per Justice Harrington; and Rengasamy v. Canada (Minister of Citizenship & Immigration), 2009 FC 1229 (F.C.), per Justice O’Reilly. 14 The Visa Officer had however, objective evidence that constituted a sufficient basis for concern about the bona fides of the application and the applicant’s commitment to return to Ethiopia at the end of the visa. The applicant’s mother had been issued a visitor’s visa by the same High Commission in Nairobi and claimed refugee status on arrival. She is now residing in Hamilton, Ontario where the applicant proposes to work. This second consideration, in and of itself, supports the reasonableness of the Officer’s conclusion that it had not been established that the applicant would return to her country of origin. Officers are required to situate applications in their broader context and it would be unreasonable to require the Visa Officer to turn a blind eye to the surrounding circumstances, including the recent conduct of family members. 15 The application for judicial review is dismissed. 16 No question for certification.

Judgment THIS COURT’S JUDGMENT is that the application for judicial review be and is hereby dismissed. No question for certification has been proposed and none arises. Application dismissed. 154 IMMIGRATION LAW REPORTER 2 Imm. L.R. (4th)

[Indexed as: Bustamante v. Canada (Minister of Citizenship & Immigration)] Raul Orlande Quezada Bustamante, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-288-11 2011 FC 1198 Michael A. Kelen J. Heard: September 28, 2011 Judgment: October 20, 2011 Immigration and citizenship –––– Admission — Immigrants — Family class — Marriage for immigration purposes — Genuineness of marriage –––– Applicant was citizen of Ecuador — Applicant’s sponsor, I, was Ca- nadian citizen — Applicant met I in Toronto in July 2004, moved into her house in September 2004, and married her on October 13, 2006 — Applicant and I had two children together — In March 2007, applicant applied for permanent residence — In December 2008, applicant was informed that he had been determined eligible for permanent residence — Citizenship and Immigration Canada subsequently received “tip” that applicant had had affair — Officer refused applicant’s application on grounds that he was not member of spouse or common- law partner in Canada class — Applicant brought application for judicial review — Application granted — Marital infidelity in 2008 did not support conclusion that applicant’s marriage was entered into in 2006 primarily for immigration purposes — There were numerous other factors supporting conclusion that marriage was genuine, beyond cohabitation of applicant and I — Officer was obliged to weigh fact that applicant and I had two children together — Of- ficer made no negative credibility findings and did not explain why she accepted applicant’s testimony regarding affair, but not his testimony regarding genuineness of marriage — Officer’s decision did not have required transparency, intelligibility and justification to satisfy standard of reasonableness. Immigration and citizenship –––– Admission — Immigrants — Family class — Members of family class — Spouse –––– Applicant was citizen of Ec- uador — Applicant’s sponsor, I, was Canadian citizen — Applicant met I in To- ronto in July 2004, moved into her house in September 2004, and married her on October 13, 2006 — Applicant and I had two children together — In March 2007, applicant applied for permanent residence — In December 2008, applicant was informed that he had been determined eligible for permanent residence — Bustamante v. Canada (MCI) 155

Citizenship and Immigration Canada subsequently received “tip” that applicant had had affair — Officer refused applicant’s application on grounds that he was not member of spouse or common-law partner in Canada class — Applicant brought application for judicial review — Application granted — Marital infidelity in 2008 did not support conclusion that applicant’s marriage was entered into in 2006 primarily for immigration purposes — There were numerous other factors supporting conclusion that marriage was genuine, beyond cohabitation of applicant and I — Officer was obliged to weigh fact that applicant and I had two children together — Officer made no negative credibility findings and did not explain why she accepted applicant’s testimony regarding affair, but not his testimony regarding genuineness of marriage — Officer’s decision did not have required transparency, intelligibility and justification to satisfy standard of reasonableness. Cases considered by Michael A. Kelen J.: Akinmayowa v. Canada (Minister of Citizenship & Immigration) (2011), 97 Imm. L.R. (3d) 11, 2011 FC 171, 2011 CarswellNat 305, 2011 CF 171, 2011 CarswellNat 1283 (F.C.) — referred to Gill v. Canada (Minister of Citizenship & Immigration) (2010), 362 F.T.R. 281 (Eng.), 2010 CarswellNat 446, 2010 FC 122 (F.C.) — considered Khosa v. Canada (Minister of Citizenship & Immigration) (2009), 82 Admin. L.R. (4th) 1, 2009 SCC 12, 2009 CarswellNat 434, 2009 CarswellNat 435, 304 D.L.R. (4th) 1, 77 Imm. L.R. (3d) 1, 385 N.R. 206, (sub nom. Canada (Citizenship & Immigration) v. Khosa) [2009] 1 S.C.R. 339, [2009] S.C.J. No. 12 (S.C.C.) — referred to New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1, 69 Admin. L.R. (4th) 1, 69 Imm. L.R. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) [2008] 1 S.C.R. 190, 844 A.P.R. 1, (sub nom. Dunsmuir v. New Brunswick) 2008 C.L.L.C. 220-020, D.T.E. 2008T-223, 329 N.B.R. (2d) 1, (sub nom. Dunsmuir v. New Brunswick) 170 L.A.C. (4th) 1, (sub nom. Dunsmuir v. New Brunswick) 291 D.L.R. (4th) 577, 2008 CarswellNB 124, 2008 CarswellNB 125, 2008 SCC 9, 64 C.C.E.L. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) 95 L.C.R. 65, [2008] S.C.J. No. 9, [2008] A.C.S. No. 9 (S.C.C.) — considered Yadav v. Canada (Minister of Citizenship & Immigration) (2010), 2010 CF 140, 2010 CarswellNat 3619, 8 Admin. L.R. (5th) 86, 2010 CarswellNat 644, 2010 FC 140, 370 F.T.R. 174 (Eng.), [2010] F.C.J. No. 353 (F.C.) — referred to Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Generally — referred to 156 IMMIGRATION LAW REPORTER 2 Imm. L.R. (4th)

Regulations considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Immigration and Refugee Protection Regulations, SOR/2002-227 s. 4 — considered s. 4(1) — considered s. 123 — considered s. 124 — considered s. 124(a) — considered

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

John M. Guoba, for Applicant John Loncar, for Respondent

Michael A. Kelen J.:

1 This is an application for judicial review of the decision of an Immi- gration Officer, dated January 10, 2011, refusing the applicant’s application for permanent residence on the grounds that the applicant is not a member of the spouse or common-law partner in Canada class.

Facts Background 2 The applicant, Raul Orlando Quezada Bustamante, is a citizen of Ec- uador. He has been ordered to leave Canada on or before October 7, 2011. 3 The applicant’s sponsor, Ilda Do Couto, is a Canadian citizen. 4 The applicant met his sponsor in Toronto in July 2004. He moved into the sponsor’s house in September 2004. On October 13, 2006, the two were married at Toronto City Hall. 5 The applicant and the sponsor have two children together: Alisha Selen Costa Quezada, born December 20, 2007, and Heyden Shania Costa Quezada, born May 4, 2010. They also had one pregnancy that ended in miscarriage. 6 The applicant also had four children from previous relationships, none of whom live with him. 7 The applicant made his application for permanent residence under the spouse or commonlaw partner in Canada class on March 5, 2007. He was Bustamante v. Canada (MCI) Michael A. Kelen J. 157

interviewed, and on December 16, 2008, he was informed that he had been determined eligible for permanent residence under this class. 8 On March 16, 2010, the applicant and the sponsor were called in for a second interview in Etobicoke, Ontario. Citizenship and Immigration Canada (CIC) informed the applicant that they received a ‘tip’ that he was having a relationship with another woman, and had had a child with this other woman. They showed the applicant photographs they had obtained of him with the woman, her child and her family. 9 The applicant admitted to having an affair with this woman, and stated he was unsure whether he was the father of the child, but that it was likely. He admitted to spending time with her and with the child, but denied cohabiting with her. He stated that he had informed his sponsor of the affair and the child, and she eventually forgave him. The sponsor and the applicant stated that their marriage was genuine, despite the difficult time that they had dealing with the applicant’s infidelity. 10 After the interview, the sponsor submitted an affidavit, again stating that she was aware of the applicant’s affair, but that she forgave him, and their relationship was stronger than ever.

Decision under review 11 In a letter dated January 10, 2011, CIC informed the applicant that his application for permanent residence had been refused. The letter referred to Regulation 124(a), which requires that the applicant demonstrate he is “the spouse or common-law partner of a sponsor and that [he] cohabit[s] with that sponsor in Canada.” The letter stated that a foreign national is not considered a spouse or common-law partner if the marriage or relationship is not genuine or was entered into primarily for the purpose of acquiring any status or privilege under the Act. 12 The letter further stated: I am not satisfied that you have entered your marriage with your sponsor for genuine purposes, but primarily for immigration purposes. As such you do not meet the requirements of the class and your application for permanent residence as a member of the spouse and common-law partner in Canada class is refused. 158 IMMIGRATION LAW REPORTER 2 Imm. L.R. (4th)

13 The applicant was also provided with a Decision and Rationale, which summarized the second interview of the applicant and sponsor that occurred on March 16, 2010, and the sponsor’s affidavit. It then stated: Upon reviewing all the information on file and that provided by the applicant and sponsor at the interview, I am of the opinion that the couple are not in a genuine spousal relationship but for the purposes of immigration. I acknowledge that the sponsor and applicant are currently living together from the information provided at the interview to assess bonafides. However, given the intimate photographs with another woman other than his sponsor, the duration of his affair, the child he has with another woman, the time he continued to spend with his child and the mother of his child during his spousal application process, and the lack of substantial explanation as to why these events transpired, I am not satisfied that the applicant is in a genuine relationship with the sponsor. Although the applicant’s explanation is possible for such events to have occurred, it is not probable in my opinion. 14 The Decision and Rationale concluded that the applicant did not meet the requirements of Regulation 124(a), and that therefore the application was refused.

Legislation 15 Section 123 of the Immigration and Refugee Protection Regulations (SOR/2002-227) (the Regulations) creates the spouse or common-law partner in Canada class: 123. For the purposes of subsection 12(1) of the Act, the spouse or common-law partner in Canada class is hereby prescribed as a class of persons who may become permanent residents on the basis of the requirements of this Division. 123. Pour l’application du paragraphe 12(1) de la Loi, la catégorie des epoux´ ou conjoints de fait au Canada est une catégorie régle- mentaire de personnes qui peuvent devenir résidents permanents sur le fondement des exigences prévues a` la présente section. 16 Section 124 of the Regulations state the requirements for the spouse and common-law partner in Canada class: 124. A foreign national is a member of the spouse or common-law partner in Canada class if they (a) are the spouse or commonlaw partner of a sponsor and cohabit with that sponsor in Canada; Bustamante v. Canada (MCI) Michael A. Kelen J. 159

... 124. Fait partie de la catégorie des epoux´ ou conjoints de fait au Can- ada l’étranger qui remplit les conditions suivantes: a) il est l’époux ou le conjoint de fait d’un répondant et vit avec ce répondant au Canada; ... 17 Section 4 of the Regulations states that a foreign national will not be considered a spouse if the marriage was not genuine or was entered into primarily for the purpose of acquiring immigration status: 4. (1) For the purposes of these Regulations, a foreign national shall not be considered a spouse, a common-law partner or a conjugal partner of a person if the marriage, common-law partnership or conjugal partnership (a) was entered into primarily for the purpose of acquiring any status or privilege under the Act; or (b) is not genuine. ... 4. (1) Pour l’application du présent règlement, l’étranger n’est pas considéré comme etant´ l’époux, le conjoint de fait ou le partenaire conjugal d’une personne si le mariage ou la relation des conjoints de fait ou des partenaires conjugaux, selon le cas: a) visait principalement l’acquisition d’un statut ou d’un privi- lège sous le régime de la Loi; b) n’est pas authentique. ...

Issues 18 The issue before the Court is whether the decision of the Immigration Officer to refuse the application for permanent residence was unreasonable.

Standard of Review 19 In New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9, [2008] 1 S.C.R. 190 (S.C.C.), the Supreme Court of Canada held at paragraph 62 that the first step in conducting a standard of review analysis is to “ascertain whether the jurisprudence has already determined in a satisfactory manner the degree of (deference) to be accorded with regard to a particular category of question”: see also Khosa v. Canada (Minister of 160 IMMIGRATION LAW REPORTER 2 Imm. L.R. (4th)

Citizenship & Immigration), 2009 SCC 12, [2009] 1 S.C.R. 339 (S.C.C.), per Justice Binnie at paragraph 53. 20 The question of whether a marriage is genuine or entered into for immigration purposes is a question of fact, and is therefore to be reviewed on a standard of reasonableness: see, for example, my decisions in Akinmayowa v. Canada (Minister of Citizenship & Immigration), 2011 FC 171 (F.C.), at paragraph 18; Yadav v. Canada (Minister of Citizenship & Immigration), 2010 FC 140 (F.C.), at paragraph 50, and the other decisions cited therein. 21 In reviewing the Board’s decision using a standard of reasonableness, the Court will consider “the existence of justification, transparency and intelligibility within the decision-making process” and “whether the decision falls within a range of possible, acceptable outcomes which are de- fensible in respect of the facts and law”: Dunsmuir, above, at paragraph 47; Khosa, above, at paragraph 59.

Analysis 22 The applicant submits that he was found eligible for permanent residence under the spouse or common-law partner in Canada class in 2008, and the subsequent change in circumstances was the discovery of the marital infidelity. Therefore, the infidelity was the decisive factor that led the Immigration Officer to refuse the application. 23 The applicant submits that it is illogical to conclude that a marriage could have been entered into primarily for immigration purposes in 2006 because of an infidelity that occurred in 2008: the refusal letter, however, states that the Immigration Officer was “not satisfied that you have entered your marriage with your sponsor for genuine purposes, but primarily for immigration purposes.” 24 The applicant further submits that the justifications given for refusing the application were irrelevant to the decision. The applicant disputes the Officer’s conclusion that the affair was of long duration, and submits that the fact that a child possibly resulted from the affair is immaterial. 25 The applicant submits that the decision was based upon the moral judgment of the Officer, rather than an assessment of the genuineness of the applicant’s marriage to the sponsor. 26 Finally, the applicant submits that the decision did not give sufficient weight to the fact that the applicant and the sponsor have two children together. The applicant relies on the decision in Gill v. Canada (Minister Bustamante v. Canada (MCI) Michael A. Kelen J. 161

of Citizenship & Immigration), 2010 FC 122 (F.C.), which states at paragraph 8 that the birth of a child must be attributed great weight: “Where there is no question about paternity, it would not be unreasonable to apply an evidentiary presumption in favour of the genuineness of such a marriage.” Thus, the failure of the Officer to consider this factor constitutes a reviewable error. 27 The respondent submits that the Immigration Officer’s conclusion falls within the range of possible, acceptable outcomes. The respondent submits that the Officer is entitled to rely on rationality and common sense in assessing credibility, and the Officer’s conclusion that the marriage was not genuine was reasonable. 28 The Court agrees with the applicant that marital infidelity in 2008 would not, as a matter of logic, support the conclusion that the marriage was entered into in 2006 primarily for immigration purposes. However, the Court attributes this illogic to poor wording in the refusal letter, and notes that the Decision and Rationale states that the applicant and sponsor “are not in a genuine spousal relationship but for the purposes of immigration.” Thus, the Court interprets the Officer’s conclusion to be that the marriage may have been genuine when it was entered into, but at the time of the decision the Officer was of the opinion that the marriage was no longer genuine, but existed for the purpose of the applicant acquiring status under the Act. 29 The Court finds that the discovery of marital infidelity is relevant to the determination of whether the marriage between the applicant and sponsor is genuine. As stated in CIC’s Operation Manual, OP2: Process- ing Members of the Family Class (the Manual), the Officer must determine whether a conjugal relationship exists between the spouses. The factors relevant to this determination include the existence of monogamy and a commitment to exclusivity. 30 However, these are not the only relevant factors. The Manual de- scribes a conjugal relationship as follows: 5.25. Characteristics of conjugal relationships The word “conjugal” is not defined in legislation; however, the factors that are used to determine whether a couple is in a conjugal relationship are described in court decisions. Marriage is a status-based relationship existing from the day the marriage is legally valid until it is severed by death or divorce. A common-law relationship (and in the immigration context, a conjugal 162 IMMIGRATION LAW REPORTER 2 Imm. L.R. (4th)

partner relationship) is a fact-based relationship which exists from the day on which the two individuals can reasonably demonstrate that the relationship meets the definition set out in the Regulations. While this is a significant difference, there are many similarities in the two types of relationships. This is because of the history of the recognition in law of common-law relationships and their definition, which includes the word “conjugal.” The term “conjugal” was originally used to describe marriage. Then, over the years, it was expanded by various court decisions to describe “marriage-like” relationships, i.e., a man and a woman in a common- law relationship. With the M. v. H. decision in 1999, the Supreme Court of Canada further expanded the term to include same-sex common-law couples. The word “conjugal” does not mean “sexual relations” alone. It sig- nifies that there is a significant degree of attachment between two partners. The word “conjugal” comes from two Latin words, one meaning “join” and the other meaning “yoke,” thus, literally, the term means “joined together” or “yoked together.” In the M. v. H. decision, the Supreme Court adopts the list of factors that must be considered in determining whether any two individuals are actually in a conjugal relationship from the decision of the On- tario Court of Appeal in Moldowich v. Penttinen. They include: • shared shelter (e.g., sleeping arrangements); • sexual and personal behaviour (e.g., fidelity, commitment, feelings towards each other); • services (e.g., conduct and habit with respect to the sharing of household chores) • social activities (e.g., their attitude and conduct as a couple in the community and with their families); • economic support (e.g., financial arrangements, ownership of property); • children (e.g., attitude and conduct concerning children) • the societal perception of the two as a couple. From the language used by the Supreme Court throughout M. v. H., it is clear that a conjugal relationship is one of some permanence, where individuals are interdependent — financially, socially, emotionally, and physically — where they share household and related responsibilities, and where they have made a serious commitment to one another. Bustamante v. Canada (MCI) Michael A. Kelen J. 163

Based on this, the following characteristics should be present to some degree in all conjugal relationships, married and unmarried: • mutual commitment to a shared life; • exclusive — cannot be in more than one conjugal relationship at a time; • intimate — commitment to sexual exclusivity; • interdependent — physically, emotionally, financially, socially; • permanent — long-term, genuine and continuing relationship; • present themselves as a couple; • regarded by others as a couple; • caring for children (if there are children). 31 The Manual further sets out a detailed list of factors to be considered in assessing whether a conjugal relationship exists: 5.26. Assessment of conjugal relationships The following are key elements that officers may use to establish whether a couple is in a conjugal relationship. These apply to spouses, common-law partners and conjugal partners. a) Mutual commitment to a shared life to the exclusion of all other conjugal relationships A conjugal relationship is characterized by mutual commitment, exclusivity, and interdependence and therefore cannot exist among more than two people simultaneously. The word “conjugal” includes the requirement of monogamy and, therefore, an individual cannot be in more than one conjugal relationship at one time. For example, a person cannot have a conjugal relationship with a legally married spouse and another person at the same time. Nor can a person have a conjugal relationship with two unmarried partners at the same time. These would be polygamous-like relationships and cannot be considered conjugal. This does not, however, require that an individual in an unmarried conjugal relationship be divorced from a legally married spouse. See: What happens if the common-law partner (principal applicant) is married to another person, section 5.38 below. The requirement of exclusivity or monogamy applies in equal measure to marriage, common-law partnership and conjugal partnership. Thus, the common-law and conjugal partner categories cannot be used to get around restrictions related to bigamy and polygamy (See section 13.2 Polygamous marriages below for further information). 164 IMMIGRATION LAW REPORTER 2 Imm. L.R. (4th)

By the same token, common-law and conjugal partner relationships are not expected to be any more exclusive than ordinary married relationships. Proof of exclusivity is not usually required in the assessment of these relationships any more than it would be in assessing a marriage. b) Interdependent — physically, emotionally, financially, socially The two individuals in a conjugal relationship are interdependent — they have combined their affairs both economically and socially. The assessment of whether two individuals are in a conjugal relationship should focus on evidence of interdependency. The following list is a set of elements which, when taken together or in various combinations, may constitute evidence of interdependency. It should be kept in mind that these elements may be present in varying degrees and not all are necessary for a relationship to be considered conjugal. Factor Details Financial aspects of the rela- • Joint loan agreements for real tionship estate, cars, major household appliances; • Joint ownership of property, other durable goods; • Operation of joint bank accounts, joint credit cards evidence that any such accounts have existed for a reasonable period of time; • The extent of any pooling of financial resources, especially in relation to major financial com- mitments; • Whether one party owes any legal obligation in respect of the other. Social aspects of the relation- Evidence that the relationship ship has been declared to government bodies and commercial or public institutions or authorities and acceptance of such declarations by any such bodies; Bustamante v. Canada (MCI) Michael A. Kelen J. 165

Factor Details • Joint membership in organisations or groups, joint participation in sporting, cultural, social or other activities; • Joint travel; • Shared values with respect to how a household should be managed; • Shared responsibility for children; shared values with respect to child-rearing; willingness to care for the partner’s children; • Testimonials by parents, family members, relatives or friends and other interested parties about the nature of the relationship and whether the couple present themselves to others as partners. Statements in the form of statutory declarations are preferred. Physical and emotional aspects Knowledge of each other’s per- of the relationship -the degree sonal circumstances, background of commitment as evidenced by: and family situation; • Shared values and interests; • Expressed intention that the relationship will be long term; • The extent to which the parties have combined their affairs, for example, are they benefi- ciaries of one another’s insur- ance plans, pensions, etc.? • Joint decision-making with consequences for one partner affecting the other; 166 IMMIGRATION LAW REPORTER 2 Imm. L.R. (4th)

Factor Details • Support for each other when ill and on special occasions letters, cards, gifts, time off work to care for other; The terms of the parties’ wills made out in each other’s favour provide some evidence of an intention that the relationship is long term and permanent; • Time spent together; • Time spent with one another’s families; • Regular and continuous com- munication when apart. 32 The Manual notes that not all of the listed factors will be present to the same degree in all relationships, and not all factors are necessary for the relationship to be considered conjugal. 33 The Officer found that, because of the applicant’s relationship with another woman, the marriage was not genuine. The only countervailing factor mentioned by the Officer in her conclusion was the fact that the applicant and his sponsor were cohabiting. The Court finds that the applicant’s relationship with another woman was a relevant consideration. However, there were numerous other factors supporting a conclusion that the marriage was genuine, beyond the cohabitation of the applicant and sponsor. 34 In particular, the Officer was obliged to weigh the fact that the applicant and sponsor have two children together — one of whom was con- ceived and born after the applicant’s infidelity. The Court agrees with the applicants that this factor deserves considerable weight, and the failure to explain why it was outweighed by other factors leads to the inference that the Officer did not weigh this factor in her decision. 35 The Court also finds that the Officer’s decision does not adequately disclose the rationale for the conclusion reached. The evidence relied on in her conclusion consisted of the photographs of the applicant and another woman, and the applicant’s and sponsor’s testimony. However, the applicant and sponsor also provided extensive testimony on the fact that their marriage was genuine, in spite of the applicant’s infidelity. The Of- ficer made no negative credibility findings, and does not explain why she Bustamante v. Canada (MCI) Michael A. Kelen J. 167

accepts the applicant’s testimony regarding the affair, but not his testimony regarding the genuineness of the marriage. 36 Concluding that a marriage is not genuine has serious ramifications, and must not be undertaken lightly. This is all the more true when the couple in question has cohabited for over six years, has been married for over four years, and has two children together. In this case, the Court finds that the Officer’s decision does not have the required transparency, intelligibility and justification to satisfy the standard of reasonableness. 37 The Court notes that at the time the applicant made his application, a previous version of the Regulations was in force in which the test under section 4 was conjunctive rather than disjunctive. The applicant has not submitted to the Court that the previous version of section 4 of the Regu- lations should apply. The question of whether the new version of section 4 applies retrospectively is an important one; however, since the Court has found that the decision must be set aside even if the new version of section 4 applies, the Court will leave this question to be determined when it is material to the application at issue.

Conclusion 38 The Court finds that the Immigration Officer’s decision to refuse the application for permanent residence was unreasonable. Therefore, the judicial review must be granted, and the matter referred back for a new interview and re-determination by a different Immigration Officer. 39 No question is certified.

Judgment THIS COURT’S JUDGMENT is that the application for judicial review is granted, and the matter referred back for a new interview and redetermination by a different Immigration Officer. No question is certified. Application granted. 168 IMMIGRATION LAW REPORTER 2 Imm. L.R. (4th)

[Indexed as: Warnakulasooriy v. Canada (Minister of Citizenship & Immigration)] Fernando Warnakulasooriy, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-6439-10 2011 FC 830 Michel M.J. Shore J. Heard: July 5, 2011 Judgment: July 6, 2011 Immigration and citizenship –––– Refugee protection — Elements of pro- tected refugee status — Fear of persecution — Well-founded fear –––– Ap- plicant, citizen of Sri Lanka, arrived in Canada in 2009 and claimed refugee status — Applicant was active in politics in Sri Lanka — Applicant’s hand was badly injured in attack in retaliation for position he took in political dispute — Applicant alleged receiving death threats when he refused to be recruited by ruling political party — Applicant feared persecution if he returned to Sri Lanka — Immigration and Refugee Board (Board) found applicant to be credible but dismissed claim in part on grounds that persecution was not well- founded — Applicant applied for judicial review of decision — Application granted; matter remitted to different panel for redetermination — Applicant’s narrative listed several arrests, attacks and incidents of threats — Board had obligation to consider cumulative effects of acts of alleged persecution that applicant had faced in his political career — Board committed further error by considering each element of claim separately and not narrative as whole — Board did not consider consequences of applicant’s refusal to join political opponent — Decision demonstrated lack of reasonableness. Immigration and citizenship –––– Refugee protection — Elements of pro- tected refugee status — Protection of country of nationality — Sufficiency of state protection –––– Applicant, citizen of Sri Lanka, arrived in Canada in 2009 and claimed refugee status — Applicant was active in politics in Sri Lanka — Applicant’s hand was badly injured in attack in retaliation for position he took in dispute — Applicant alleged receiving death threats when he refused to be recruited by ruling political party — Applicant feared persecution if he returned to Sri Lanka — Immigration and Refugee Board (Board) dismissed claim in part on grounds of sufficiency of state protection — Applicant applied for judicial review of decision — Application granted — Applicant’s narrative Warnakulasooriy v. Canada (MCI) Michel M.J. Shore J. 169

listed several arrests, attacks and incidents of threats — Board had obligation to consider cumulative effects of acts of alleged persecution that applicant had faced in his political career — Board’s analysis of each element was very meticulous but did not consider consequences of applicant’s refusal to join political opponent — Evidence at time of Board’s decision indicated that Sri Lanka had numerous, grave examples of human rights abuse — There was no evidence that security forces and judiciary system could protect applicant based on his specific and non-contradicted evidence — Decision demonstrated lack of reasonableness — Matter remitted to newly constituted panel for redetermination. Cases considered by Michel M.J. Shore J.: Lai v. Canada (Minister of Employment & Immigration) (1989), 8 Imm. L.R. (2d) 245, 1989 CarswellNat 70, [1989] F.C.J. No. 826 (Fed. C.A.) — followed Retnem v. Canada (Minister of Employment & Immigration) (1991), 1991 Car- swellNat 53, 13 Imm. L.R. (2d) 317, 132 N.R. 53, [1991] F.C.J. No. 428 (Fed. C.A.) — considered Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 97 — considered

APPLICATION by applicant for judicial review of Immigration and Refugee Board’s decision dismissing applicant’s claim for refugee status.

Styliani Markaki, for Applicant Christine Bernard, for Respondent

Michel M.J. Shore J.: Overview 1 To examine core evidence in a case, piecemeal, each part out of context, not as part of an entirety, is as if a decision-maker examined a forest by looking at each tree and omitted to see the forest as a whole, thus missing the big picture. Where uncontradicted evidence, declared credible, is shredded, piecemeal, said evidence lacks understanding. 2 It is no different than dissecting a narrative, considered credible, to such a degree that it loses its overall cohesiveness and no part separately then resembles its origin as part of the whole. All of which leads to unreasonable conclusions. 3 Lai v. Canada (Minister of Employment & Immigration), [1989] F.C.J. No. 826 (Fed. C.A.) clearly states that when assessing the objec- 170 IMMIGRATION LAW REPORTER 2 Imm. L.R. (4th)

tive aspect of a claimant’s fear, the Board must consider all the evidence it finds credible to ensure that a valid analysis will have been undertaken.

Introduction 4 The Applicant is a 55-year-old citizen of Sri Lanka. 5 The Applicant arrived in Canada on February 28, 2009 and claimed refugee status on March 12, 2009. 6 The Claim of the Applicant was heard by the Immigration and Refu- gee Board in Montreal [hereinafter the Board] on August 18, 2010. A negative decision was eventually rendered on September 21st, 2010. Hence, the present Application for Judicial Review.

Background 7 The Applicant was active in politics in Chilaw from 1983 until he left Sri Lanka in February 2009. 8 First running for Council as an independent candidate in 1983, the applicant became the first inhabitant of the division to be appointed to Council. 9 In 1985, the Applicant joined the UNP. 10 In 1991, the Applicant was again elected to Council as a UNP member. 11 In 1992, he was the Council Representative in a dispute between local fishermen. When the courts found in favour of the sea beach fishermen, he was attacked in Chilaw with a sword. His right hand was badly cut, and this resulted in permanent damage to four of his fingers. 12 In 1994, as soon as the Sri Lankan Freedom Party United Front came into power, its supporters, together with the group that previously attacked the Applicant in 1992, filed 11 false cases against the Applicant. In the end, he was acquitted. 13 In 1997, the Applicant was elected Deputy Mayor in the Chilaw Ur- ban Council. This Council was the only administrative body in the dis- trict that was won by the UNP in local elections. 14 On December 5, 1997, shortly after these elections, the Applicant was arrested by the police on false allegations. The case was made public and appeared on the television news and in the papers. The Applicant remained in detention for 42 days and was then released on bail. Warnakulasooriy v. Canada (MCI) Michel M.J. Shore J. 171

15 In the 2002 elections, the Applicant was re-elected to the position of Deputy Mayor to the Chilaw Urban Council. 16 In December 2003, a group of Catholics were arrested by the navy when they were discovered on a vessel travelling to Italy, illegally. In January 2004, the Applicant was arrested on the accusation that he had helped certain members of this group. The Applicant was detained for 100 days. He was finally released on bail and on condition of reporting once a month to the CID office in Colombo. After four years, the Appli- cant was acquitted. 17 In the April 2006 elections, the UNP lost but the Applicant still won in his position as Leader of the Opposition Group to the Council. 18 In January 2007, 18 opposition members of Parliament from the UNP left the party and crossed over to the ruling party of PA. One of them was Neomal Perera who was appointed to the position of Deputy Minister of Fisheries. 19 On March 5, 2008, Perera forcibly appointed the Applicant as his advisor although the Applicant maintained his affiliation with the UNP. As a result, the Applicant found himself in a difficult position — on the one hand, his own party suspected him of being a traitor, on the other hand, the Sri Lankan Freedom Alliance party members did not trust him. 20 The Applicant began receiving anonymous calls to his home threatening him not to continue in politics. His wife was also threatened and told to leave the village. The Applicant was afraid to go fishing and the whole family was under duress. 21 On February 8, 2009 the Applicant was present during a political rally. In the midst of the rally, Perera publicly offered him the position of Mayor of the town in the next North Western Provincial Council elections which were to take place on February 14, 2009, if the Applicant would join him on the government side. 22 On the night before the elections, unknown men came to the Appli- cant’s house, fired two shots and threatened that if he worked on election day, he would be killed. 23 The Applicant obtained a Canadian visa to attend a conference in February of 2009. He arrived in Montreal on February 28, 2009 and filed a claim for refugee protection on March 12, 2009. 24 In 2010 and while in Canada, the Applicant called Perera in Sri Lanka. Perera, once again, asked him to join him if he had planned to 172 IMMIGRATION LAW REPORTER 2 Imm. L.R. (4th)

return. The Applicant believes that his absence has been a major setback for Perera who has dropped in rank/popularity. Perera became angry with the Applicant when told that the Applicant had claimed refugee status, and then, hung up on him. The Applicant believes that Perera was angry at him because the latter is aware of confidential information that the Applicant might relate to Canadian authorities. 25 The following exhibits were included in support of the present Application: a. Exhibit P-1: The Applicant’s Personal Information Form; b. Exhibit P-2: The exhibits produced by the Applicant before the Board; c. Exhibit P-3: The 2009 US Department of State Report which forms part of the package submitted by the Applicant. 26 The compilation in this case is specified in that most of the allegations of the Applicant are supported by uncontradicted comprehensive evidence.

Decision rendered by the Board 27 The tribunal found the Applicant to be credible. The tribunal noted that his testimony was “clear, detailed, honest and spontaneous” (par. 8 of the decision). 28 Nonetheless, the tribunal found that the Applicant does not have a well-founded fear of persecution should he return to Sri Lanka (par. 9 of the decision). 29 When it comes to the Applicant’s fear of unknown persons from the opposition party, the tribunal found that there was no evidence in the general documentation to support his claim that members of the opposition, PA, were actively persecuting members of the UNP (par. 13 of the decision). 30 Moreover, the tribunal found that the applicant could obtain state protection if he was to be threatened in the future by unknown thugs (pars 22-27). 31 The Applicant also did submit an article detailing the murder of a municipal opposition leader who was killed by unknown persons. The Applicant explained that he knew the individual who was an opposition leader like himself and that he feared that the same fate could befall him. Nevertheless, the tribunal found that the article does not provide a motive Warnakulasooriy v. Canada (MCI) Michel M.J. Shore J. 173

for the killing and concludes that one article does not support the applicant’s fear that he will suffer the same fate (par. 14 of the decision). 32 The tribunal also dismissed another article also submitted by the applicant which reported the release of five UNP members after an attack on a fellow UNP member. The tribunal found this to be an intra-party incident without details regarding the original situation (par. 15 of the decision). 33 The tribunal also dismissed another report because it found that it did not stand for the proposition that the police are subject to the whim of the politicians as alleged by the applicant. Instead, the tribunal found such protection is limited to members of parliament (pars 16-17 of the decision). 34 The Applicant testified that he spoke to Perera in May of 2010. Dur- ing this conversation, Perera again asked the applicant to join him and was angry when he came to know that the applicant had claimed refugee status in Canada. The tribunal found that Perera made no threats against the applicant and that there were no reasons to believe that he would be persecuted because of “secrets” of which the Applicant might be aware (par. 18 of the decision). 35 The tribunal finds that although the applicant has a subjective fear, there is insufficient objective evidence to support his fear of persecution by Perera. 36 The tribunal also dismissed the applicant’s fear of the navy because of previous charges against him which had been dropped (par. 20 of the decision). 37 In light of the above, the tribunal found that the applicant is not a person in need of protection under section 97 of the Act (pars 28-30 of the decision).

Analysis 38 The Court agrees with the position of the applicant and finds the tribunal has erred by not evaluating the cumulative effect of what the Ap- plicant has experienced in addition to the specific events that led to his decision to claim refugee status. This is an error of analysis as the tribunal was satisfied with the Applicant’s credibility. 39 The uncontradicted narrative must be recalled. 174 IMMIGRATION LAW REPORTER 2 Imm. L.R. (4th)

40 In 1992, he was the Council Representative in a dispute between local fishermen. When the courts found in favour of the sea beach fishermen, he was attacked in Chilaw with a sword. His right hand was badly cut, and this resulted in permanent damage to four of his fingers. 41 In 1994, as soon as the Sri Lankan Freedom Party United Front came into power, its supporters, together with the group that previously attacked the Applicant in 1992, filed 11 false cases against the Applicant. In the end, he was acquitted. 42 On December 5, 1997, shortly after the elections in the same year, the Applicant was arrested by the police on false allegations. The case was made public and appeared on the television news and in the papers. The Applicant remained in detention for 42 days and was then released on bail. 43 In December 2003, a group of Catholics were arrested by the navy which discovered that they were on a vessel travelling to Italy illegally. In January 2004, the Applicant was arrested on the accusation that he had assisted members of the group. The Applicant was then detained for 100 days and released on bail and on condition of reporting once a month at the CID office in Colombo. After four years, the Applicant was acquitted. 44 After Perera appointed the Applicant as his advisor on March 5, 2008, the Applicant began receiving anonymous threatening calls. 45 On February 13, 2009, one day before the elections, at night, some thugs came to the Applicant’s house, fired two shots and threatened him that if he worked on election day, he would be killed. 46 In light of the above, the tribunal had an obligation to consider the cumulative effects of all the acts of alleged persecution that the Appli- cant has faced during his political career. The failure to do so amounts to an error in law, the whole in accordance with Retnem v. Canada (Minister of Employment & Immigration) (1991), 13 Imm. L.R. (2d) 317 (Fed. C.A.). 47 The tribunal has committed a further error by considering each element of the Applicant’s claim separately and not in combination with others so as to conceive of the Applicant’s narrative as a whole. 48 The tribunal finds that the Applicant would be able to obtain state protection against the threats by the unknown persons (pars 22-27 of the decision); however, the tribunal also acknowledges documentation which states that the degree of protection afforded to MPs is subject to “the Warnakulasooriy v. Canada (MCI) Michel M.J. Shore J. 175

whim of the government” (at par. 16 of the decision). The Applicant is clearly not in good terms with the ruling party and has refused their attempts to recruit him. In this situation, he has good reason to question whether he would be able to obtain state protection in the future against further threats. 49 Actually, the Applicant has no way of knowing whether “unknown thugs” making threats against him and firing shots outside his house are not in fact connected to the authorities; the government has been linked to paramilitary groups which are believed to be responsible for human rights abuses. [For example, please see Introductory section of 2009 US Department of State report, submitted herein as Exhibit P-3]. 50 As already stated, the Board found that the Applicant could obtain state protection against the threats by unknown persons. The tribunal wrote that Sri Lanka is a functioning democracy with two major elections held in 2010. In May 2009, government forces defeated the LTTE after more than 25 years of conflict. The tribunal found that the situation is not perfect but that human rights violations pertain primarily to events which led to and followed the defeat of the LTTE (par. 25 of the decision). 51 Essential to this case is the evidence at the time in question. The 2009 US Department of State report has been submitted herein as Exhibit P-3; and, it contains numerous significant grave examples of human rights abuses committed after May 2009. 52 Annual reports for 2010, at the time of the hearing, were not yet available and there is therefore no actual documentary basis for finding that there had been significant changes in country conditions. Improve- ments would have occurred following the end of the war, however, that does not in itself mean that the security forces and judiciary system in Sri Lanka were, or are able, to protect the Applicant based on his specific uncontradicted evidence. 53 Moreover, although the tribunal had conducted a very meticulous separate analysis of each element raised by the Applicant, the tribunal has not actually paused to consider the consequences (as a whole) of the Applicant’s refusal to join Perera’s side after the latter had made considerable efforts to recruit him and have him cross the floor from the UNP side. 176 IMMIGRATION LAW REPORTER 2 Imm. L.R. (4th)

Conclusion 54 In light of the above, as the decision demonstrates a lack of reasonableness, the present Application for Judicial Review is granted.

Judgment THIS COURT’S JUDGMENT is that the judicial review be granted. Therefore, the file is to be returned to the Board to be redetermined anew by a newly constituted panel. No question for certification. Application granted; matter remitted to newly constituted panel for redetermination.