IMMIGRATION LAW REPORTER Fourth Series/Quatri`eme s´erie Recueil de jurisprudence en droit de l’immigration VOLUME 38 (Cited 38 Imm. L.R. (4th))

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[Indexed as: R. v. Shenandoah] Her Majesty the Queen and Alicia Shenandoah, Elaine Thompson Ontario Court of Justice Docket: Cornwall 13-C340 2015 ONCJ 541 P. Griffiths J. Judgment: October 2, 2015 Immigration and citizenship –––– Constitutional issues — Miscellane- ous –––– Accused were charged separately with aiding and abetting others to enter Canada without appearing for examination before Canada Border Services Officer contrary to s. 124(1)(a) of Immigration and Refugee Protection Act — Accused brought application of constitutional question alleging that accused had aboriginal right of mobility to travel freely within Mohawk territory without re- quirement to report in person and that s. 18(1) of Act violated s. 15 and s. 7 of Canadian Charter of Rights and Freedoms — Application dismissed — There was no violation of s. 15 of Charter — Applicants did not demonstrate that Act created distinction based on enumerated or analogous ground — Many residents of Mohawk lands were not only proud Aboriginals, but they were also Canadi- ans entitled to same protection of their lands from smuggling of illegal goods or illegal aliens as any other Canadians — To permit reporting system that pro- vided inadequate protection would have itself become discriminatory act if adopted Canada Border Services Agency — There was no violation of s. 7 of Charter — While liberty of applicants was at risk by operation of s. 18(1) of Act, that section complied with fundamental principles of justice — Minimal in- trusion involved in requiring people entering Canada to report in person was entirely consistent with principles of fundamental justice when balanced against societal interest in maintaining integrity of Canada’s borders. Aboriginal law –––– Miscellaneous –––– Mobility rights — Immigration law — Accused were charged separately with aiding and abetting others to enter Can- ada without appearing for examination before Canada Border Services Officer contrary to s. 124(1)(a) of Immigration and Refugee Protection Act — Accused 2 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th) brought application of constitutional question alleging that accused had aborigi- nal right of mobility to travel freely within Mohawk territory without require- ment to report in person and that s. 18(1) of Act violated s. 15 and s. 7 of Cana- dian Charter of Rights and Freedoms — Application dismissed — Applicants failed to establish aboriginal right to mobility for purposes of travelling within Akwesasne territory without reporting without delay for examination to port of entry — Particular purpose that accused were pursuing was murky at best as each dropped off their daughter on island after crossing international bridge as it was inconvenient to report at bridge before dropping daughters off — Mobility for purpose of community or family purpose was too vague to constitute aborigi- nal right and further, that if it was aboriginal right, applicants could not benefit from it on facts of case. Constitutional law –––– Charter of Rights and Freedoms — Nature of rights and freedoms — Mobility rights — General principles –––– Accused were charged separately with aiding and abetting others to enter Canada without ap- pearing for examination before Canada Border Services Officer contrary to s. 124(1)(a) of Immigration and Refugee Protection Act — Accused brought appli- cation of constitutional question alleging that accused had aboriginal right of mobility to travel freely within Mohawk territory without requirement to report in person and that s. 18(1) of Act violated s. 15 and s. 7 of Canadian Charter of Rights and Freedoms — Application dismissed — Applicants failed to establish aboriginal right to mobility for purposes of travelling within Akwesasne territory without reporting without delay for examination to port of entry — Particular purpose that accused were pursuing was murky at best as each dropped off their daughter on island after crossing international bridge as it was inconvenient to report at bridge before dropping daughters off — Mobility for purpose of com- munity or family purpose was too vague to constitute aboriginal right and fur- ther, that if it was aboriginal right, applicants could not benefit from it on facts of case. Constitutional law –––– Charter of Rights and Freedoms — Nature of rights and freedoms — Equality rights — Miscellaneous –––– Accused were charged separately with aiding and abetting others to enter Canada without ap- pearing for examination before Canada Border Services Officer contrary to s. 124(1)(a) of Immigration and Refugee Protection Act — Accused brought appli- cation of constitutional question alleging that accused had aboriginal right of mobility to travel freely within Mohawk territory without requirement to report in person and that s. 18(1) of Act violated s. 15 and s. 7 of Canadian Charter of Rights and Freedoms — Application dismissed — There was no violation of s. 15 of Charter — Applicants did not demonstrate that Act created distinction based on enumerated or analogous ground — To permit reporting system that provided inadequate protection would have itself become discriminatory act if adopted Canada Border Services Agency. R. v. Shenandoah 3

Constitutional law –––– Charter of Rights and Freedoms — Nature of rights and freedoms — Life, liberty and security — Miscellaneous –––– Accused were charged separately with aiding and abetting others to enter Canada without appearing for examination before Canada Border Services Officer contrary to s. 124(1)(a) of Immigration and Refugee Protection Act — Accused brought appli- cation of constitutional question alleging that accused had aboriginal right of mobility to travel freely within Mohawk territory without requirement to report in person and that s. 18(1) of Act violated s. 15 and s. 7 of Canadian Charter of Rights and Freedoms — Application dismissed — There was no violation of s. 7 of Charter — While liberty of applicants was at risk by operation of s. 18(1) of Act, that section complied with fundamental principles of justice. Cases considered by P. Griffiths J.: Droit de la famille - 091768 (2013), 2013 SCC 5, 2013 CarswellQue 113, 2013 CarswellQue 114, 21 R.F.L. (7th) 1, 354 D.L.R. (4th) 191, (sub nom. A. v. B.) 439 N.R. 1, [2013] S.C.J. No. 5, (sub nom. Quebec (Attorney General) v. A.) 273 C.R.R. (2d) 1, (sub nom. Quebec (Attorney General) v. A.) [2013] 1 S.C.R. 61 (S.C.C.) — followed Marshall v. Canada (1999), 1999 CarswellNS 262, 1999 CarswellNS 282, (sub nom. R. v. Marshall) [1999] S.C.J. No. 55, (sub nom. R. v. Marshall) 177 D.L.R. (4th) 513, (sub nom. R. v. Marshall) 246 N.R. 83, (sub nom. R. v. Marshall) 138 C.C.C. (3d) 97, (sub nom. R. v. Marshall) [1999] 4 C.N.L.R. 161, (sub nom. R. v. Marshall) 178 N.S.R. (2d) 201, (sub nom. R. v. Mar- shall) 549 A.P.R. 201, (sub nom. R. v. Marshall) [1999] 3 S.C.R. 456 (S.C.C.) — considered Mitchell v. Minister of National Revenue (2001), 2001 SCC 33, 2001 Car- swellNat 873, 2001 CarswellNat 874, (sub nom. Mitchell v. M.N.R.) 199 D.L.R. (4th) 385, (sub nom. Mitchell v. M.N.R.) 83 C.R.R. (2d) 1, 269 N.R. 207, (sub nom. Mitchell v. M.N.R.) [2001] 3 C.N.L.R. 122, (sub nom. Mitchell v. M.N.R.) [2001] 1 S.C.R. 911, [2001] S.C.J. No. 33, 206 F.T.R. 160 (note), [2002] 3 C.T.C. 359, REJB 2001-24177, 2001 CSC 33 (S.C.C.) — followed New Brunswick (Minister of Health & Community Services) v. G. (J.) (1999), 1999 CarswellNB 305, 1999 CarswellNB 306, [1999] S.C.J. No. 47, 26 C.R. (5th) 203, 244 N.R. 276, 177 D.L.R. (4th) 124, 50 R.F.L. (4th) 63, 66 C.R.R. (2d) 267, 216 N.B.R. (2d) 25, 552 A.P.R. 25, [1999] 3 S.C.R. 46, 7 B.H.R.C. 615, REJB 1999-14250, [1999] A.C.S. No. 47 (S.C.C.) — followed R. c. Adams (1996), 202 N.R. 89, 138 D.L.R. (4th) 657, 110 C.C.C. (3d) 97, [1996] 3 S.C.R. 101, [1996] 4 C.N.L.R. 1, 1996 CarswellQue 912, 1996 Car- swellQue 913, EYB 1996-67909, [1996] S.C.J. No. 87 (S.C.C.) — considered R. v. Jones (2006), 2006 CarswellOnt 4972, 214 O.A.C. 225, 211 C.C.C. (3d) 4, 81 O.R. (3d) 481, 41 C.R. (6th) 84, 144 C.R.R. (2d) 96, [2006] O.J. No. 3315 (Ont. C.A.) — followed 4 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

R. v. Oakes (1986), [1986] 1 S.C.R. 103, 26 D.L.R. (4th) 200, 65 N.R. 87, 14 O.A.C. 335, 24 C.C.C. (3d) 321, 50 C.R. (3d) 1, 19 C.R.R. 308, 1986 Cars- wellOnt 95, 1986 CarswellOnt 1001, [1986] S.C.J. No. 7, EYB 1986-67556, 53 O.R. (2d) 719 (note) (S.C.C.) — followed R. v. Simmons (1988), 66 C.R. (3d) 297, [1988] 2 S.C.R. 495, 55 D.L.R. (4th) 673, 89 N.R. 1, 30 O.A.C. 241, 45 C.C.C. (3d) 296, 38 C.R.R. 252, (sub nom. Simmons v. R.) 2 T.C.T. 4102, 67 O.R. (2d) 63, (sub nom. Simmons v. R.) 18 C.E.R. 227, 1988 CarswellOnt 91, 1988 CarswellOnt 968, [1988] S.C.J. No. 86, EYB 1988-67476 (S.C.C.) — considered R. v. Vanderpeet (1996), [1996] 9 W.W.R. 1, 23 B.C.L.R. (3d) 1, 50 C.R. (4th) 1, (sub nom. R. v. Van der Peet) 137 D.L.R. (4th) 289, (sub nom. R. v. Van der Peet) 109 C.C.C. (3d) 1, (sub nom. R. v. Van der Peet) 200 N.R. 1, (sub nom. R. v. Van der Peet) 80 B.C.A.C. 81, (sub nom. R. v. Van der Peet) 130 W.A.C. 81, (sub nom. R. v. Van der Peet) [1996] 2 S.C.R. 507, (sub nom. R. v. Van der Peet) [1996] 4 C.N.L.R. 177, 1996 CarswellBC 2309, 1996 Car- swellBC 2310, [1996] S.C.J. No. 77, EYB 1996-67132 (S.C.C.) — followed Withler v. Canada (Attorney General) (2011), 2011 SCC 12, 2011 CarswellBC 379, 2011 CarswellBC 380, 87 C.C.P.B. 161, [2011] 4 W.W.R. 383, 15 B.C.L.R. (5th) 1, 329 D.L.R. (4th) 193, D.T.E. 2011T-181, 412 N.R. 149, 300 B.C.A.C. 120, 509 W.A.C. 120, [2011] 1 S.C.R. 396, [2011] S.C.J. No. 12, 229 C.R.R. (2d) 329 (S.C.C.) — referred to Statutes considered: Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 Generally — referred to s. 1 — considered s. 2(d) — considered s. 7 — considered s. 8 — considered s. 15 — considered s. 15(1) — considered Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11, reprinted R.S.C. 1985, App. II, No. 44 s. 35(1) — considered Immigration and Refugee Protection Act, S.C. 2001, c. 27 Generally — referred to s. 18(1) — considered s. 124(1) — considered s. 124(1)(a) — considered s. 125(b) — considered R. v. Shenandoah P. Griffiths J. 5

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

APPLICATION by accused of constitutional question alleging that accused had aboriginal right of mobility to travel freely within Mohawk territory without re- quirement to report in person and that s. 18(1) of Immigration and Refugee Pro- tection Act violated s. 15 and s. 7 of Canadian Charter of Rights and Freedoms.

Mr. M. Pare, Ms L. Bianchi, for Federal Crown Mr. G. Campbell, Mr. A. Unger, for Defendants, Alicia Shenandoah and Elaine Thompson

P. Griffiths J.:

1 Alicia Shenandoah and Elaine Thompson were separately charged on different dates with aiding and abetting others to enter Canada without appearing forthwith for examination before a Canada Border Services Officer contrary to section 124(1)(a) of the Immigration and Refugee Protection Act (IRPA) An Application of Constitutional Question was brought by counsel for Ms. Shenandoah and Ms. Thompson seeking re- lief from the operation of section 18(1) of IRPA. At the request of coun- sel and with the consent of the Crown, the Application and the evidence called on the Application will apply to each of the two defendants. 2 The Application is brought under sections 35(1) Constitution Act, 1982 and sections 15, 7, and 2(d) of the Canadian Charter of Rights and Freedoms (the Charter). The Applicants claim an aboriginal right to mo- bility to travel freely within Mohawk territory at Akwesasne for family and community purposes without a requirement to report in person at the Cornwall Port of Entry. They further assert under section 15 of the Char- ter that section 18(1) of IRPA is discriminatory with respect to the people of Akwesasne generally and them in particular. They maintain that their liberty is infringed by the requirements of section 18(1) and that this in- fringement is not saved by reference to the principles of fundamental jus- tice. Finally, the parties allege that being required to report at the Port of Entry without delay restricts their freedom of association. For the reasons that follow, this Application is dismissed. 6 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

1: Overview 3 Section 18(1) of IRPA reads as follows: Every person seeking to enter Canada must appear for an examina- tion to determine whether that person has a right to enter Canada or is or may become authorized to enter or remain in Canada. 4 The section is further elaborated by operation of section 27 of the regulations under IRPA which sets out the manner and timing of the duty to report as follows: 27(1) Unless these Regulations provide otherwise, for the purposes of the examination required by subsection 18(1) of this Act, a person must appear without delay before an officer at a Port of Entry. (2) Unless these Regulations provide otherwise, a person who seeks to enter Canada at a place other than a Port of Entry must appear without delay for examination at the Port of Entry that is nearest to that place. 5 The penalty for breaching these sections is found at section 124 (1) of the Act: 124(1) Every person commits an offence who (a) Contravenes a provision of this Act for which a penalty is not specifically provided fails to comply with a condition or obli- gation under this Act. 6 The offence is hybrid and in the cases before the Court, the Crown elected to proceed summarily. Under section 125(b), the maximum pen- alty is a fine of not more than $10,000 or imprisonment for six months or both. 7 The geopolitical setting of the Akwesasne reserve is complex and is central to this Application. Akwesasne is found south of the City of Cornwall. Cornwall Island (Ontario Reserve No. 59) is in the middle of the St. Lawrence River south of Cornwall. The city and Cornwall Island (“Kawehnoke”) are connected by the “Three Nations Bridge”. Cornwall Island is connected to the south shore of the St. Lawrence River by the “International Bridge”. As the name suggests, the bridge connects the mainland of the United States with Canada. The border divides that bridge. Akwesasne continues in New York State around the town of Hogansburg as the Akwesasne Reservation. North of Hogansburg is found the international border between the Province of Quebec and New York State. North of that border, in Quebec, is found Akwesasne Reserve No. 15 which encompasses the districts of St. Regis Village (“Kanatakon”) and the Chenail (“Tsi-Snaihne”). In the result, the R. v. Shenandoah P. Griffiths J. 7

Mohawks of Akwesasne can be found in the Provinces of Quebec and Ontario, New York State, Canada and the United States. 8 Many Mohawks reside in the Mohawk Reservation in the United States but work or have family or attend community or cultural events on the Reserves in Canada. They must cross the border frequently and for many Mohawks, the border is crossed many times in a single day. Sev- enty per cent of the border crossings at the Cornwall Port of Entry are made by Mohawks of Akwesasne. 9 The Port of Entry highway corridor runs directly between the two bridges and is intersected in the middle of the Island by a main east-west roadway. The roadway leads to all residential, commercial, cultural, and social services on the Island. All people coming onto the Island from the south are required to go directly to the Port of Entry on the north shore of the St. Lawrence River in the City of Cornwall. Thus before turning onto the east-west roadway, one would have to pass the intersection, cross the Three Nations Bridge, and appear before a Border Services Officer (BSO) for examination. At peak times in 2011 and 2013, wait times at the Port of Entry could exceed one hour and at all times some waiting was required. For those whose final destination was on Cornwall Island, after the wait they would turn around and retrace their journey to the crossroad. This arrangement was very inconvenient and disruptive to the residents of Akwesasne.

2: Alicia Shenandoah and Elaine Thompson 10 On August 30, 2011, Alicia Shenandoah was travelling with her young daughter, her cousin Honey Myers and two others from her home on the Mohawk Reservation in New York State to attend a lacrosse match at an arena in Canada on Cornwall Island. To attend the match, she had to cross the international border and was thus required to attend without delay at the Port of Entry in the City of Cornwall before re- turning to the Island to attend the event. As she approached the intersec- tion with the crossroads leading to the lacrosse arena, Honey Myers told her she did not have the proper identification on her person to submit at the Port of Entry. She asked Ms. Shenandoah to proceed directly to the arena where she hoped to meet a friend who had her identification. Ms. Shenandoah complied with this request. On arrival at the arena, Ms. My- ers said she would simply get out there and avoid attending at the border. Ms. Shenandoah’s young daughter was very restless in the car and she too was dropped off. Ms. Shenandoah then proceeded to the border 8 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

where she was charged with aiding and abetting Honey Myers and Tara Myers, her daughter, to enter Canada without appearing for examination by a Border Service Officer. Ms. Myers was not a resident of Akwesasne nor was she a Mohawk, although she was a member of the Iroquois Confederacy. 11 Elaine Thompson was employed on January 18, 2013 at Cornwall Vocational Secondary School in the City of Cornwall. She resided in New York State on the Mohawk territory with her teenage daughter. She and her husband were living apart. On that day, she was getting ready to go to work and had arranged for her husband to pick up her daughter to take her to school. Her husband called to say he could not pick up the daughter and asked Ms. Thompson to drop the daughter off at his house so that she could use his car to drive herself to school. Ms. Thompson feared that she would be late for work if she drove her daughter to the Port of Entry for examination then returned to the husband’s residence to drop her off, then returned again to the Port of Entry to proceed into the City of Cornwall. She decided to drop off her daughter before proceeding to the Port of Entry and thus aided and abetted her daughter to enter Canada without appearing for examination. 12 Both Ms. Shenandoah and Ms. Thompson had their vehicles im- pounded as an administrative penalty until they paid fines in the amount of $1000.00 and were also charged with the offences before the Court. I have heard the evidence against them on each of the charges and have ruled that if this Application is unsuccessful, there will be a finding of guilt made against each.

3: Aboriginal Right to Mobility Under Section 35(1) 13 The specific framing of the aboriginal right sought to be established changed several times over the course of the trial. The right was fre- quently framed as a right to mobility, or a right to cross the international border without reporting to a Border Service Officer (BSO). In the Ap- plicant’s factum, the right asserted is defined as “a right of mobility and access within their traditional territory, and more specificially with re- spect to their three districts (Kawehnoke, Tsi-Snaihne, and Kana:takon), for social, economic, harvesting, trade, community, and spiritual pur- poses. The infringement of the right in question is the requirement that members of the Mohawks of Akwesasne must report in person in Corn- wall each and every time that they travel to Kawehnoke “[Cornwall Is- land].” In final submissions, counsel for the defendants acknowledged R. v. Shenandoah P. Griffiths J. 9

that the particular facts surrounding the charges against Ms. Shenandoah and Ms. Thompson do not engage social, economic, harvesting, trade, or spiritual issues. The right sought, then is to freely travel within the terri- tory of Akwesasne for family or community purposes without reporting, without delay in person to Canada Border Services at the Port of Entry. This is the mobility right that will be examined below.

3.1: The Law and s. 35(1) 14 Section 35(1) of the Constitution Act, 1982 provides the following: 35(1) The existing aboriginal and treaty rights of the aboriginal peo- ples of Canada are hereby recognized and affirmed. 15 The Applicants assert an aboriginal right to mobility for family and community purposes, but they make no claim to a treaty right to mobility for the Mohawks of Akwesasne. In R. v. Vanderpeet, [1996] 2 S.C.R. 507 (S.C.C.) Chief Justice Lamer set out the following tests to determine whether an aboriginal right claimed will be recognized under s. 35(1): Para 46 “...in order to be an aboriginal right an activity must be an element of a practice, custom or tradition integral to the distinctive culture of the aboriginal group.”; Para 51 “The correct characterization of the appellant’s claim is of importance because whether or not the evidence supports the appel- lant’s claim will depend, in significant part, on what, exactly, that evidence is being called to support.”; Para 55 “He or she must demonstrate, in other words, that the prac- tice, custom or tradition was one of the things which made the cul- ture of the society distinctive — that it was one of the things that truly made the society what it was.”; Para 60 “The time period that a court should consider in identifying whether the right claimed meets the standard of being integral to the aboriginal community claiming the right is the period prior to contact between aboriginal and European societies.....it is to that pre-contact period that the courts must look in identifying aboriginal rights.”;’ Para 69 “Courts considering a claim to the existence of an aboriginal right must focus specifically on the practices, customs and traditions of the particular aboriginal group claiming the right.”; and, finally, Para 70 “The practice, custom or tradition cannot exist simply as an incident to another practice, custom or tradition but must rather be itself of integral significance to the aboriginal society.”. 16 For a particular activity to rise to the level of a constitutionally pro- tected aboriginal right, the test set out in Vanderpeet requires that each of 10 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

the following criteria be established by the Applicant on a balance of probabilities: 1. The practices, customs and traditions said to be aboriginal rights must have continuity with those that existed prior to contact. 2. The practice, custom, or tradition must be of central significance to the aboriginal society in question. 3. The existence of an aboriginal right depends “entirely on the prac- tices, customs and traditions of the particular aboriginal commu- nity claiming the right”; Vanderpeet para 69. 4. The practice, custom or tradition relied cannot exist as an incident of another practice, custom or tradition but must itself be of inte- gral significance. 17 Chief Justice Lamer further reminds Courts to approach the rules of evidence in light of the difficulties inherent in adjudicating historical is- sues where written records are absent. 18 In R. c. Adams, [1996] 3 S.C.R. 101 (S.C.C.) the Supreme Court of Canada recognized the Mohawks of Akwesasne as an aboriginal people that could appropriately make a claim for an aboriginal right. In that case, the Mohawks of Akwesasne were granted fishing rights on Lake St. Francis as an aboriginal right. Thus, they are a people who can claim an aboriginal right in the place they are now found at Akwesasne. Whether the claim to a right of mobility meets the other tests set out by Justice Lamer will be considered next. To ensure that the right claimed is thor- oughly considered, I will address each of the four criteria although any single one is dispositive of this part of the Application.

3.2: Is mobility for family or community purposes a practice, custom or tradition that existed prior to contact? 19 In 1609, Champlain made his second trip to the Montreal area and counsel agree that this date be used to designate the time of first contact with the Mohawks of the Iroquois Confederacy. I had the benefit at trial of both written reports and extensive testimony from three experts in precontact and post-contact aboriginal life along the St. Lawrence River. Professor Francis Scardera is an archeologist who has specialized in ab- original archeology in upstate New York, eastern Ontario and Western Quebec. Professor Jon Parmenter of Cornell University and Professor Alain Beaulieu of the Universit´e du Quebec are both historians who have R. v. Shenandoah P. Griffiths J. 11

studied and written extensively about aboriginal life in the period leading up to and post-contact. 20 Professor Scardera testified that there has been an aboriginal presence on the north and south shores of the St. Lawrence River for thousands of years. The archeological record shows settlements along the River that were inhabited by a tribe now called the Iroquoians or the Laurentian Iroquois. This tribe was related linguistically to many other tribes includ- ing the Hurons, the Cherokee, and the tribes of the Iroquois Confederacy. While there is an ancestral linguistic root connecting all these tribes, they are culturally distinct. 21 When Cartier first sailed up the St. Lawrence River in 1534, he found two settlements inhabited by Laurentian Iroquois in the Montreal area. When Champlain returned in 1603, there was no sign of the settlements or of the people. Historians now believe that in the intervening years, several aboriginal tribes seeking to control access to European trading waged war all along the St. Lawrence River. By the time Champlain ar- rived, the Laurentian Iroquois had been defeated and the tribe wiped out or absorbed into other tribes. They no longer had a distinct identity. 22 The absorption of the Laurentian Iroquois as refugees from the war zone or as spoils of war was carried out by the Huron and the Abenaki tribes as well as the Mohawks. At the time of contact, the Mohawk homeland was found along the Mohawk River west of present day Al- bany. There was evidence from Professor Parmenter, that I accept, that the Mohawks at the time of contact were very mobile. They travelled extensively when at peace with the other tribes for the purposes of trade and diplomacy. At the time of contact, they were travelling to make war. Professor Scardera testified that there is no archeological evidence of Mohawk settlements in the area of Akwesasne or, indeed, anywhere along the St. Lawrence River, at the time of contact. The practice of the Mohawk to travel considerable distances for the purposes of hunting was relied upon to claim a Mohawk presence at or near Akwesasne. The claim is based on non-exclusive usage of the land and not occupancy or settlement. 23 Modern Mohawks further assert aboriginal rights along the St. Law- rence River acquired from the defeated Laurentian Iroquois. It is asserted that when the Mohawks absorbed some Laurentian Iroquois members into their tribe as refugees or prisoners, the Mohawks became entitled to claim all aboriginal rights enjoyed by the defeated tribe including a right to freely and frequently cross the St. Lawrence River in the area of 12 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

Akwesasne. They refer to the Laurentian Iroquois as their ancestors. Thus, their claimed mobility right to freely cross what is now the interna- tional border is derived principally from a right they say is derived from the rights of the extinct Laurentian Iroquois tribe. 24 There is scant evidence of the number of Laurentian Iroquois ab- sorbed into the Mohawk tribe. Professor Scardera testified to archeologi- cal discoveries of Laurentian Iroquois pot shards in the Mohawk home communities along the Mohawk River. These pot shards are a very small minority of the total shards recovered and would support an inference that the number of Laurentian Iroquois absorbed was not large. Interest- ingly, Professor Beaulieu testified that significant numbers of Laurentian Iroquois were absorbed into Huron communities north of the St. Law- rence River. The Onondaga tribe around Ogdensburg also absorbed Lau- rentian Iroquois prisoners or refugees. While the evidence is overwhelm- ing that there was a significant aboriginal presence on both shores of the St. Lawrence River and that those pre-contact people undoubtedly crossed the present day border for spiritual and trade purposes, there is not sufficient evidence to establish a link between the Mohawk tribe and the Laurentian Iroquois. I do not find the evidence sufficient on a balance of probabilities to establish the Mohawk tribe as the heirs and benefi- ciaries of any legal rights flowing from the practices, customs and tradi- tions of the Laurentian Iroquois. 25 As mentioned above, at the time of contact, there was no Mohawk settlement at or near present day Akwesasne territory. While there is some dispute as to the founding of the first postcontact community at Akwesasne, the accepted date is 1754 and it was no earlier than 1748. 26 At the time of contact, there is no evidence of regular crossing of the St. Lawrence River in the vicinity of Akwesasne by Mohawk. In R. c. Adams, the Supreme Court of Canada found that there was sufficient use of Lake St. Francis by the Mohawk to warrant a finding of a modern day aboriginal right held by the Mohawk of Akwesasne to fish there. That finding was based on evidence that Mohawks at around the time of con- tact regularly visited the St. Lawrence River to pursue acts of war with other competing tribes. The fish would be taken to sustain warriors while waging that war. There was no finding in Adams that the Mohawks of the day were regularly engaged in north-south travel across the St. Lawrence River. Professor Parmenter testified at length about the importance of mobility to the Mohawk way of life, but conceded that there would only have been occasional border crossings. In my view, the occasional nature R. v. Shenandoah P. Griffiths J. 13

of such crossings would not raise them to the level of a practice, custom, or tradition at the time of contact. 27 Further, while much of the evidence at trial addressed whether there was a Mohawk aboriginal right to mobility per se, as indicated above, the Applicants ultimately particularized their claim as an aboriginal right to travel freely for family or community purposes within the territory of Akwesasne without reporting in person at the border. There is no evi- dence of any women accompanying Mohawk warriors to the area of Akwesasne around the time of contact for the purposes of supporting the warriors as they waged war. There is no evidence of any Mohawk travel across the St. Lawrence River at the time of contact for family purposes. There is no evidence that travel for family purposes across the St. Law- rence River was a custom, practice or tradition by Mohawks pre-contact. In the absence of any such evidence, that disposes of the Application with respect to an aboriginal right to travel freely within the Akwesasne territory for family purposes without reporting for examination at the Cornwall Port of Entry.

3.3: Is travel within the Akwesasne territory without reporting in person at the border for community purposes a practice, tradition or custom central significance to the Mohawk people of Akwesasne? 28 The freedom to travel anywhere in the Akwesasne territory is a tradi- tion of central importance to the Mohawks of Akwesasne. Those that live on Cornwall Island may need to travel to St. Regis to see friends or fam- ily or visit the offices of the Mohawk Council of Akwesasne. To return home, they would have to cross the international border and, pursuant to s. 18(1), report to the Port of Entry before returning home. There are also those who live in Quebec or New York State territory off of Cornwall Island who may need to attend a health clinic, an elementary school, or the sporting arena but are required to factor into their journey a trip to the Port of Entry with, at the time of the offences, an uncertain wait time. Many residents, including Grand Chief Mitchell, testified about the nega- tive impact the in-person reporting requirement has had on daily life in Akwesasne. I find that the possibility of long waits at the border at the time of the offences interfered in a significant way with many aspects of community life. 29 Was travel within the Akwesasne territory without reporting in person at the Port of Entry a part of the specific history of the Akwesasne Mo- hawk? The historical context of cross border travel at the area of Corn- 14 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

wall must be considered when assessing whether there is an aboriginal right attached to the Akwesasne Mohawks entitled to constitutional pro- tection. The occasional crossing of the border that I found at the time of contact related to usage of the land, not settlement. It is impossible to say how often the St. Lawrence River was crossed in this area by Mohawks residing in the Mohawk River Valley for the purposes of trade, diplo- macy, or war. There is no evidence of the continuity of this practice fol- lowing the establishment of St. Regis mission in 1754. There is no evi- dence of the Mohawks living in the United States traveling freely through Akwesasne territory without reference to the Canadian border. There is a great deal of evidence of the practice of reporting without inci- dent for the long period the Port of Entry was located on Cornwall Island between the southern shore of Cornwall Island and the east-west cross- roads in the middle of the Island. 30 At the outset of the Application, counsel for Ms. Shenandoah and Ms. Thompson conceded that Canada was entitled as a sovereign nation to control the flow of goods and people entering Canada. The argument was framed not as the right to evade reporting to the Canadian Border author- ities while traveling within the Akwesasne territory, but rather as the right to avoid reporting in person. 31 In my view, this particularization too finely defines the right sought. When Donald Marshall was fishing for eels without a licence and selling them without a licence, the aboriginal right sough was not limited to commercial trade in eels. The right sought and found was a right to fish generally — not only for eels: Marshall v. Canada, [1999] 3 S.C.R. 456 (S.C.C.). Chief Justice McLaughlin addresses this issue in Mitchell in para. 15: The right claimed must be characterized in context and not dis- torted to fit the desired result. It must be neither artificially broadened nor narrowed. There is no evidence that Honey Myers sought to use an alternative form of reporting by telephone or electronic means to the Port of Entry. There is no evidence that either of the daughters of Ms. Shen- andoah or Ms. Thompson attempted to report by an alternate means to in-person reporting. An aboriginal right to mobility within Akwesasne territory, without reference to the requirements of s. 18(1), while inside the Akwesasne Canadian-U.S. territory is the proper way to frame the right sought. This is particularly true given that there are no alternative means of reporting available to a community the size of Akwesasne. Ac- cording to the evidence of numerous witnesses from the Canada Border Service Agency, this was true at all times up to and including June, 2015. R. v. Shenandoah P. Griffiths J. 15

32 I find that the right sought here is too narrow. It reflects an attempt at limitation similar to the right to pass freely across the border to trade goods with other native people that was sought by Grand Chief Mitchell in Mitchell v. Minister of National Revenue, [2001] 1 S.C.R. 911 (S.C.C.) at p. 933. In that case, Chief Justice McLaughlin reframed the right sought to be recognized as it had been too narrowly framed. I would do the same here for the same reason. 33 Properly framed, the aboriginal right would be a right to mobility within Akwesasne territory without the requirement of reporting at the Port of Entry. This right would not encompass travel onto the north shore of the St. Lawrence River without reporting. It was conceded here that Akwesasne travellers crossing to the north shore of the St. Lawrence River must report without delay and in person at the Port of Entry.

3.4: The existence of an aboriginal right will depend entirely on the practices, customs, and traditions of the particular community claiming the right. 34 The aboriginal right claimed must be specific only to Akwesasne Mohawks. If this mobility right is found, it will not be universal or trans- ferable. Honey Myers is not a member of the Mohawks of Akwesasne. She belongs to the Onondaga tribe. This right claimed cannot apply to Honey Myers. Counsel for Ms. Shenandoah argued in his final submis- sions that the right sought should be characterized as the right of a Mo- hawk resident of Akwesasne to travel freely within Akwesasne territory without reporting in person at the border and any member of the Iroquois Confederacy (the Haudenosaunee) in the company of such a resident would likewise not be required to report at the border. There is no evi- dence historically to support this contention. Ms. Shenandoah aided and abetted her cousin to evade reporting in person without delay at the Port of Entry and this action was not saved by any recognizable aboriginal right. 35 There is no evidence that Mohawks of Akwesasne always traveled freely within their territory without being required to report at the Port of Entry. Chief Justice Lamer pointed out Vanderpeet at para. 69 that “...the interests aboriginal rights are intended to protect relate to the specific history of the group claiming the right.” Up until June 1, 2009, the his- tory of the Mohawks of Akwesasne related in court always included a limitation on their travel within Akwesasne to report in person at the Ca- nadian Port of Entry on Cornwall Island. Even at the time of contact, 16 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

there is no evidence that Mohawks had or exercised a right to travel across border in this area without permission. The Applicants acknowl- edge this reality at para. 19 of their factum where it is admitted: “To the best of our knowledge, from the establishment of the Port of Entry on Kahwenoke in 1896 until the relocation of CBSA to the City of Cornwall in 2009, there had never been an issue with reporting compliance...” The Applicants do not succeed on this arm of the Van der Peet test.

3.5: The practice, custom, or tradition relied upon cannot exist as an incident of another custom, practice or tradition. 36 There could be no aboriginal right of Akwesasne Mohawks to stand- alone mobility. Mobility is a means or method of doing something else. Mobility would need to be tied to a substantive activity that is itself an aboriginal right. For example, in Adams, the Supreme Court found there was an aboriginal right held by the Mohawks of Akwesasne to fish in Lake St. Francis. One would have to be mobile to exercise that right. The aboriginal right, though, is fishing, not mobility. The right is the purpose of the mobility, not the mobility itself. 37 In this case, the right to mobility is defined and particularized. It is the right to travel within the Akwesasne territory for community or fam- ily purposes without reporting in person to the Port of Entry. The sub- missions and evidence were silent on what would or would not form a community purpose. The right, to be meaningful, must be clear and une- quivocal. Those who live in the community or provincial or federal gov- ernments enacting laws that affect the community must know with clarity what the right entails. How do you distinguish ‘community purpose’ from trade, politics, fishing, harvesting, or importing goods for resale? 38 The particular purpose that Ms. Thompson and Ms. Shenandoah were pursuing is murky at best. Each dropped off their daughter on the Island after crossing the International Bridge without bringing them to the Port of Entry for examination. What community or family purpose consistent with a custom, practice, or tradition of the Mohawk was served? Their purpose was personal. Simply put, it was inconvenient to report at the bridge before dropping off their daughters. 39 I find that mobility for the purpose of a “community or family pur- pose” is too vague to constitute an aboriginal right and further, that if it is an aboriginal right, the Applicants cannot benefit from it on the facts of this case. R. v. Shenandoah P. Griffiths J. 17

40 In the result, the Applicants have failed to establish an aboriginal right to mobility for the purpose of traveling within Akwesasne territory without reporting - or without reporting in person — without delay for examination to the Port of Entry and accordingly, the aboriginal rights portion of the Application fails. I turn now to the Charter portion of the Application.

4: Charter Applications 4.1: Section 15(1) 41 S. 15(1) of the Charter provides: 15(1) Every individual is equal before and under the law and has the right to the equal protection of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability. 42 The test under s. 15(1) was described by Justice Abella in Droit de la famille - 091768, [2013] 1 S.C.R. 61 (S.C.C.) [hereinafter Quebec] as twofold (1) does the law create a distinction based on an enumerated or analo- gous ground? (2) is the distinction discriminatory?. 43 Justice Abella gives additional guidance as to how the test is to be applied in para. 331: Kapp [R. v. Kapp, [2008] 2 S.C.R. 483] and Withler [Withler v. Can- ada (Attorney General) [2011] 1 S.C.R. 396] guide us, as a result to a flexible and contextual inquiry into whether a distinction has the ef- fect of perpetuating arbitrary disadvantage on the claimant because of his or her membership in an enumerated or analogous group. As Withler makes clear, the contextual factors will vary from case to case — there is no rigid template. 44 The factors set out are pre-existing disadvantage, correspondence with actual characteristics, impact on other groups and the nature of the interest affected. These factors are suggestions for consideration but are not exhaustive and need not be expressly canvassed in every case: Que- bec para 331 and 417. A substantive disadvantage can also be shown if their disadvantage imposed by the law is based on a stereotype that does not correspond to the actual circumstances and characteristics of the Ap- plicant: Withler v. Canada (Attorney General) [2011 CarswellBC 379 (S.C.C.)] para 36. 18 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

45 The first stage of the test is to determine if the impugned law creates a distinction based on an enumerated or analogous ground. Section 18(1) makes no explicit distinction as to who should report in person without delay at Canadian border crossings based on enumerated or analogous grounds. The question here is whether the law creates an effective even if unintended distinction. The Applicant submits that the reporting require- ments have an adverse effect on the Mohawks of Akwesasne because the geography of the community is unique. The division of the Akwesasne territory by the international border has created hardships for the commu- nity, it is argued, that were exacerbated when the Port of Entry was moved from Cornwall Island to the City of Cornwall after June, 2009. Before that date, there is no complaint that s. 18(1) had a discriminatory effect. After the Port of Entry was moved, the requirement to report in person created considerable disruption in the daily affairs of the commu- nity. The Applicants maintain that the hardships suffered entitled them to a benefit given other groups but denied them for reasons based on un- founded stereotypes arising from their ethnicity as aboriginal Mohawks. 46 It is not the burden created by the Application of s. 18(1) that is the source of the complaint but rather the failure to provide a benefit of more convenient reporting arrangements that were made available to others. 47 As the complaint has its seeds in the decision to move the Port of Entry off of Cornwall Island, the circumstances surrounding the reloca- tion and any steps taken to ameliorate the impact of the move need to be considered. 48 Prior to June 1, 2009, the Port of Entry was located on Cornwall Is- land south of the east-west road running the length of the Island. Be- tween the international boundary and that Port of Entry, there were no side roads. The Port of Entry effectively caught all vehicular traffic en- tering the Island from the south. In addition to primary inspection lanes, there was an additional lane specifically designated for the Mohawks of Akwesasne to expedite their travel. All lanes including the “native” lane were staffed by the CBSA. The location and procedures were efficient and effective in controlling the flow of goods and people across the border. 49 In 2006, the Government of Canada announced it would implement a campaign promise to arm all Border Service Officers to enhance public security and officer safety at Canada’s borders. This initiative would in- clude the arming of the CBSA personnel working on Cornwall Island. The Applicant’s maintain that this initiative was unknown to the R. v. Shenandoah P. Griffiths J. 19

Mohawks of Akwesasne. I find that the evidence establishes there were discussions about the initiative between CBSA and community repre- sentatives from at least March 2009. On two occasions, the implementa- tion of the arming initiative was delayed for the Cornwall Port of Entry and the final date of implementation was set for June 1, 2009. 50 The Akwesasne community was strongly opposed to having armed CBSA officers on the Mohawk Territory of Cornwall Island. The opposi- tion came from all sectors of the community and from the community leadership represented by the Mohawk Council of Akwesasne, The St. Regis Mohawk Tribal Council and the Mohawk Nation Council of Chiefs. The evidence of Lance Markell of the CBSA and Wesley Bene- dict, a District Chief at the time of the events, stressed that the arming initiative was strenuously opposed. The MCA made it clear that it viewed the arming of the CBSA officers as “non-negotiable” and an act of war against the Mohawks. 51 Lance Markell arrived at Cornwall in mid-May 2009 to take charge of the situation on behalf of the CBSA. He testified that there was consider- able tension at the Port of Entry created by a growing number of demon- strators on site day and night. He also testified about two incidents in the days leading up to May 31st where groups of Mohawks entered the CBSA building at the Port and interfered with the ability of CBSA per- sonnel to examine two different individuals seeking entry to Canada. Each time, intimidation tactics were used to bring those individuals into Canada without being examined and approved. He testified that a back- hoe was brought to the highway by Mohawks on the afternoon of the 31st and parked, blocking the highway. The atmosphere was tense and vola- tile and unarmed CBSA officers had reasonable fears for their safety. 52 In the evening of May 31st, the leadership of the MCA, the St. Regis Tribal Council and the Mohawk Nation Council of Chiefs met with Lance Markell and told him they had unanimously agreed they wanted the CBSA to leave the Island and the Port of Entry. The Akwesasne Chief of Police told Mr. Markell he could not guarantee the safety of the CBSA officers. In the face of this volatile situation, Lance Markell took the decision to close the Port of Entry and remove all CBSA personnel immediately from the Island. 53 The Cornwall Port of Entry was closed for about 6 weeks while the CBSA looked for an alternative. Once they left the Island, they were never invited to return. Arming of the BSOs was unacceptable to the Mohawks of Akwesasne and yet leaving them as the only Canadian un- 20 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

armed Border Service Officers was an unacceptable risk to the CBSA. Quickly, the CBSA created a temporary Port of Entry in the City of Cornwall on the north shore of the St. Lawrence River. This temporary Port was the only solution available but was less than satisfactory. It would initially have only two inspection lanes creating long back-ups and long wait times for the public at peak hours. 54 It was the intention of the CBSA to return to the original Port of En- try on Cornwall Island and work again at the original smooth functioning location in an armed capacity. Paul Porrior of the CBSA and Lance Mar- kell both testified to that effect. Grand Chief Mitchell said that at the request of the CBSA, the community was surveyed in November 2009 to see if it would support the return of the CBSA to the Island in an armed capacity. The survey revealed that the community remained opposed to the return of the CBSA to their original post. 55 Section 18(1) remained and its requirement to report in person with- out delay was unchanged throughout this time. I have found that the change in the location of the Port of Entry from the Island to the City of Cornwall caused significant disruption to ordinary life in Akwesasne, but this disruption was not a function of s. 18(1), creating a discriminatory distinction on an enumerated ground. The disruption was self-imposed by the Akwesasne community. There was no distinction created by the legislation and there was no discrimination based on an enumerated ground. 56 The Applicants have set out a second alleged s. 15(1) breach. While the Applicants have accepted the importance of the duty to report, their complaint is with the manner of reporting that is required. There is provi- sion in IRPA for alternative reporting arrangements other than reporting in person. It is argued that failure to extend the benefit of alternative reporting to the Mohawk residents of Akwesasne, while extending such a benefit to other communities, is discriminatory. They allege the CBSA has stereotyped all the Mohawks of Akwesasne as smugglers and criminals who cannot be trusted and, further, that the refusal to provide for alternative reporting arrangements is a petty form of punishment against the Mohawks for compelling the CBSA to leave Cornwall Island. It is argued that the insistence of the CBS that everyone report in person without delay is unnecessarily and cruelly rigid. Such stereotyping and/or punishment would create a distinction based on the enumerated ground of race or ethnic origin such that step 1 of the s. 15(1) test is met. R. v. Shenandoah P. Griffiths J. 21

57 The evidence does not support the contention that the failure to pro- vide the benefit of alternative reporting arrangement arises out of either stereotyping or targeted punishment. 58 The Applicants have failed to introduce any evidence of an alterna- tive reporting arrangement that could be done remotely without the pres- ence of armed CBSA officers in a community similar to Akwesasne. That is to say, a community with over 13,000 residents at a high traffic volume border crossing where there is a proven history of smuggling of arms, people, and contraband. The evidence of the CBSA officials is that this border crossing is designated as high risk for the actions of a few. The vast majority of the Akwesasne population was acknowledged to be law abiding. In creating this designation, the CBSA maintains they were acting on intelligence and real experience and not stereotyping the whole community. I find that this is the case. 59 There are alternative reporting arrangements that have been made in exceptional circumstances in other locations. These were described by Ms. Arianne Reza the CBSA Director of Traveller Programs. To give context to the exceptions, Ms. Reza testified that 100 million passages per year in Canada are screened under the provisions of s. 18(1) — that is, the traveller is required to report in person without delay for examina- tion by a BSO. She said there are a very small number of programs that are available in special circumstances. None of these programs apply to an entire undefined large community at a high volume, high risk Port of Entry. 60 NEXUS is a program that still requires the traveller to report at the border, but provides for an expedited process. The travellers are pre- screened for the NEXUS program and it is designed for individuals, not communities. Ms. Reza offered to Grand Chief Mitchell to look into ar- ranging a NEXUS lane for the Mohawks but he did not take up her offer. 61 The CANPASS program is offered to pre-screened travelers who are travelling by private plane or boat. It is not available to travellers travel- ing by car. In this program, the traveller is required to call ahead some hours before arriving in Canada to report and declare their arrival. It is still open to the BSO, on a random basis, to attend at the marina or air- field to examine the traveller in person. Such a BSO, like all such Of- ficers in Canada, would be armed. This program would not address the concerns of the Akwesasne. It is not designed for passages made at bor- der crossings accessed by road. It is not a workable alternative. 22 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

62 Ms. Reza testified that at the time of her testimony, there were no alternative reporting programs for land or highway crossings although two pilot programs were being developed. The pilot programs were for specific small remote communities with very high levels of compliance. The communities also had very low volume of traffic consisting of 23 - 30 cars per day for each. The situation at Akwesasne is dramatically dif- ferent as set out above. 63 The benefit of an alternative reporting system was requested in May 2013 — after the laying of the charges before the Court. Mr. Alec Attfield testified that after May 2013, he and his team were charged by CBSA to look into the feasibility of an alternative reporting arrangement for Akwesasne. The CBSA at that time had no experience with establish- ing or running such a program. Mr. Attfield worked on this feasibility study for some 10 months. He found that it was feasible to set up video monitors at or near the site of the previous Port of Entry on the Island. In reaching that conclusion, he considered the availability of technical ca- pacity to set up remote video stations beside the highway that would also be in direct communication with a CBSA official outside of Akwesasne. He thought the development of a secure status identification card was also possible. 64 It was not the technical feasibility that caused Mr. Attfield to con- clude that a remote reporting arrangement, while feasible, could not meet the security standards required to protect Canadians from the illegal flow of goods or people not entitled to enter Canada. He testified to the fol- lowing concerns that could not be addressed by such an arrangement: • No process was in place for the identification of who would be entitled to benefit from the alternative program; • Remote video monitoring could not see into the vehicle to deter- mine if there were goods or people hidden inside; • Who would monitor the actual remote video station to ensure compliance? The CBSA has no authority to delegate their function to others. If the CBSA was to monitor, it would have to be with armed officers. If this is the alternate reporting system and it is agreeable to the Mohawks, the Port of Entry might as well be re- turned to the Island; • The remote reporting arrangement suggested by the Mohawks gave no method to compel travellers to proceed to secondary in- spection in the absence of Border Service Officers. R. v. Shenandoah P. Griffiths J. 23

• They considered whether the proposed remote reporting arrange- ment would maintain border integrity. Paul Porrior and Jeff Da- vidson, both with the CBSA, testified that the Cornwall Port of Entry is designated a high risk area. The designation is assigned not because of stereotyping, but in response to actual circum- stances. They said there is frequent smuggling activity including the illegal movement of firearms, drugs, tobacco and people. There was testimony that in the first two months of operation of the temporary Port of Entry at the end of the Three Nations Bridge, 40% of travellers were non-compliant with the require- ment to report. This level of illegal activity and non-compliance would impede an officer’s ability to fulfill the CBSA mandate to provide border integrity. 65 The inference I draw from the concerns expressed by Mr. Attfield with the adequacy of a remote reporting arrangement for this border crossing is that the CBSA concluded the agency’s mandate to ensure the security of Canada’s borders could not be met with such an arrangement. I find the decision not to proceed further with a remote reporting project was not taken to deny an available benefit to the Akwesasne Mohawks or for any improper purpose. 66 The mission statement of the CBSA is “To ensure the security of Canada by managing the access of people and goods to and from Can- ada.” Many of the residents of Mohawk lands on Cornwall Island, St. Regis, and the Chenail are not only proud Aboriginals, they are also Canadians entitled to the same protection of their lands from the smug- gling of illegal goods or illegal aliens as any other Canadian. The CBSA is responsible for the security of the border that divides the Territory. To permit a remote reporting system that provides inadequate protection would itself become a discriminatory act if adopted by the CBSA. 67 In the result, I find that the Applicants have failed to satisfy me on a balance of probabilities that IRPA creates a distinction based on an enu- merated of analogous ground or, if I am wrong, I find that any distinction is not discriminatory, but rather was properly responsive to the unfolding reality of the expulsion of the CBSA from Cornwall Island. 24 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

4.3: Section 7 68 Section 7 of the Charter reads: Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. The inquiry mandated by s. 7 in this case is two-fold: 1. Does s. 18(1) limit the right of Ms. Shenandoah and Ms. Thomp- son to life, liberty and security of the person; and 2. If so, is the limitation in accordance with the principles of funda- mental justice? 69 The Applicants maintain that s. 18(1) limits both their liberty and their security of person. In particular, it is argued, their liberty is limited because the section is enforced by s. 124(1) of IRPA which provides that those who assist others to avoid reporting without delay are subject to a fine or imprisonment or both. It is this possibility of imprisonment for non-compliance that is said to limit the liberty of the complainants. It is further argued that the security of the person of each complainant is lim- ited by reason of the impact of the s. 18(1) on their psychological integ- rity. In short, the mere fact of reporting in person to a Border Service Officer at the Port of Entry is an infringement of both their physical and psychological integrity. 70 Where legislation is enforced by a threat of incarceration, it imposes a restriction on liberty and will meet the first arm of the test. I will ex- amine the second arm of the test — is the limit imposed in accordance with the principles of fundamental justice — shortly. First, it is necessary to consider whether there has been a limit placed on the security of the person. 71 The Supreme Court of Canada in New Brunswick (Minister of Health & Community Services) v. G. (J.), [1999] 3 S.C.R. 46 (S.C.C.) at para 60 gave some guidance on the sort of psychological stress that would give rise to a limitation: [f]or a restriction of security of the person to be made out, then, the impugned state action must have a serious and profound effect on a person’s psychological integrity. The effects of the state interference must be assessed objectively, with a view to their impact on the psy- chological integrity of a person of reasonable sensibility. This need not rise to the level of nervous shock or psychiatric illness, but must be greater than ordinary stress or anxiety. R. v. Shenandoah P. Griffiths J. 25

72 First, the subjective impact of reporting at the border should be con- sidered. Ms. Thompson testified that she crosses the border daily to go to her workplace. She said the wait time at the border when she travels is usually 3 - 5 minutes. She also said that at other times, the wait times could be longer, but less than 20 minutes at the new interim Port of En- try. She did not give a maximum wait time at the former temporary Port. She testified that she is reluctant to come onto Cornwall Island to access services or visit friends and family because of the extra time and incon- venience caused by reporting in person at the border. I do not find that the inconvenience or stress she describes would qualify as creating “a serious and profound effect on [her] psychological integrity.” 73 Turning to Ms. Shenandoah, she also indicated that since the charge was laid, she is reluctant to come onto Cornwall Island from her home in the United States because of the wait times at the border. She recounted one holiday weekend when it took her an hour and a half to travel from her home, cross the border, return to Cornwall Island to pick up a baby- sitter then return home. Again, I do not find that the inconvenience and stress caused by being required to report at the Port of Entry before pro- ceeding to her destination on Cornwall Island would create a “serious and profound effect on [her] psychological integrity.” 74 To determine if there is a limitation on an individual’s security of the person, the circumstances must also be looked at objectively “with a view to their impact on the psychological integrity of a person of reason- able sensibility.” The impact “must be greater than ordinary stress or anxiety.” Various members of the community testified to the inconve- nience of driving past their destination to report at the City of Cornwall. The time required to report and return to their ultimate destination varies widely according to the time of day, whether there is a special event oc- curring on the Island and when over time the trip was made. Members of the community testified to the inconvenience and disruption caused by the requirement to report in the City of Cornwall after the CBSA was compelled to leave their facility on the Island. The witnesses all agreed, however, that the new bridge and Port of Entry has significantly reduced wait times. 75 All parties agree that Canada has a duty to maintain the security of its borders. Entry into Canada at any border crossing brings with it the rea- sonable expectation that the traveller will be stopped and asked questions and their person or vehicle may be searched. This process is minimally intrusive and is foreseeable. It is a process that applies to the 100 million 26 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

passages into Canada each year. There is no expert evidence relied upon to establish the psychological impact on the Akwesasne community. In R. v. Simmons, [1988] 2 S.C.R. 495 (S.C.C.) the Supreme Court had oc- casion to consider border procedures in the context of the s. 8 freedom from unreasonable search and seizure. The Court found at para 49 that “the degree of personal privacy reasonably expected at customs is lower than in most other situations. People do not expect to be able to cross international borders free from scrutiny. It is commonly accepted that sovereign States have the right to control both who and what enters their boundaries. For the general welfare of the nation, the State is expected to perform this role.” I find that a reasonable person in the position of the complainants would be annoyed at the inconvenience created by the bor- der controls, but that annoyance would not rise to the level of a ‘serious and profound effect on a person’s psychological integrity.” Thus, I do not find any deprivation to the security of the person created by s. 18(1). 76 I have found that the right to liberty is impacted by s. 18(1) and so will turn now to the second part of the test namely, is the deprivation of liberty in accordance with the principles of fundamental justice? The Ap- plicants argue that the requirement for “strict” reporting at the Port of Entry, which I take to mean reporting in person without delay, is both arbitrary and grossly disproportionate and thereby violates the fundamen- tal principles of justice. In support, it is argued that “It is both misleading and simplistic to suggest that the objectives of border security and na- tional security can only be achieved by forcing Mohawks of Akwesasne to report in person in the City of Cornwall when viable alternatives are available”. However, there is no evidence of a viable alternative to the present reporting arrangements until such time as the Port of Entry can be moved onto the south shore of the St. Lawrence River in the United States. The arrangements for such a move are underway with the first step of attaining an international treaty with the United States achieved. The evidence of Mr. Attfield referred to above is overwhelming on this point as is the failure of the Mohawks of Akwesasne to suggest an ex- isting or proposed viable alternative that would ensure border integrity. 77 There is no evidence that the requirement to report in person is arbi- trary. Ms. Thompson testified that when she was arrested, it was the sec- ond time she had dropped off her daughter without having her report first at the border. The first time this happened, about a year prior to the date of the charge, she was given a warning and was not charged. That is not an arbitrary action consistent with the Applicant’s characterization of a “strict”, meaning inflexible, reporting regime. From July 13, 2009, when R. v. Shenandoah P. Griffiths J. 27

the border was reopened, until mid-September of that year, the reporting requirement was not enforced by administrative fines or the impounding of vehicles. Absent those enforcement measures, approximately 40% of the travellers from the Akwesasne community did not report as required by s. 18(1). It cannot be said that enforcement measures are arbitrary, if lesser measures did not result in compliance. I do not find that the s. 18(1) requirements or the manner in which they were enforced to be arbi- trary or inconsistent. 78 Finally, I find that the Ontario Court of Appeal in R. v. Jones [2006 CarswellOnt 4972 (Ont. C.A.)], [2006] CanLII 28086 gives helpful di- rection when considering the impact of international travel on the princi- ples of fundamental justice. In that case, the Applicant sought to exclude a statement made to Border Service Officers under s. 7. Justice Doherty in giving the judgement of the Court said at para 29: [T]he s. 7 analysis involves a balance. Each principle of fundamental justice must be interpreted in light of other individual and societal interests that are of sufficient importance that they may appropriately be characterized as principles of justice in Canadian society.; and at para. 30: No one entering Canada reasonably expects to be left alone by the state, or to have the right to choose whether to answer questions rou- tinely asked of persons seeking entry to Canada.....The state is ex- pected and required to interfere with the personal autonomy and pri- vacy of persons seeking entry to Canada. Persons seeking entry are expected to submit to and cooperate with that state intrusion in ex- change for entry into Canada. [31] I also have no hesitation in describing Canada’s effective control over its borders as a societal interest of sufficient importance to be characterized as a principle of fundamental justice. In keeping with the Jones decision, I find that the minimal intrusion in- volved in requiring people entering Canada, including the Mohawks of Akwesasne, to report in person at the Port of Entry is entirely consistent with the principles of fundamental justice when balanced against the so- cietal interest in maintaining the integrity of Canada’s borders. This is for the protection of all Canadians, including the Mohawks of Akwesasne. 79 I find that the Applicants have established on a balance of probabili- ties that the liberty of the Applicants was at risk by operation of s. 18(1) but that the section complies with the fundamental principles of justice. 28 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

4.4: s. 1 Canadian Charter of Rights and Freedoms 80 Having found that section 18(1) breaches section 7 of the Charter by putting at risk the freedom of individuals who do not comply with the requirement to report without delay and in person at a Port of Entry upon entry into Canada, I now must turn to section 1 of the Charter to deter- mine if this requirement is a reasonable limit on liberty notwithstanding that I have found the limit to be in keeping with the principles of funda- mental justice. 81 Section 1 of the Charter provides: 1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable lim- its prescribed by law as can be demonstrable justified in a free and democratic society. 82 The primary test to determine if the purpose of legislation is demon- strably justifiable in a free and democratic society is found in R. v. Oakes, [1986] 1 S.C.R. 103 (S.C.C.). In a unanimous decision of the Su- preme Court, Chief Justice Dickson set out a two-step process as follows: 1. There must be a pressing and substantial objective and 2. The means for achieving the objective must be proportional, meaning there must be minimal impairment of rights, the means must be rationally connected to the objective and there must be proportionality between the infringement and the objective. 83 The Applicants acknowledge that the control of goods and people across Canada’s border is a pressing and substantial objective that is fun- damental to Canadian sovereignty, so I turn to the second stage of the test to determine if the Respondent has demonstrated, on a balance of probabilities, that the means of achieving that objective are proportional.

4.3(i) Minimal impairment of rights 84 Prior to the expulsion of the CBSA from Cornwall Island, there was no complaint about the requirement to report at the Port of Entry in per- son. The claim that s. 18(1) is a disproportional impairment of the s. 7 right arises from the location of the Port, not from the reporting require- ment itself. As I have found, the movement from a convenient Port of Entry to an inconvenient Port of Entry was solely attributable to the de- mand of the Mohawks of Akwesasne and the proportionality of the new reality created by that movement has to be viewed in light of that back- ground. The only way to control the flow of goods and people across the border is to require everyone to report in person or to be liable to report R. v. Shenandoah P. Griffiths J. 29

in person. There are alternative reporting arrangements that have been approved for those entering Canada by private airplane or boat, but those people can be required at random to wait at their landing place, pending the arrival of an armed Border Service Officer. Such an arrangement does not meet the community mandated prohibition against armed CBSA officers attending on the territory of the Mohawks of Akwesasne. As I have already found above, there is no alternative reporting arrangement suitable for Akwesasne that will enable the CBSA to carry out its man- date of protecting the integrity of Canada’s borders. The Supreme Court of Canada addressed a similar issue in R. v. Simmons, [1988] 2 S.C.R. 495 (S.C.C.). In that case, an individual was required to submit to a search by a Cutoms Officer at the border. In upholding the search as reasonable, the Chief Justice Dickson said at para. 49: I accept the proposition advanced by the Crown that the degree of personal privacy reasonably expected at customs is lower than in most other situations. People do not expect to be able to cross inter- national borders free from scrutiny. It is commonly accepted that sovereign states have the right to control both who and what enters their boundaries. For the general welfare of the nation, the State is expected to perform this role. Without the ability to establish that all persons who seek to cross its borders are legally entitled to enter the country, the State would be precluded from performing this crucially important function. 85 I find that the requirement that every person report in person at the Port of Entry without delay is proportional to the critical purpose of s. 18(1) and is a minimal impairment of rights as set out in Simmons.

4.3(ii) Are the means rationally connected to the objective? 86 The means — requiring in-person reporting without delay — are ob- viously rationally connected to the objective. The evidence of senior CBSA officers was clear that, without a requirement that each person seeking entry into Canada report in person at the border without delay, the integrity of the border would be severely at risk. The search for a more convenient alternative to the present disruptive reporting regime was carried out by Mr. Attfield over many months and no alternative was found that could be safely implemented. I find the alternatives suggested by counsel for the Applicants were not realistic or developed. They were ideas without substance. The means — requiring in-person reporting without delay — are obviously rationally connected to the objective. This reporting is not frivolous, arbitrary, or unnecessary. The purpose of 30 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

the reporting has been acknowledged and approved the Supreme Court of Canada in Simmons.

4.3(iii) Is there proportionality between the infringement and the objective? 87 Are there ways of achieving the legislative goal of securing Canada’s borders through less restrictive means? After June 1, 2009, a joint MCA and CBSA Committee was established to address border issues. The committee recommended relieving emergency services such as the police and ambulances from the reporting requirement. Accommodations were also granted over time to school buses and funeral processions. A train- ing program was developed and delivered to sensitize border officers to the local Aboriginal history, customs, and spiritual practices. An aborigi- nal was hired to act as a liaison with the community on resolving the border complaints of individuals. 88 The temporary Port of Entry in the City of Cornwall was inadequate to handle the volume of traffic resulting at long delays at peak periods. The CBSA negotiated with the city to obtain enough land to add a third primary inspection lane. At the request of the MCA, the new lane was designated for native use. The designated lane had the opposite effect from what was intended — it added to the wait time. After consultation, the three lanes were then all designated for general use. 89 The CBSA suggested and implemented procedures to address the in- creased traffic created by special events on the Island. When there was a lacrosse tournament, they would pre-screen incoming teams with the co- operation of the MCA so that the delay at the border for examination would be reduced. They also added extra staff during special events to speed processing. 90 In January 2014, a new bridge was completed connecting Cornwall Island and the mainland. This bridge was significantly shorter than the old bridge and there was enough space on the north shore to create a new interim Port of Entry with five primary inspection lanes. The MCA was consulted extensively in the design of this new interim facility. It has cut wait times to less than 20 minutes at any time of the day, according to unchallenged CBSA records. 91 The CBSA and the Mohawks of Akwesasne have always maintained that the most efficient and effective location for a permanent Port of En- try would be in the United States on the south shore of the St. Lawrence River. Grand Chief Mitchell acknowledges that a Port of Entry at that R. v. Shenandoah P. Griffiths J. 31

location would address all of the concerns of the Akwesasne community. The Government of Canada, aware of the importance of finding a perma- nent solution to the disruptions of daily life caused by a Port located on the north shore, entered into negotiations with the United States. In March 2015, after three years of joint effort, an international treaty was adopted that approved in principle the need for a process of border pre- clearance on U.S soil. Before the first pre-clearance station can be estab- lished, many amendments to Canadian and US legislation will be needed, but testimony indicated a strong commitment from both countries to move forward. This is a national treaty affecting potentially many Ports of Entry, but both nations have agreed to make the crossing at Cornwall Island the first priority. 92 These actions by the CBSA have shown a commitment to ameliorate the impact of the relocated Port of Entry that is proportional and appro- priate. The objective of s. 18(1) is to ensure the security of Canada’s borders. That security is a fundamental protection for all the people of Canada including those who reside on Cornwall Island. The infringe- ment, I find, is minimal and proportional. It has been and continues to be mitigated respectfully by the CBSA having regards to the needs of the people of Akwesasne for minimal disruption of their daily routines and the needs of Canada to maintain secure protect borders. 93 Having balanced all of the criteria set out in Carter, I am satisfied that the s. 18(1) infringement of section 7 rights is saved by section 1 of the Charter. Section 18(1) is a reasonable limit fully justified in a free and democratic society.

4.4: Freedom of Association s. 2(d) 94 Section 2(d) of the Charter provides: 2 Everyone has the following fundamental freedoms... (a) . . . (b) . . . (c) . . . (d) freedom of association. The Applicants contend that the requirement of in-person reporting at the border has had a chilling effect on travel to Cornwall Island that rises to the level of an interference with the guarantee of freedom of association. Many members of the Akwesasne community including the two Appli- cants testified that they are reluctant to travel to Cornwall Island to visit 32 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

family or friends or to attend cultural events because of the uncertain border wait times. No one testified that they had been forbidden or ex- cluded from associating with any individual or group or organization as a result of s. 18(1). They argue that border wait times have exceeded the level of mere inconvenience to become an interference with the social fabric of the community. This is a novel argument. It is clear from the case law that the freedom of association section was drafted to protect workers seeking to join a union. There is no precedent for expanding this freedom to include a right to associate with alacrity. It may be that a significant and long lasting impediment to association that was not an actual bar to association could yet be considered enough of an inhibition to amount to denial of the right. That is not the case here. 95 The Applicants have not given any testimony of any organization, in- dividual or group with whom they have been unable to associate as a result of the operation of s. 18(1). It is clear that to meet with some of their friends or family or social or cultural organizations found on Corn- wall Island, they must allow for longer travel time. It may take them an extra 10 to 20 minutes now and somewhat longer at the time of the charges to associate with those on Cornwall Island, but there is no prohi- bition from such a meeting. There has been no testimony of any delay in meeting or associating with others that is not measured in minutes or, at most, less than two hours. These are not delays measured in days, weeks or months. The delays do not reach the point where they interfere with the constitutionally protected right of freedom of association. 96 The applicants have failed to prove on a balance of probabilities any breach of sections 15(1), 7, or 2(d) of the Charter that is not saved by section 1 and, accordingly, the Application is dismissed in its entirety. Application dismissed. Faroon v. Canada (MCI) 33

[Indexed as: Faroon v. Canada (Minister of Citizenship and Immigration)] Ali Alvin Faroon, Applicant and The Minister of Citizenship & Immigration and the Minister of Public Safety and Emergency Preparedness, Respondents Federal Court Docket: IMM-415-15 2015 FC 931, 2015 CF 931 Catherine M. Kane J. Heard: July 22, 2015 Judgment: September 28, 2015 Immigration and citizenship –––– Exclusion and removal — Inadmissible classes — Criminality –––– Foreign national was citizen of Fiji who became permanent resident of Canada — Foreign national was subsequently convicted of indictable offences and advised that he may be inadmissible to Canada — Officer’s report stated that foreign national was inadmissible on grounds of seri- ous criminality and her review of file was forwarded to her supervisor — For- eign national made several inquiries asking when decision would be made — Minister of Public Safety and Emergency Preparedness brought application to declare foreign national inadmissible under paragraph 36(1)(a) of Immigration and Refugee Protection Act — Immigration and Refugee Board issued Notice to Appear for Admissibility Hearing to foreign national 16 months after foreign national was advised he may have been inadmissible — Foreign national alleged that delay in decision to refer him to admissibility hearing was abuse of process and brought application for judicial review of decision — Application dis- missed — Delay from date of foreign national’s last conviction to report under s. 44(2) of Act was extensive and unexplained however this was not case where abuse of process had been established and where stay of proceedings would be justified — There was no evidence that delay between initial letter and referral decision had prejudiced foreign national, nor had it impaired his ability to have fair hearing and to answer claims that underlay referral, given that his convic- tions were matter of record and were not in dispute — Delay was not inordi- nate — Public interest was best served by admissibility hearing proceeding and being determined on its merits — Nor had there been violation of foreign na- tional’s s. 7 rights under Canadian Charter of Rights and Freedoms as foreign national had not established that his ability to participate in his admissibility hearing and answer allegations had been impaired — There was no evidence of 34 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th) any impact on foreign national’s reputation or other stigma or psychological harm. Criminal law –––– Charter of Rights and Freedoms — Life, liberty and se- curity of person [s. 7] — Abuse of process –––– Foreign national was citizen of Fiji who became permanent resident of Canada — Foreign national was subse- quently convicted of indictable offences and advised that he may be inadmissi- ble to Canada — Officer’s report stated that foreign national was inadmissible on grounds of serious criminality and her review of file was forwarded to her supervisor — Foreign national made several inquiries asking when decision would be made — Minister of Public Safety and Emergency Preparedness brought application to declare foreign national inadmissible under paragraph 36(1)(a) of Immigration and Refugee Protection Act — Immigration and Refu- gee Board issued Notice to Appear for Admissibility Hearing to foreign national 16 months after foreign national was advised he may have been inadmissible — Foreign national alleged that delay in decision to refer him to admissibility hear- ing was abuse of process and brought application for judicial review of deci- sion — Application dismissed — Delay from date of foreign national’s last con- viction to report under s. 44(2) of Act was extensive and unexplained however this was not case where abuse of process had been established and where stay of proceedings would be justified — There was no evidence that delay between ini- tial letter and referral decision had prejudiced foreign national, nor had it im- paired his ability to have fair hearing and to answer claims that underlay referral, given that his convictions were matter of record and were not in dispute — De- lay was not inordinate — Public interest was best served by admissibility hear- ing proceeding and being determined on its merits — Nor had there been viola- tion of foreign national’s s. 7 rights under Canadian Charter of Rights and Freedoms as foreign national had not established that his ability to participate in his admissibility hearing and answer allegations had been impaired — There was no evidence of any impact on foreign national’s reputation, other stigma or psychological harm. Cases considered by Catherine M. Kane J.: Blencoe v. British Columbia (Human Rights Commission) (2000), 2000 SCC 44, 2000 CarswellBC 1860, 2000 CarswellBC 1861, 3 C.C.E.L. (3d) 165, [2000] S.C.J. No. 43, 81 B.C.L.R. (3d) 1, 190 D.L.R. (4th) 513, [2000] 10 W.W.R. 567, 23 Admin. L.R. (3d) 175, 2000 C.L.L.C. 230-040, 260 N.R. 1, (sub nom. British Columbia (Human Rights Commission) v. Blencoe) 77 C.R.R. (2d) 189, 141 B.C.A.C. 161, 231 W.A.C. 161, [2000] 2 S.C.R. 307, (sub nom. British Columbia (Human Rights Commission) v. Blencoe) 38 C.H.R.R. D/153, REJB 2000-20288, 2000 CSC 44 (S.C.C.) — followed Canada (Minister of Citizenship and Immigration) v. Ekwi (2015), 2015 FC 305, 2015 CarswellNat 498, 2015 CF 305, 2015 CarswellNat 2073 (F.C.) — re- ferred to Faroon v. Canada (MCI) Catherine M. Kane J. 35

Fabbiano v. Canada (Minister of Citizenship and Immigration) (2014), 2014 FC 1219, 2014 CarswellNat 5231, 32 Imm. L.R. (4th) 84, 2014 CF 1219, 2014 CarswellNat 8341 (F.C.) — followed Hernandez v. Canada (Minister of Public Safety & Emergency Preparedness) (2007), 2007 FC 725, 2007 CarswellNat 1902, 62 Imm. L.R. (3d) 236, 2007 CF 725, 2007 CarswellNat 4085, [2008] 2 F.C.R. 450, 325 F.T.R. 108 (Eng.), [2007] F.C.J. No. 965 (F.C.) — considered Mahjoub, Re (2013), [2013] F.C.J. No. 1216, 2013 FC 1095, 2013 CarswellNat 6395, 26 Imm. L.R. (4th) 180 (F.C.) — referred to R. c. Piccirilli (2014), 2014 SCC 16, 2014 CarswellQue 575, 2014 CarswellQue 576, [2014] S.C.J. No. 16, 367 D.L.R. (4th) 575, (sub nom. R. v. Babos) 8 C.R. (7th) 1, (sub nom. R. v. Babos) 454 N.R. 86, 308 C.C.C. (3d) 445, 2014 CSC 16, (sub nom. R. v. Babos) [2014] 1 S.C.R. 309, (sub nom. R. v. Babos) 300 C.R.R. (2d) 153 (S.C.C.) — followed Ratzlaff v. British Columbia (Medical Services Commission) (1996), 17 B.C.L.R. (3d) 336, 69 B.C.A.C. 217, 113 W.A.C. 217, [1996] 5 W.W.R. 532, 1996 CarswellBC 58, [1996] B.C.J. No. 36 (B.C. 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 — considered Criminal Code, R.S.C. 1985, c. C-46 s. 212(2) — considered s. 267(b) — considered Immigration and Refugee Protection Act, S.C. 2001, c. 27 Generally — referred to s. 36(1)(a) — considered s. 37(1)(a) — considered s. 44(2) — considered s. 72 — pursuant to

APPLICATION by foreign national for judicial review of decision to refer him to admissibility hearing.

Gerald G. Goldstein, for Applicant Edward Burnett, for Respondents

Catherine M. Kane J.:

1 The applicant, Ali Alvin Faroon, seeks judicial review pursuant to section 72 of the Immigration and Refugee Protection Act [Act] of the decision of the Minister’s delegate based on the Report of an Inland En- 36 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

forcement Officer of the Canada Border Services Agency (CBSA) (the Officer) to refer the applicant to an admissibility hearing pursuant to sub- section 44(2) of the Act. The applicant submits that the delay in the deci- sion to refer the applicant to the admissibility hearing is an abuse of pro- cess and a breach of the applicant’s section 7 rights under the Canadian Charter of Rights and Freedoms [Charter] and, as a result, the proceed- ings should be permanently stayed. 2 For the reasons that follow, the application is dismissed. I do not find an abuse of process in the present circumstances.

Background 3 The applicant, a citizen of Fiji, arrived in Canada in 1987 at the age of 15. He became a permanent resident of Canada on May 9, 1995. 4 On December 2, 1999, the applicant was convicted of living off the avails of an underage prostitute, in contravention of subsection 212(2) of the Criminal Code, RSC 1985, c C-46. 5 On May 23, 2003, the applicant was convicted of assault causing bod- ily harm, in contravention of paragraph 267(b) of the Criminal Code. 6 Both offences are indictable offences punishable by up to 10 years imprisonment. 7 On June 28, 2013, the Officer sent the applicant a letter advising him that he may be inadmissible to Canada (initial letter). The applicant was given the opportunity to provide submissions and did so on July 30, 2013. His submissions recounted his background in Canada, raised po- tential Humanitarian and Compassionate (H&C) considerations and en- closed letters of support. 8 On November 29, 2013, in response to the applicant’s inquiry about the status of his case, the Officer indicated that she had completed her review of the file and that she had forwarded it to her supervisor on Oc- tober 15, 2013. 9 The Officer’s report, dated October 15, 2013, which is included in the record, states that in the Officer’s opinion, the applicant is inadmissible on the grounds of serious criminality pursuant to paragraph 36(1)(a) of the Act due to convictions in Canada for criminal offences punishable by a maximum term of imprisonment of at least 10 years. 10 The applicant made several inquiries asking when a decision would be made (on February 5, April 5, July 14 and August 1, 2014). The Of- ficer replied on August 25, 2014, indicating that the Minister’s delegate Faroon v. Canada (MCI) Catherine M. Kane J. 37

had returned the file and that a decision would be made within one week of receiving any new submissions. The applicant was given until Sep- tember 10, 2014 to make new submissions and did so, again noting H&C considerations and enclosing letters from family and photographs. 11 On October 1 and 15, 2014, the applicant again inquired whether a decision had been rendered. 12 In an undated “Section 44(1) and 55 Highlights — Inland Cases” re- port, the Officer noted in the recommendation section that it does not appear, apart from the applicant’s two children and common law partner, that he has established himself in Canada and added that “[d]ue to the change in IRPA concerning Appeal Rights, I recommend client be issued a Stern Warning Letter and the case referred to Investigations for follow up on possible organized crime.” The Manager’s notation, dated Septem- ber 23, 2014, indicates the Manager’s disagreement: “Do not concur with this recommendation — this was previously sent back ... for additional investigation.” 13 Another “Section 44(1) and 55 Highlights — Inland Cases” Report, by another Officer, dated July 18, 2014, included a recommendation that the applicant be convoked to an admissibility hearing and be issued a Deportation Order based on paragraphs 36(1)(a) and 37(1)(a), and set out several reasons, including the convictions for indictable offences and that “Ali is known to associate with gang members/associates in the lower mainland.” The Manager’s notation, dated September 23, 2014 indicates that the file was reviewed in its entirety, including the additional submis- sions, and recommends an admissibility hearing. 14 On November 12, 2014, the Minister of Public Safety and Emergency Preparedness brought an application pursuant to subsection 44(2) of the Act asking the Immigration Division of the Immigration and Refugee Board to declare the applicant inadmissible under paragraph 36(1)(a) of the Act. 15 On November 25, 2014, the Immigration and Refugee Board issued a Notice to Appear for Admissibility Hearing (notice of referral) on Janu- ary 19, 2015 based on the Report of the Minister’s delegate, which at- tached the Officer’s October 15, 2013 report. 16 The admissibility hearing commenced on January 19, 2015. The hear- ing was adjourned to allow the applicant to apply to this Court for leave and judicial review relating to allegations of abuse of process arising from the delay in pursuing the admissibility hearing. 38 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

The Issues 17 The applicant argues that the delay in bringing the application for an admissibility hearing from June 2013, when he was first made aware that he may be inadmissible to Canada, until November 2014, when the no- tice of referral was issued, considered in the context of his convictions that date back 12 and 15 years, is an inordinate delay that has caused him prejudice. He argues that it is an abuse of process to continue with the admissibility hearing and, therefore, a permanent stay of proceedings is justified. The applicant also argues, for the same reasons, that the referral for an admissibility hearing was made in a manner inconsistent with his rights pursuant to section 7 of the Charter. 18 The issues to be addressed are, therefore: (1) Whether there has been a delay amounting to an abuse of process which should result in a permanent stay of proceedings. (2) Whether the referral for the admissibility hearing was made in a manner inconsistent with section 7 of the Charter and should re- sult in a permanent stay of proceedings.

The Applicant’s Submissions 19 The applicant relies extensively on Fabbiano v. Canada (Minister of Citizenship and Immigration), 2014 FC 1219 (F.C.) [Fabbiano], where a stay of proceedings was granted for abuse of process, and submits that, given the principles it sets out governing abuse of process and the analo- gous facts to the present case, a stay of proceedings should result for the applicant. 20 The applicant notes that in Fabbiano, the Court stated that the “test is whether the delay caused ‘actual prejudice of such magnitude that the public’s sense of decency and fairness is affected’” (at para 10). The ap- plicant submits that the delay he experienced has caused him such prejudice and that the public’s sense of decency and fairness would be offended by proceeding with the admissibility hearing. 21 The applicant submits that he was prejudiced by the 18 month lapse of time between when he received the letter advising that he may be inadmissible to Canada and when he received the notice of referral. He notes that he made repeated inquiries about the progress of the admissi- bility proceedings and the 18 month period of uncertainty had a prejudi- cial impact on him psychologically. The 12 year period since the date of Faroon v. Canada (MCI) Catherine M. Kane J. 39

his last conviction, given that no action was taken to address his potential inadmissibility until June 2013, adds to the prejudice. 22 The applicant argues that the entire 12 year period should be consid- ered, relying on Ratzlaff v. British Columbia (Medical Services Commis- sion) (1996), 17 B.C.L.R. (3d) 336 (B.C. C.A.) at para 20, [1996] B.C.J. No. 36 (B.C. C.A.) [Ratzlaff], where the British Columbia Court of Ap- peal noted that “[w]here the position of the party at risk ... is that the delay is such as to amount to an abuse of power, I think the whole of that period of delay must be looked at in determining whether it is such as to amount to oppression or an abuse of power.” 23 The applicant notes that in Fabbiano, at para 8, the Court found that a remedy may be provided where proceedings have become oppressive, including where a person carries on their life reasonably believing that no further action will be taken against them. The applicant submits that this is his situation; he believed that no further action would be taken against him in the 12 years between his criminal convictions and the Of- ficer’s referral report. 24 The applicant states that over these years he established roots, partic- ularly because of his children. He notes that he has been in Canada since 1987 and submits that allowing a person to establish their livelihood and family only to later face the prospect of removal is oppressive and unfair. 25 The applicant points out that no explanation has been provided for the delay, the facts are not complicated or in dispute, and the delay cannot be attributed in any way to him. These factors must be considered in assess- ing the impact of the delay (Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307 (S.C.C.) [Blencoe]. 26 The applicant also argues that there are other similarities with the facts in Fabbiano, including that the information relied on to support his inadmissibility is over 12 years old. In Fabbiano, the information relied upon was approximately seven years old and the Court found prejudice, given that Mr Fabbiano’s circumstances had changed in that period. Fur- ther, like the facts in Fabbiano, because no action was taken for many years, officials were apparently not concerned about any risk posed by the applicant. 27 In addition, in Fabbiano the Court found that the strict provisions of the Act relating to when H&C factors may be considered, combined with a delay in proceedings, impaired Mr Fabbiano’s ability to present further submissions. 40 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

28 The applicant adds that he has been prejudiced by not knowing the case he had to meet. He relies on Hernandez v. Canada (Minister of Public Safety & Emergency Preparedness), 2007 FC 725 (F.C.) at para 43, [2007] F.C.J. No. 965 (F.C.), where the Court found that the section 44 report should be set aside because a relevant document had been pro- vided to the Minister but not disclosed to the applicant. He notes that several of the reports of officers included in the record refer to his associ- ation with gang members/associates, yet this information was not dis- closed to him to permit him to determine who these alleged associates are or to dispute the allegation. He argues that this reference tainted or influenced the subsection 44(2) report. 29 The applicant points out that the Officer initially recommended a warning letter, which would be an alternative to the admissibility report, due to the consequences of an inadmissibility finding, from which there is no appeal. He argues that there is no explanation for why this recom- mendation was not supported given it was made by the Officer most fa- miliar with his case. 30 The applicant also argues that he served his sentence for the two con- victions in 1999 and 2003 and the consequences that may now arise under the Act are tantamount to double jeopardy. 31 In summary, the applicant submits that the inordinate delay in pro- ceeding against him offends the public’s sense of fairness and will bring the administration of justice into disrepute. 32 More generally, the applicant submits that the impact of section 44 proceedings raise issues of human rights with limited or no remedies for those affected.

The Respondent’s Submissions 33 The respondent notes that determinations of whether there is an abuse of process depend on the specific facts and the context (Fabbiano at para 10, Blencoe at para 122) and moreover, such cases are “extremely rare” (Canada (Minister of Citizenship and Immigration) v. Ekwi, 2015 FC 305 (F.C.) at para 23). 34 The respondent submits that although the principles set out in Fabbi- ano are not in dispute, the facts, which led the Court to find an abuse of process and to stay the admissibility proceedings, are quite different. 35 In Fabbiano, the applicant moved to Canada when he was six years old and had lived in Canada for 51 years. The admissibility hearing was Faroon v. Canada (MCI) Catherine M. Kane J. 41

related to Mr Fabbiano’s alleged involvement in organized crime in the 1990s. Although Mr Fabbiano had one conviction, there was a lack of evidence about the organized crime allegations. Mr Fabbiano was ad- vised in 2006 that he might be inadmissible to Canada and he made sub- missions at that time, but heard nothing more until 2013 when he was given notice of his hearing. The Court noted that there were many H&C considerations at play, including his long establishment in Canada, steady employment, and medical issues, but he had no opportunity to make updated submissions. 36 The respondent notes the difference with the facts in the present case: the applicant’s two convictions are for serious crimes and are not in dis- pute; the applicant was advised in 2013 that he may be inadmissible; he made submissions at that time and made submissions again in September 2014 prior to the subsection 44(2) report; the notice of referral was pro- vided 18 months after the initial letter; and, the Officer’s report reflects consideration of the applicant’s submissions. 37 The respondent acknowledges that there was a considerable delay be- tween the convictions and the notice of referral. However, the 18 month delay is not comparable to the almost seven year delay in Fabbiano and to Mr Fabbiano’s inability to make recent submissions. 38 The respondent submits that delay without more does not constitute an abuse of process. The delay must be so oppressive as to taint the pro- ceedings. To find an abuse of process, it must be established that an un- reasonable delay was caused by the respondent and that the delay has caused prejudice to the applicant (Blencoe at paras 101, 121). In this case, the applicant has not provided any evidence of prejudice, only an assertion that his life has been affected by uncertainty since being ad- vised that he may be inadmissible in 2013. Even if the applicant were prejudiced by such uncertainty, the respondent argues that the applicant has not shown that the delay was so excessive as to constitute an abuse of process. 39 The respondent highlights that the referral for an admissibility hear- ing is based on the applicant’s two convictions and on paragraph 36(1)(a) of the Act for serious criminality, and not for organized criminality. Therefore, the applicant’s allegations about not knowing the case he has to meet are not relevant. The allegations regarding possible gang affilia- tion are not part of the inadmissibility report. Moreover, the Officers’ reports and the notations of the Manager demonstrate that the file was 42 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

reviewed in this period resulting in the referral proceeding on the basis of paragraph 36(1)(a) only. 40 The respondent notes that the applicant will be given the opportunity to respond to the issues raised in the subsection 44(2) report at the admis- sibility hearing. The applicant has not shown that his admissibility hear- ing will be compromised in any way by the 18 month delay in making the referral. He will have an opportunity to address the grounds of his inadmissibility. The respondent submits that an admissibility hearing is not a “rubber stamp” process as suggested by the applicant, and the Im- migration and Refugee Board will consider the report and the applicant’s submissions.

The Principles from the Jurisprudence 41 As noted above, the applicant relies extensively on the recent decision of this Court in Fabbiano, where Justice O’Reilly canvassed the relevant jurisprudence, provided a concise summary of the principles and pro- posed an approach to be applied. 42 It is helpful to set out the key passages in Fabbiano and elaborate on some of the principles with reference to the earlier jurisprudence. 43 Justice O’Reilly explained the concept of abuse of process, noting that unacceptable delay which causes significant prejudice is one situa- tion that could lead to such a finding, and where the proceedings have become oppressive for other reasons is another possible situation. He highlighted that a stay of proceedings for abuse of process is an ex- traordinary remedy, noted the test that must be met, explained the rele- vant factors to be considered and summarised the three step approach to determine whether a stay should be imposed. The relevant passages are at paras 8-10: [8] Abuse of process is a common law principle permitting courts to stop proceedings that have become unfair or oppressive. This in- cludes situations where there has been an unacceptable delay result- ing in significant prejudice (Blencoe v British Columbia (Human Rights Commission), [2000] 2 SCR 307, at para 101). A key question is whether the delay “impairs a party’s ability to answer the com- plaint” (at para 102). Alternatively, a court can provide a remedy where the proceedings have become oppressive for other reasons in- cluding, for example, where the person carried on with his life rea- sonably believing that no further action would be taken against him (Ratzclaff v British Columbia (Medical Services Commission) (1996), BCJ No 36 (BCCA) (QL), at para 23). Faroon v. Canada (MCI) Catherine M. Kane J. 43

[9] A stay of proceedings for an abuse of process is an extraordinary remedy reserved for the clearest cases of prejudice. To grant that remedy, “the court must be satisfied that, ‘the damage to the public interest in the fairness of the administrative process should the pro- ceeding go ahead would exceed the harm to the public interest in the enforcement of the legislation if the proceedings were halted’” (Blencoe at para 120, citing Brown and Evans, Judicial Review of Administrative Action in Canada (Toronto: Canvasback, 1998) at 9- 68). [10] Whether delay justifies a stay of proceedings depends on all of the circumstances, including the purpose and nature of the case, its complexity, the facts and issues involved, and whether the affected person contributed to or waived the delay (Blencoe, at para 122). The test is whether the delay caused “actual prejudice of such magnitude that the public’s sense of decency and fairness is affected” (at para 133). There are three steps in considering whether a stay should be imposed: 1. There must be prejudice to the person’s right to a fair trial or the integrity of the justice system. 2. There must be no adequate alternative remedy. 3. If there is uncertainty after steps 1 and 2, the court must bal- ance the interests favouring a stay (ego, denouncing miscon- duct or preserving the integrity of the justice system) against the public interest in having a decision on the merits (R v Babos, 2014 SCC 16, at para 32). 44 The leading case, from which many of the principles above are de- rived, is Blencoe. In Blencoe, the Supreme Court of Canada noted that delay on its own will not be sufficient to warrant a stay of proceedings: [101] In my view, there are appropriate remedies available in the ad- ministrative law context to deal with state-caused delay in human rights proceedings. However, delay, without more, will not warrant a stay of proceedings as an abuse of process at common law. Staying proceedings for the mere passage of time would be tantamount to imposing a judicially created limitation period (see: R. v. L. (W.K.), [1991] 1 S.C.R. 1091, at p. 1100; Akthar v. Canada (Minister of Em- ployment and Immigration), [1991] 3 F.C. 32 (C.A.). In the adminis- trative law context, there must be proof of significant prejudice which results from an unacceptable delay. [102] There is no doubt that the principles of natural justice and the duty of fairness are part of every administrative proceeding. Where delay impairs a party’s ability to answer the complaint against him or 44 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

her, because, for example, memories have faded, essential witnesses have died or are unavailable, or evidence has been lost, then adminis- trative delay may be invoked to impugn the validity of the adminis- trative proceedings and provide a remedy (D. J. M. Brown and J. M. Evans, Judicial Review of Administrative Action in Canada (loose- leaf), at p. 9-67; W. Wade and C. Forsyth, Administrative Law (7th ed. 1994), at pp. 435-36). It is thus accepted that the principles of natural justice and the duty of fairness include the right to a fair hear- ing and that undue delay in the processing of an administrative pro- ceeding that impairs the fairness of the hearing can be remedied (see, for example, J. M. Evans, H. N. Janisch and D. J. Mullan, Adminis- trative Law: Cases, Text, and Materials (4th ed. 1995), at p. 256; Wade and Forsyth, supra, at pp. 435-36; Nisbett, supra, at p. 756; Canadian Airlines, supra; Ford Motor Co. of Canada v. Ontario (Human Rights Commission) (1995), 24 C.H.R.R. D/464 (Ont. Div. Ct.); Freedman v. College of Physicians & Surgeons (New Brunswick) (1996), 41 Admin. L.R. (2d) 196 (N.B.Q.B.)). 45 The Court noted at para 115 that an unacceptable delay that may amount to an abuse of process is not limited to situations where the delay affects a fair hearing, and could include a delay that “has directly caused significant psychological harm to a person, or attached a stigma to a per- son’s reputation, such that the human rights system would be brought into disrepute, such prejudice may be sufficient to constitute an abuse of process.” The Court noted, however, that “few lengthy delays will meet this threshold.” 46 At para 120, the Court set out the test that to find an abuse of process, the court must be satisfied that: “the damage to the public interest in the fairness of the administrative process should the proceeding go ahead would exceed the harm to the public interest in the enforcement of the legislation if the proceedings were halted” and added that such cases will be rare. 47 The Court noted that a contextual analysis is required to determine whether the delay is inordinate at para 122: [122] The determination of whether a delay has become inordinate depends on the nature of the case and its complexity, the facts and issues, the purpose and nature of the proceedings, whether the re- spondent contributed to the delay or waived the delay, and other cir- cumstances of the case. As previously mentioned, the determination of whether a delay is inordinate is not based on the length of the delay alone, but on contextual factors, including the nature of the va- rious rights at stake in the proceedings, in the attempt to determine Faroon v. Canada (MCI) Catherine M. Kane J. 45

whether the community’s sense of fairness would be offended by the delay. 48 The Court reiterated, at para 133, that more than delay is required to find an abuse of process; the delay must cause real prejudice to the extent that it affects the public’s sense of decency and fairness. 49 The ultimate three part test or approach summarised in Fabbiano, was set out in R. c. Piccirilli, 2014 SCC 16 (S.C.C.), at para 32, [2014] 1 S.C.R. 309 (S.C.C.) [Babos] in the context of whether a stay of a crimi- nal prosecution should be granted, although the Supreme Court of Can- ada’s guidance extends beyond that context, with the necessary modifications. 50 In Babos, the accused alleged misconduct by the police in the investi- gation and by the Crown in the prosecution of the charges. The trial judge imposed a stay. On appeal, the stay was set aside. The Supreme Court of Canada agreed, noting that a stay is a drastic remedy in criminal proceedings (at para 30). The Court noted that two categories of cases may lead to an abuse of process and a stay of criminal proceedings: first, where state conduct compromises the fairness of an accused’s trial; and second, where state conduct creates no threat to trial fairness but risks undermining the integrity of the judicial process (at para 31). The Court then set out the test at para 32: [32] The test used to determine whether a stay of proceedings is war- ranted is the same for both categories and consists of three requirements: (1) There must be prejudice to the accused’s right to a fair trial or the integrity of the justice system that “will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome” (Regan, at para. 54); (2) There must be no alternative remedy capable of redressing the prejudice; and (3) Where there is still uncertainty over whether a stay is war- ranted after steps (1) and (2), the court is required to balance the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against “the interest that society has in having a final decision on the merits” (ibid., at para. 57).

There is no Abuse of Process 51 I appreciate that the consequences to the applicant arising from an admissibility hearing are significant. Counsel for the applicant made sub- 46 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

missions regarding the impact of recent changes to the Act on persons such as the applicant and argued that these changes are unjustified, do not permit consideration of countervailing factors, and, more generally, do not reflect Canada’s values. However, the role of the Court is to apply the law to the facts of the case before it. There are other fora to express concerns about the law and policy of the Government. 52 The delay, when looked at from the date of the applicant’s last con- viction to the subsection 44(2) report, is extensive and is unexplained. As the applicant noted, if the CBSA had serious concerns about him, it could have acted much earlier. I acknowledge that the impact on the applicant, who has been in Canada for over 25 years, and on his family may be harsh. However, I do not find that this is one of the rare or clearest of cases where an abuse of process has been established and where a stay of proceedings would be justified. 53 Adopting the same approach as Justice O’Reilly in Fabbiano, I have considered the following: the basis for the applicant’s claim of abuse of process, the purpose and nature of the applicant’s case and its complex- ity, the issues at stake, whether the applicant contributed to the delay, and whether the applicant was prejudiced by the delay. Based on these considerations, I have assessed whether the harm to the public interest in allowing the admissibility hearing to proceed would be greater than the harm caused by staying the admissibility hearing and have concluded that it would not. The public’s sense of decency and fairness would not be offended by allowing the admissibility hearing to proceed. 54 The applicant’s claim of abuse of process is based on the 18 month delay and the uncertainty in that period, and on the overall period since the date of his convictions. The applicant relies on Ratzlaff at para 20 to support his submission that the whole period should be considered. How- ever, the passage relied on pertains to the facts in Ratzlaff regarding a lengthy delay in moving forward with professional disciplinary charges against a doctor despite the doctor’s attempts, dating back ten years, to resolve the issue. The doctor retired thinking his billing dispute had been resolved. The British Columbia Court of Appeal found that the delay was egregious and amounted to an abuse of process even though a fair hear- ing could still be held. 55 Unlike the facts in Ratzlaff, the applicant did not engage with CBSA to determine the consequences of his convictions prior to receiving the initial letter in 2013. Although counsel for the applicant argued that he reported regularly and was available for interviews, the delay for which Faroon v. Canada (MCI) Catherine M. Kane J. 47

he argues that he was prejudiced due to uncertainty is only the delay from June 2013 to the date of receipt of the notice of referral in Novem- ber 2014. 56 There is no evidence that the delay between the initial letter and the referral decision has prejudiced the applicant. It has not impaired his ability to have a fair hearing and to answer the claims that underlie the referral, given that his convictions are a matter of record and are not in dispute. The references to association with gang members included in other reports are not the basis for the referral. There is no evidence that the applicant has conducted himself in any different manner since receiv- ing the initial letter relying on an assumption that no further action would be taken against him. Nor is there any evidence that the CBSA investiga- tion was improper in any way. 57 The length of time that it took for the referral to be made has not been explained. The facts are not complicated and it appears that the informa- tion which formed the basis for the referral was available much earlier. However, the delay cannot be characterised as inordinate. The record demonstrates that the applicant’s file was reviewed on a few occasions and, as a result of the review, the referral proceeded on the basis of para- graph 36(1)(a) of the Act and not on the basis of other information that had been considered. The reports on the record also demonstrate that the applicant’s submissions were considered. 58 Nor can the Minister’s decision to pursue the referral for an admissi- bility hearing be considered as double jeopardy. The applicant served the sentence for his convictions but there are additional consequences for a permanent resident who has criminal convictions, as provided in the Act. 59 The applicant was fully aware during the 18 month period that the investigation was ongoing. He was advised that the October 2013 report had been referred to a supervisor and he was later advised that additional information had been requested by the Minister’s delegate, that the deci- sion would be made within a few weeks, and that he could make addi- tional submissions and he did so. The delay did not impair his ability to answer the allegations. He knew that he could be referred to an admissi- bility hearing and he knew that he would be at risk of removal. 60 By comparison, in Fabbiano, more than six years elapsed between the initial letter in 2007 and the referral decision in 2013. Mr Fabbiano made submissions in 2007 and had no further opportunity to update his submissions. The Court found that after more than six years, it was rea- 48 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

sonable for Mr Fabbiano to conclude that he was no longer at risk of removal. 61 With respect to the delay between the applicant’s criminal convic- tions and the initial letter, while I agree that the respondent could have taken action much earlier, and no explanation has been provided for the lack of action, I am mindful of the words of the Court in Blencoe that “staying the proceedings for the mere passage of time would be tanta- mount to imposing a judicially created limitation period” (at para 101). 62 The jurisprudence is clear that delay alone is not enough; real prejudice must arise from the delay. The delay from the date of the con- victions, if this period should be considered, has not affected the appli- cant’s ability to address the allegations that the referral is based on. The convictions have been established and there is no need to find witnesses from 1999 or 2003 to establish or refute those convictions. 63 The applicant argues that he carried on with his life reasonably be- lieving that no further action would be taken against him following his convictions and sentence, however, there is no evidence of this, other than that he has two children and a common law partner. The Officer’s first “Section 44(1) and 55 Highlights Report — Inland Cases” noted that there is little evidence of establishment in Canada. The record indicates that one of his children was born before his first conviction, so it cannot be suggested that he chose to have a family in Canada on the assumption he would be immune from the consequences of his convictions. Nor is there any evidence that he conducted himself in a different manner after June 2013 or after failing to get prompt responses about the status of the inadmissibility proceedings on the assumption that no further action would be taken. In addition, he made submissions in July 2013 and in September 2014 which noted his family in Canada and other H&C re- lated factors. 64 Moreover, the Supreme Court of Canada has set a high bar for finding an abuse of process where the fairness of the hearing has not been com- promised. In Blencoe, the Court noted that it must “directly [cause] sig- nificant psychological harm to a person, or [attach] a stigma to a person’s reputation, such that the human rights system would be brought into dis- repute” (at para 115). 65 The applicant has not established such prejudice; his submission that he is established in Canada and will no doubt suffer psychological harm, does not reach the level of significant psychological harm or stigma to a person’s reputation. Faroon v. Canada (MCI) Catherine M. Kane J. 49

66 Although the 18 month delay would cause uncertainty and anxiety for anyone, including the applicant, I do not find that this delay was so lengthy as to be one of the extremely rare “clearest of cases” that consti- tute an abuse of process. 67 In summary, a stay of proceedings is an exceptional remedy reserved for the clearest of cases. Delay in pursuing proceedings, without more, is not enough. There must be prejudice to the applicant arising from an in- ordinate delay. In the present case, the delay is not inordinate and it has not impaired the ability of the applicant to respond to the subsection 44(2) report, nor has it caused the applicant psychological harm or other prejudice. Although the facts are not complicated, the delay has not been explained and the stakes are high for the applicant, to impose a stay based only on the delay is the same as imposing a limitation period on pursuing inadmissibility proceedings. 68 These considerations lead to the determination whether “the damage to the public interest in the fairness of the administrative process should the proceedings go ahead would exceed the harm to the public interest in the enforcement of the legislation in the proceedings were halted.” I can- not conclude that the public interest would be damaged by proceeding with the subsection 44(2) admissibility hearing. If the inadmissibility proceedings are permanently stayed, only due to the passage of time, and not due to any prejudice to the applicant other than uncertainty regarding the next steps over an 18 month period, the integrity of the justice system would arguably be more damaged. In my view, the public interest is best served by the admissibility hearing proceeding and being determined on its merits. 69 The applicant submits that if the three part test in Fabbiano (which as I noted above, is derived from Babos) is applied, the Court should con- clude that there is no other adequate remedy other than a stay. I have considered and applied that test. As noted, I do not find that there has been a prejudice to the accused. He continues to have the ability to an- swer the allegations at his admissibility hearing. He has not established any other prejudice. Nor do I find that the integrity of the justice system has been prejudiced. Stage two of the test, the consideration of an ade- quate alternative remedy, only comes into play once the Court finds that there has been prejudice. An alternative remedy would be aimed at ad- dressing or correcting any prejudice short of imposing the stay of pro- ceedings. No prejudice has been found, so no alternative remedy need be considered. 50 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

70 The facts of this case simply do not meet the high threshold estab- lished in the jurisprudence to find an abuse of process and to, in turn, order a stay of proceedings.

There has been no breach of the applicant’s Section 7 rights 71 The applicant submits that a delay in administrative procedures can violate security of the person if the delay causes psychological harm (Mahjoub, Re, 2013 FC 1095 (F.C.) at para 252 [Mahjoub]). The appli- cant reiterates that the delay was inordinate, unexplained, caused him prejudice and that proceeding now would be oppressive. 72 In Mahjoub, the Court stated with respect to section 7: [252] Turning to section 7 of the Charter, a violation of procedural fairness amounting to a violation of fair trial rights when an indivi- dual’s liberty is engaged may occur through significant prejudice caused by unacceptable delay (Blencoe at paragraph 101). Such prejudice may be established in two ways. First, administrative delay may warrant a remedy where a party’s ability to assert its case is impaired, for example if essential witnesses have died, the memories of witnesses have faded, or evidence is lost (ibid. at paragraph 102). Second, delay may warrant a remedy where the affected individual experiences significant psychological harm or reputation stigma, such that the administrative process suffers disrepute and the delay constitutes an abuse of process. Justice Bastarache emphasized the rare circumstances under which even a lengthy delay will reach this threshold (ibid. at paragraph 115). He also highlighted the impor- tance of a direct causal connection between the delay and the harm suffered (ibid. at paragraph 133). 73 Given the high threshold established in Mahjoub, there is no violation of the applicant’s section 7 rights. The applicant has not established that his ability to participate in his admissibility hearing and answer the alle- gations has been impaired. There is no evidence of any impact on the applicant’s reputation or other stigma or psychological harm. His sub- mission that it can be assumed or presumed that the delay would occa- sion psychological harm to him is not sufficient to establish psychologi- cal harm.

Judgment THIS COURT’S JUDGMENT IS THAT: 1. The application for judicial review is dismissed. Faroon v. Canada (MCI) Catherine M. Kane J. 51

2. There is no certified question. Application dismissed. 52 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

[Indexed as: Valverde v. Canada (Minister of Citizenship and Immigration)] Carlota Segura Valverde, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: T-1014-14 2015 FC 1111, 2015 CF 1111 John A. O’Keefe J. Heard: March 16, 2015 Judgment: September 15, 2015 Immigration and citizenship –––– Citizenship — Application for grant of or retention of citizenship — Procedure –––– Application for writ of manda- mus — Applicant was citizen of Mexico who arrived in Canada in May 2003 and was granted refugee status and later permanent resident status — In June 2012, applicant applied for Canadian citizenship — In December 2012, cessa- tion provisions under Immigration and Refugee Protection Act (Act) came into force (cessation provisions) — Pursuant to cessation provisions, foreign national became inadmissible and lost his or her permanent residency on final determina- tion that his or her refugee protection had ceased — In April 2013, note was made in Global Case Management System that applicant’s immigration clear- ance was “passed” — On August 15, 2013, Minister of Citizenship and Immi- gration (Minister) referred applicant for proceedings under cessation provisions and placed hold on applicant’s citizenship application (hold) — Applicant brought application for writ of mandamus compelling Minister to forthwith con- tinue processing her citizenship application — Application granted — Applicant satisfied all seven elements established by Federal Court of Appeal for issuance of writ of mandamus — Minister had mandatory duty to continue processing ap- plicant’s citizenship application because hold was not authorized by statute — Section 17 of Act could not authorize hold as there was no indication that Min- ister was of opinion that applicant had provided insufficient information — Sec- tion 13.1 of Act could not authorize hold because it had not yet come into force on date of hold — Applicant met all statutory requirements for citizenship and her application would have been referred to citizenship judge if not for hold — Hold resulted in unreasonable delay in performance of Minister’s statutory obli- gation to refer applicant’s file to citizenship judge for consideration — There was no other adequate remedy available, no equitable bar to relief sought, and balance of convenience sided with applicant. Valverde v. Canada (MCI) 53

Administrative law –––– Prerogative remedies — Mandamus — Perform- ance of public duty — General principles –––– Processing of citizenship appli- cation — Applicant was citizen of Mexico who arrived in Canada in May 2003 and was granted refugee status and later permanent resident status — In June 2012, applicant applied for Canadian citizenship — In December 2012, cessa- tion provisions under Immigration and Refugee Protection Act (Act) came into force (cessation provisions) — Pursuant to cessation provisions, foreign national became inadmissible and lost his or her permanent residency on final determina- tion that his or her refugee protection had ceased — In April 2013, note was made in Global Case Management System that applicant’s immigration clear- ance was “passed” — On August 15, 2013, Minister of Citizenship and Immi- gration (Minister) referred applicant for proceedings under cessation provisions and placed hold on applicant’s citizenship application (hold) — Applicant brought application for writ of mandamus compelling Minister to forthwith con- tinue processing her citizenship application — Application granted — Applicant satisfied all seven elements established by Federal Court of Appeal for issuance of writ of mandamus — Minister had mandatory duty to continue processing ap- plicant’s citizenship application because hold was not authorized by statute — Section 17 of Act could not authorize hold as there was no indication that Min- ister was of opinion that applicant had provided insufficient information — Sec- tion 13.1 of Act could not authorize hold because it had not yet come into force on date of hold — Applicant met all statutory requirements for citizenship and her application would have been referred to citizenship judge if not for hold — Hold resulted in unreasonable delay in performance of Minister’s statutory obli- gation to refer applicant’s file to citizenship judge for consideration — There was no other adequate remedy available, no equitable bar to relief sought, and balance of convenience sided with applicant. Cases considered by John A. O’Keefe J.: Canada (Minister of Citizenship & Immigration) v. Parekh (2010), 2010 FC 692, 2010 CarswellNat 1994, 372 F.T.R. 196 (Eng.), [2012] 1 F.C.R. 169, 2010 CF 692, 2010 CarswellNat 6193, [2010] F.C.J. No. 856 (F.C.) — considered Conille v. Canada (Minister of Citizenship & Immigration) (1998), [1999] 2 F.C. 33, (sub nom. Conille v. Canada (Ministre de la Citoyennet´e et de l’Immigration)) 159 F.T.R. 215, 1998 CarswellNat 2788, 15 Admin. L.R. (3d) 157, 1998 CarswellNat 2905, [1998] F.C.J. No. 1553 (Fed. T.D.) — considered Dragan v. Canada (Minister of Citizenship & Immigration) (2003), 2003 FCT 211, 2003 CarswellNat 467, 2003 CFPI 211, 2003 CarswellNat 1525, 227 F.T.R. 272, 224 D.L.R. (4th) 738, 27 Imm. L.R. (3d) 157, [2003] F.C.J. No. 260, [2003] 4 F.C. 189 (Fed. T.D.) — followed 54 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

Jaber v. Canada (Minister of Citizenship and Immigration) (2013), 2013 FC 1185, 2013 CarswellNat 4432, 2013 CF 1185, 2013 CarswellNat 4646, 443 F.T.R. 188 (Eng.) (F.C.) — considered Khan v. Canada (Minister of Citizenship and Immigration) (2012), 2012 FC 1488, 2012 CarswellNat 4984, 2012 CF 1488, 2012 CarswellNat 5466, 15 Imm. L.R. (4th) 118, (sub nom. Ali Khan v. Canada (Minister of Citizenship and Immigration)) 423 F.T.R. 268 (Eng.), [2012] F.C.J. No. 1586 (F.C.) — considered Murad v. Canada (Minister of Citizenship and Immigration) (2013), 2013 FC 1089, 2013 CarswellNat 4024, 2013 CF 1089, 2013 CarswellNat 5396, [2013] F.C.J. No. 1182, 441 F.T.R. 216 (Eng.) (F.C.) — considered Ovalle v. Canada (Minister of Citizenship and Immigration) (2015), 2015 FC 935, 2015 CarswellNat 3272 (F.C.) — considered Platonov v. Canada (Minister of Citizenship & Immigration) (2005), 2005 FC 569, 2005 CarswellNat 1048, 2005 CF 569, 2005 CarswellNat 4484, [2005] F.C.J. No. 695 (F.C.) — considered Seyoboka c. Canada (Ministre de la Citoyennet´e & de l’Immigration) (2005), 2005 CF 1290, 2005 CarswellNat 3015, 2005 FC 1290, 2005 CarswellNat 5690, [2005] F.C.J. No. 1611 (F.C.) — considered Stanizai v. Canada (Minister of Citizenship and Immigration) (2014), 2014 FC 74, 2014 CarswellNat 128, 2014 CF 74, 2014 CarswellNat 520, 22 Imm. L.R. (4th) 261, 73 Admin. L.R. (5th) 58, 446 F.T.R. 188 (Eng.), [2014] F.C.J. No. 97 (F.C.) — considered Tapie c. Canada (Ministre de la Citoyennet´e & de l’Immigration) (2007), 2007 CF 1048, 2007 CarswellNat 3434, 2007 FC 1048, 2007 CarswellNat 5601, [2007] F.C.J. No. 1368 (F.C.) — considered Tumarkin v. Canada (Minister of Citizenship and Immigration) (2014), 2014 FC 915, 2014 CarswellNat 3609, 2014 CF 915, 2014 CarswellNat 3852, [2014] F.C.J. No. 918 (F.C.) — referred to Statutes considered: Citizenship Act, R.S.C. 1985, c. C-29 Generally — referred to s. 5(1) — considered s. 5(1)(c) — considered s. 13.1 [en. 2014, c. 22, s. 11] — considered s. 13.1(a) [en. 2014, c. 22, s. 11] — considered s. 14(1.1) [en. 1995, c. 15, s. 23] — considered s. 17 — considered s. 20 — considered s. 22 — considered Federal Courts Act, R.S.C. 1985, c. F-7 s. 18(1) — pursuant to Valverde v. Canada (MCI) John A. O’Keefe J. 55

Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 40.1 [en. 2012, c. 17, s. 18] — considered s. 46 — considered s. 46(1)(c.1) [en. 2012, c. 17, s. 19(1)] — considered s. 108 — considered s. 108(1)(a)-108(1)(d) — referred to s. 108(2) — considered Privacy Act, R.S.C. 1985, c. P-21 Generally — referred to Regulations considered: Citizenship Act, R.S.C. 1985, c. C-29 Citizenship Regulations, 1993, SOR/93-246 s. 11(1) — considered s. 11(5) — considered

APPLICATION by permanent resident for writ of mandamus compelling Min- ister of Citizenship and Immigration to continue processing her citizenship application.

Michelle Poulsen, for Applicant Banafsheh Sokhansanj, Timothy Fairgrieve, for Respondent

John A. O’Keefe J.:

1 This is an application for an order of mandamus regarding the appli- cant’s citizenship application pursuant to subsection 18(1) of the Federal Courts Act, RSC, 1985, c F-7. 2 The applicant seeks a writ of mandamus, compelling Citizenship and Immigration Canada (CIC), acting on behalf of the Minister of Citizen- ship and Immigration, to forthwith continue processing the applicant’s application for Canadian citizenship by removing the hold on her file and completing the checks authorized by the Citizenship Act, RSC 1985, c C- 29.

I. Background 3 The applicant is a citizen of Mexico. On May 25, 2003, she arrived in Canada. She claimed refugee protection which was subsequently granted. 4 On January 27, 2005, the applicant acquired permanent resident status in Canada. 56 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

5 During her residence in Canada, she entered into a common law rela- tionship with a Canadian citizen in 2006 and in 2010, she and her hus- band had a daughter, who is a Canadian citizen. 6 In 2010, the applicant renewed her permanent resident status. 7 In June 2012, the applicant applied for Canadian citizenship. 8 On December 15, 2012, the cessation provisions under sections 40.1 and 46 of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA or the Act] came into force. Section 40.1 provides that a foreign national is inadmissible in Canada on a final determination that his or her refugee protection has ceased in accordance with section 108 of the IRPA. Paragraph 46(1)(c.1) provides for a concurrent loss of permanent resident status when there is a final determination that a permanent resi- dent has ceased to be a Convention refugee or a person in need of protec- tion for any of the reasons set out in paragraphs 108(1)(a) to (d) of the IRPA. 9 On April 2, 2013, a note was made in the Global Case Management System (GCMS) that the security clearance for the applicant was “passed”. On April 3, 2013, a note was made in the GCMS that the crim- inal clearance for the applicant was “passed” and on April 10, 2013, a note was made in GCMS that the immigration clearance for the applicant was “passed”. 10 On August 15, 2013, the applicant passed her citizenship exam. At that time, she met the residency requirements and had valid RCMP, se- curity and immigration checks. On the same day, CIC referred the appli- cant to the Canada Border Services Agency (CBSA) for cessation pro- ceedings and put the application on hold. The CIC referred to the fact that the applicant had travelled back to Mexico two times in 2008 and again in 2010. 11 On September 19, 2013, CBSA filed an application for cessation of the applicant’s refugee status with the Refugee Protection Division of the Immigration and Refugee Board (the Board). The cessation hearing was scheduled for January 23, 2014. 12 On January 26, 2014, the applicant made an on-line access to infor- mation and privacy request (ATIP request) pursuant to the Privacy Act, RSC 1985, c P-21, for the contents of her permanent resident and citizen- ship file. 13 On January 30, 2014, the applicant sent a letter to CIC advising that suspension of her citizenship application pending a cessation application Valverde v. Canada (MCI) John A. O’Keefe J. 57

was not permitted by the Citizenship Act and requested CIC to continue processing her application. 14 On February 5, 2014, the CIC incorrectly advised the applicant over the phone that there was no hold on her file. 15 On March 25, 2014, the applicant made another request to CIC to continue processing her application. 16 On May 21, 2014, the immigration clearance was updated to “not passed” due to pending proceedings pursuant to subsection 108(2) of the IRPA for cessation. 17 On August 1, 2014, section 13.1 of the Citizenship Act came into force, providing explicit authority for the Minister to suspend processing a citizenship application for as long as is necessary to receive the results of any inquiry that would implicate the applicant’s qualification for citi- zenship. The GCMS was updated subsequently due to this section to for- mally note that the applicant’s citizenship application is suspended pur- suant to section 13.1.

II. Decision Under Review 18 This is an application for an order of mandamus regarding the appli- cant’s citizenship application.

III. Issues 19 The applicant raised the following issues for my review: 1. Did the Minister breach trust by providing the Court with an in- complete record? 2. Has the applicant met the test for an order of mandamus? The applicant informed me at the hearing that the first issue was not be- ing pursued. 20 The respondent raises one issue: the applicant has not established that the criteria for an order for mandamus are met. Processing of the appli- cant’s grant application is suspended under section 13.1 of the Citizen- ship Act pending resolution of doubt about her qualification for citizen- ship, specifically, the determination of the Board cessation proceeding that directly implicates her permanent resident status. 21 I would state the issue as the following: has the applicant met the test for an order of mandamus? 58 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

IV. Applicant’s Written Submissions 22 The applicant sets out the test for an order of mandamus under Dragan v. Canada (Minister of Citizenship & Immigration), 2003 FCT 211 (Fed. T.D.) at paragraph 39, [2003] 4 F.C. 189 (Fed. T.D.) [Dragan] and submits all the elements are met in the present case. 23 First, the applicant submits the Minister has a mandatory duty to con- tinue processing her application. Here, the Registrar’s inquiries were complete as set out under subsection 11(1) of the Citizenship Regula- tions, SOR/93-246 [the Regulations]. The Registrar has a mandatory duty to then forward the application to a citizenship judge pursuant to subsection 11(5) of the Regulations, as evidenced by the use of the action word “shall” in the statute. All the information in the present case had been collected and the applicant met all the requirements. 24 The applicant argues the ruling under Stanizai v. Canada (Minister of Citizenship and Immigration), 2014 FC 74, [2014] F.C.J. No. 97 (F.C.) [Stanizai] applies to the Minister. In the present case, similar to Stanizai, the respondent was fully aware of all the information that it now says gives rise to concerns regarding the ongoing validity of the applicant’s refugee status from at least 2010. In contrast to Platonov v. Canada (Minister of Citizenship & Immigration), 2005 FC 569, [2005] F.C.J. No. 695 (F.C.) [Platonov], where in that case, there was an out- standing immigration clearance. The applicant in the present case passed all the clearances. The applicant submits in the present case, it is a circu- lar argument that CIC refuses to allow a citizenship judge to consider the application until an immigration clearance is obtained, but the applicant had an immigration clearance at the relevant time until it was reversed eight months later. 25 In Conille v. Canada (Minister of Citizenship & Immigration) (1998), [1999] 2 F.C. 33, [1998] F.C.J. No. 1553 (Fed. T.D.) [Conille], the Court found that procedural fairness demands that the Registrar inform the ap- plicant that an investigation is ongoing, delaying a decision on the citi- zenship application. In the present case, the applicant was never advised that her application was on hold and she argues CIC denied that her ap- plication was on hold during her correspondence with it. Further, the ap- plicant has never been the subject of an admissibility hearing. Also, none of the prohibitions under sections 20 or 22 of the Citizenship Act apply to her. 26 Second, the applicant submits that she has satisfied the conditions precedent giving rise to the duty. She argues that she has met all require- Valverde v. Canada (MCI) John A. O’Keefe J. 59

ments for citizenship set out under subsection 5(1) of the Citizenship Act. In Murad v. Canada (Minister of Citizenship and Immigration), 2013 FC 1089 (F.C.) at paragraph 61, [2013] F.C.J. No. 1182 (F.C.), this Court implied that the right to citizenship vests at the time citizenship should have been granted and what happens thereafter is irrelevant. 27 The applicant argues that her citizenship should and would have been granted to her within 60 days of referral to the judge had the process not been improperly suspended. In the present case, none of the prohibitions listed under subsection 14(1.1) of the Citizenship Act concerning an ad- missibility hearing of section 17 concerning insufficient information and under section 22 concerning criminal offence apply to the applicant. 28 Third, the applicant submits there were prior demands for perform- ance of the duty, a reasonable time for the Minister to comply with the demands and the Minister refused to act on the duty. The applicant had requested in letters that CIC continue processing her application on Janu- ary 30, 2014 and again on March 25, 2014. CIC was given three weeks to comply but failed to do so. On February 5, 2014, CIC incorrectly ad- vised the applicant that there was no hold on her file. 29 In the present case, CIC improperly suspended the applicant’s appli- cation without legislative authority. The applicant argues that the only reason for the hold on her file is the cessation proceedings, which at the time, was not authorized by the legislation. Also, the reversal of her im- migration clearance is not a legislated requirement. 30 Fourth, the applicant submits there is no other adequate remedy avail- able to the applicant and the order sought will be of some practical value or effect. She argues that the harm she will suffer if mandamus is not granted is irreparable. Here, CIC refuses to continue processing the ap- plication by referring it to a citizenship judge and there is no remedy other than mandamus to compel CIC to continue the processing. The ces- sation provisions, sections 40.1 and 46 of the IRPA, were passed in De- cember 2012. Prior to those changes, the applicant would not have lost her permanent residency even if the Minister were successful in a cessa- tion application. The applicant argues if the cessation application is ac- cepted, then she will lose her permanent resident status and be removed from Canada. She would be separated from her Canadian spouse and her Canadian born child. Therefore, the harm is irreparable. 31 The applicant argues the cessation hearing is an abuse of process pur- suant to Canada (Minister of Citizenship & Immigration) v. Parekh, 2010 FC 692, [2012] 1 F.C.R. 169 (F.C.). Here, the CBSA moved for- 60 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

ward with a cessation application in September 2013 based on informa- tion that had been noted on file since May 2010. In 2010, her travels to Mexico were already examined in detail by a CIC officer who renewed her permanent residence card. 32 Lastly, the applicant submits there is no equitable bar to the Court’s exercise of discretion and the balance of convenience lies with her in issuing an order of mandamus.

V. Respondent’s Written Submissions 33 The respondent submits an order of mandamus should not be issued because there is a valid basis for suspending the processing of the appli- cant’s citizenship application. For a writ of mandamus to issue, an appli- cant has to demonstrate that officials have been unresponsive, slow or have not dealt with the issue in a reasonable manner (Tumarkin v. Canada (Minister of Citizenship and Immigration), 2014 FC 915 (F.C.) at paragraphs 17 and 18, [2014] F.C.J. No. 918 (F.C.)). 34 First, the respondent submits the processing of the application was put on hold properly and now, pursuant to section 13.1 of the Citizenship Act. This is a clear and lawful basis to suspend the processing of the application. The applicant’s proposed processing scheme would entail an unprincipled and disorderly race between the processing of the citizen- ship application and the determination of the cessation application. This is contrary to law and would put the Minister in the untenable position of having conflicting public legal duties. 35 Under section 108 of the IRPA, if a Convention refugee voluntarily re-avails herself of the protection of the country from which she claimed refuge, the Board may find that her refugee protection has ceased and she would lose her permanent resident status by operation of paragraph 46(1)(c.1) of the IRPA and also for the purposes of qualification under paragraph 5(1)(c) of the Citizenship Act. 36 Second, the respondent submits there is no public legal duty requiring the Minister to determine the citizenship application until after the Board’s determination of the cessation proceedings. The Minister not only has the legal authority to suspend processing, but also the process- ing time is well within CIC’s estimated average timelines. 37 In most routine cases, inquiries about an applicant’s qualifications will be completed within two years. In non-routine cases, completion may take closer to three years. In some cases, processing may be sus- pended pending the outcome of an investigation or proceeding. Here, the Valverde v. Canada (MCI) John A. O’Keefe J. 61

applicant submitted her citizenship application in July 2012, she was in- terviewed by a CIC officer in August 2013 and then referred for cessa- tion application by the operation of paragraphs 46(1)(c.1) and 108(1)(a) of the IRPA. The applicant’s immigration clearance was not positive, in contravention of the applicant’s contention. Because the outcome of the inquiries depends on the outcome of the cessation application, the citi- zenship application has never been placed in queue for referral and is currently suspended pending the Board’s determination of the cessation application. Less than 22 months had elapsed when the application for mandamus was filed. 38 The respondent argues in Platonov, the Court has found the time for processing a citizenship application is not considered unreasonable where the inquiry is being pursued diligently or the elapsed time is not more than the nature of the process requires. In the case at bar, the time- line for processing the applicant’s citizenship application remains within estimated average timelines. Also, the Minister promptly filed the cessa- tion application in September 2013 after the CIC officer referred the rele- vant information to the CBSA hearings officer in August 2013. 39 The respondent relies on Jaber v. Canada (Minister of Citizenship and Immigration), 2013 FC 1185 (F.C.) at paragraph 32, (2013), 443 F.T.R. 188 (Eng.) (F.C.), [Jaber]; Khan v. Canada (Minister of Citizenship and Immigration), 2012 FC 1488 (F.C.) at paragraphs 11 and 15, [2012] F.C.J. No. 1586 (F.C.), [Khan], Tapie c. Canada (Ministre de la Citoyennet´e & de l’Immigration), 2007 FC 1048 (F.C.) at paragraphs 9 to 12, [2007] F.C.J. No. 1368 (F.C.), [Tapie] and Seyoboka c. Canada (Ministre de la Citoyennet´e & de l’Immigration), 2005 FC 1290 (F.C.) at paragraph 10, [2005] F.C.J. No. 1611 (F.C.) [Seyoboka]. It submits this Court has repeatedly recognized in both the citizenship and permanent residence contexts that an applicant’s immigration status should be con- clusively settled, including by the Board in cessation proceedings, before his or her application can be determined. 40 Further, the respondent distinguishes the present case from Stanizai. In Stanizai, the grant application had already been approved by a citizen- ship judge (at paragraphs 29 and 30); but in this case, the application was not even referred to a citizenship judge, let alone granting an approval. Also, unlike Stanizai, there is no lengthy delay following a citizenship judge’s decision in the present case. Further, the Court in Stanizai did not advert to the inquiry process under the then subsection 11(1) of the Reg- 62 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

ulations and could not have considered the effect of the newly enacted section 13.1 of the Citizenship Act. 41 Further, the respondent argues that it is possible that the Board could determine that the applicant’s refugee protection has not ceased. 42 Therefore, the respondent submits the legal authority under subsec- tion 11(1) of the Regulations and now subsection 13.1(a) of the Citizen- ship Act nullifies the applicant’s contention that the Minister has a public legal duty to continue processing her citizenship application. Accord- ingly, an order for mandamus is not warranted.

VI. Analysis and Decision A. Issue 1 — Has the applicant met the test for an order of mandamus? 43 Here, I find the applicant has met the test for an order of mandamus. In Dragan at paragraph 39, Mr. Justice Michael Kelen reiterated the seven elements established by the Federal Court of Appeal for the issu- ance of a writ of mandamus: In Apotex Inc. v. Canada (A.G.), [1994] 1 F.C. 742 (C.A.), aff’d [1994] 3 S.C.R. 1100, the Federal Court of Appeal conducted an ex- tensive review of the jurisprudence relating to mandamus and out- lined the following conditions that need to be satisfied for the Court to issue a writ of mandamus: (1) There must be a public legal duty to act. (2) The duty must be owed to the applicant. (3) There is a clear right to the performance of that duty, in par- ticular: (a) the applicant has satisfied all conditions precedent giving rise to the duty; (b) there was (i) a prior demand for performance of the duty; (ii) a reasonable time to comply with the de- mand unless refused outright; and (iii) a subsequent refusal which can be either expressed or implied, e.g. unreasonable delay. (4) No other adequate remedy is available to the applicant. (5) The order sought will be of some practical value or effect. (6) The Court in the exercise of discretion finds no equitable bar to the relief sought. (7) On a “balance of convenience” an order in the nature of man- damus should issue. Valverde v. Canada (MCI) John A. O’Keefe J. 63

44 Section 17 of the Citizenship Act, which reads as follows, was re- pealed on July 31, 2014: 17. Where a person has made an application under this Act and the Minister is of the opinion that there is insufficient information to as- certain whether that person meets the requirements of this Act and the regulations with respect to the application, the Minister may sus- pend the processing of the application for the period, not to exceed six months immediately following the day on which the processing is suspended, required by the Minister to obtain the necessary information. 17. S’il estime ne pas avoir tous les renseignements n´ecessaires pour lui permettre d’´etablir si le demandeur remplit les conditions pr´evues par la pr´esente loi et ses r`eglements, le ministre peut suspendre la proc´edure d’examen de la demande pendant la p´eriode n´ecessaire — qui ne peut d´epasser six mois suivant la date de la suspension — pour obtenir les renseignements qui manquent. 45 Subsection 11(1) of the Regulations was repealed on July 31, 2014 and replaced by section 13.1 of the Act on August 1, 2014. These sec- tions read as follows, respectively: 11. (1) On receipt of an application made in accordance with subsec- tion 3(1), 3.1(1), 7(1) or 8(1), the Registrar shall cause to be com- menced the inquiries necessary to determine whether the person in respect of whom the application is made meets the requirements of the Act and these Regulations with respect to the application. (2) If a person who makes an application referred to in subsection 3(1) fails to provide the materials described in subsection 3(4), the citizenship officer to whom the application has been forwarded shall send a notice in writing by mail to the person, at their latest known address, advising that the person is required to provide the materials to that citizenship officer by the date specified in the notice. (3) If a person who makes an application referred to in subsection 3.1(1), 7(1) or 8(1) fails to provide the materials described in subsec- tions 3.1(1), 7(3) or 8(2), as the case may be, the Registrar shall send a notice in writing by mail to the person, at their latest known ad- dress, advising that the person is required to provide the materials to the Registrar by the date specified in the notice. (4) If a person, other than a person who makes an application re- ferred to in subsection 3.1(1), fails to comply with a notice sent under subsection (2) or (3), the citizenship officer or the Registrar, as the case may be, shall send a second notice in writing by mail to the person, at their latest known address, advising that the person is re- 64 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

quired to provide the materials described in subsection 3(4), 7(3) or 8(2), as the case may be, to the Registrar or to the citizenship officer, as the case may be, by the date specified in the notice. (5) After completion of the inquiries commenced under subsection (1), the Registrar shall (a) in the case of an application and materials filed in accordance with subsection 3(1), request the citizenship officer to whom the application and materials have been forwarded to refer the application and materials to a citizenship judge for considera- tion; and (b) in the case of an application and materials filed under subsec- tion 3.1(1), 7(1) or 8(1), forward the application and materials to a citizenship officer of the citizenship office that the Regis- trar considers appropriate in the circumstances, and request the citizenship officer to refer the application and materials to a citizenship judge for consideration. ... 13.1 The Minister may suspend the processing of an application for as long as is necessary to receive (a) any information or evidence or the results of any investiga- tion or inquiry for the purpose of ascertaining whether the ap- plicant meets the requirements under this Act relating to the application, whether the applicant should be the subject of an admissibility hearing or a removal order under the Immigra- tion and Refugee Protection Act or whether section 20 or 22 applies with respect to the applicant; and (b) in the case of an applicant who is a permanent resident and who is the subject of an admissibility hearing under the Immi- gration and Refugee Protection Act, the determination as to whether a removal order is to be made against the applicant. 11. (1) Sur r´eception d’une demande vis´ee aux paragraphes 3(1), 3.1(1), 7(1) ou 8(1), le greffier fait entreprendre les enquˆetes n´eces- saires pour d´eterminer si la personne faisant l’objet de la demande remplit les exigences applicables de la Loi et du pr´esent r`eglement. (2) Si la personne qui pr´esente une demande vis´ee au paragraphe 3(1) ne fournit pas les documents pr´evus au paragraphe 3(4), l’agent de la citoyennet´e a` qui la demande a et´´ e transmise lui envoie un avis ecrit´ a` sa derni`ere adresse connue, par courrier, l’informant qu’elle doit lui fournir ces documents dans le d´elai qui y est pr´ecis´e. (3) Si la personne qui pr´esente une demande vis´ee aux paragraphes 3.1(1), 7(1) ou 8(1) ne fournit pas les documents pr´evus aux Valverde v. Canada (MCI) John A. O’Keefe J. 65

paragraphes 3.1(1), 7(3) ou 8(2), selon le cas, le greffier lui envoie un avis ecrit´ a` sa derni`ere adresse connue, par courrier, l’informant qu’elle doit lui fournir ces documents dans le d´elai qui y est pr´ecis´e. (4) Si la personne qui pr´esente une demande, autre que celle vis´ee au paragraphe 3.1(1), ne se conforme pas a` l’avis donn´e en application des paragraphes (2) ou (3), l’agent de la citoyennet´e ou le greffier, selon le cas, lui envoie un second avis ecrit´ a` sa derni`ere adresse connue, par courrier, l’informant qu’elle doit lui fournir les docu- ments pr´evus aux paragraphes 3(4), 7(3) ou 8(2), selon le cas, dans le d´elai qui y est pr´ecis´e. (5) Une fois que les enquˆetes entreprises en vertu du paragraphe (1) sont termin´ees, le greffier : a) dans le cas d’une demande et des documents d´epos´es con- form´ement au paragraphe 3(1), demande a` l’agent de la citoyennet´e a` qui ils ont et´´ e transmis d’en saisir le juge de la citoyennet´e; b) dans le cas d’une demande et des documents d´epos´es con- form´ement aux paragraphes 3.1(1), 7(1) ou 8(1), les transmet a` l’agent de la citoyennet´e du bureau de la citoyennet´e qu’il juge comp´etent en l’esp`ece et lui demande d’en saisir le juge de la citoyennet´e. ... 13.1 Le ministre peut suspendre, pendant la p´eriode n´ecessaire, la proc´edure d’examen d’une demande: a) dans l’attente de renseignements ou d’´el´ements de preuve ou des r´esultats d’une enquˆete, afin d’´etablir si le demandeur remplit, a` l’´egard de la demande, les conditions pr´evues sous le r´egime de la pr´esente loi, si celui-ci devrait faire l’objet d’une enquˆete dans le cadre de la Loi sur l’immigration et la protection des r´efugi´es ou d’une mesure de renvoi au titre de cette loi, ou si les articles 20 ou 22 s’appliquent a` l’´egard de celui-ci; b) dans le cas d’un demandeur qui est un r´esident permanent qui a fait l’objet d’une enquˆete dans le cadre de la Loi sur l’immigration et la protection des r´efugi´es, dans l’attente de la d´ecision sur la question de savoir si une mesure de renvoi devrait etreˆ prise contre celui-ci. 46 In my view, the main determination for me in the present case is whether or not CIC had the authority to put the applicant’s citizenship application on hold on August 15, 2013, when at that time, the applicant 66 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

had passed her citizenship exam, met the residency requirements and had valid RCMP, security and immigration checks. 47 The applicant submits that her citizenship should and would have been granted to her within 60 days of referral to the judge, had the pro- cess not been improperly suspended. I agree in part. It is up to the citi- zenship judge, not me, to make this ruling. The citizenship judge has not yet had the opportunity to make that ruling as the applicant’s application was not referred to a citizenship judge but was put on hold. I am of the view that the applicant’s application should have been referred to the cit- izenship judge because none of the prohibitions justifying a hold on her citizenship application apply. She was not subjected to an admissibility hearing under subsection 14(1.1) of the Citizenship Act, or submitted in- sufficient information under section 17 of the Citizenship Act, or had is- sues of criminality under sections 20 and 22 of the Citizenship Act. 48 Paragraph 5(1)(c) of the Citizenship Act details the requirement of immigration clearance: 5. (1) The Minister shall grant citizenship to any person who ... (c) is a permanent resident within the meaning of subsec- tion 2(1) of the Immigration and Refugee Protection Act, and has, within the four years immediately preceding the date of his or her application, accumulated at least three years of residence in Canada calculated in the following manner: (i) for every day during which the person was resi- dent in Canada before his lawful admission to Canada for permanent residence the person shall be deemed to have accumulated one-half of a day of residence, and (ii) for every day during which the person was resi- dent in Canada after his lawful admission to Can- ada for permanent residence the person shall be deemed to have accumulated one day of residence; 5. (1) Le ministre attribue la citoyennet´e a` toute personne qui, a` la fois: ... c) est un r´esident permanent au sens du paragraphe 2(1) de la Loi sur l’immigration et la protection des r´efugi´es et a, dans les quatre ans qui ont pr´ec´ed´e la date de sa de- mande, r´esid´e au Canada pendant au moins trois ans en Valverde v. Canada (MCI) John A. O’Keefe J. 67

tout, la dur´ee de sa r´esidence etant´ calcul´ee de la mani`ere suivante: (i) un demi-jour pour chaque jour de r´esidence au Canada avant son admission a` titre de r´esident permanent, (ii) un jour pour chaque jour de r´esidence au Canada apr`es son admission a` titre de r´esident permanent; 49 I found Ms. Alexandra Hiles’s statements in her affidavit informative. She is the Registrar of Citizenship and Acting Director of Citizenship Program Delivery. In some instances, after an “immigration clearance — passed” entry is made in FOSS or GCMS, information comes to light to the effect that a Grant Application applicant is the subject of a pending process under the IRPA which may implicate their permanent resident status under the IRPA. In these cases, FOSS and/or GCMS records are amended accordingly, and the local CIC citizenship office requests confirmation from the pertinent CIC immigration officer or CBSA officer as to the outcome of the process and any consequential impli- cations for a Grant Application applicant’s permanent resident status under the IRPA. 50 In the present case, on August 15, 2013, the CIC officer referred the applicant to CBSA for cessation proceedings and put the application on hold. However, at that time, CIC did not reverse the applicant’s immigra- tion clearance. It should also be noted that after the “immigration clear- ance — passed” entry was made in the GCMS, no new information came to light with respect to the application. All of the information was known to CIC with respect to the return visits to Mexico prior to the date of the entry on April 10, 2013. 51 With respect to section 17 being the authority for the hold placed on August 15, 2013, no mention is made of section 17 being the basis for the hold, is made in the materials. In any event, there is a time limit of six months, i.e. the suspension cannot exceed six months. No mention is made of the length of the suspension. As well, I do not believe that sec- tion 17 would apply as there was no indication that the Minister was of the opinion that the applicant had provided insufficient information to ascertain whether she met the requirements of the Act. 52 On August 1, 2014, section 13.1 of the Citizenship Act came into force, providing explicit authority for the Minister to suspend processing the citizenship application for as long as is necessary to receive the re- sults of any inquiry that would implicate the applicant’s qualification for 68 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

citizenship. However, on August 15, 2013, section 13.1 of the Citizen- ship Act had not yet come into force. At that time and prior to this amendment, the Minister could only put an application on hold pursuant to the prohibitions listed under the Citizenship Act. Here, the applicant did not fall under any of these prohibitions. 53 Also, in completing the cessation referral, CIC referred to the fact that the applicant had travelled back to Mexico two times in 2008 and again in 2010. This information, however, has been available since the appli- cant renewed her permanent residency status in 2010. CIC did not pursue cessation proceedings then. 54 Further, I do not find the respondent’s reliance on the cited case law particularly helpful because the factual situations in those cases are dif- ferent from the present case. 55 In Jaber, this Court examined the effect of cessation proceedings in a permanent resident application. It found an application for cessation of refugee protection must follow its course and that any prior pending ap- plication for permanent residence cannot be decided until a decision is rendered on the issue of the refugee status. In contrast, the applicant in the present case has valid permanent residency status. 56 In Khan, the applicant left the country after the citizenship application was submitted. His permanent residency status expired. Further, he did not satisfy all the pre-conditions such as the residence questionnaire. In contrast, the applicant in the present case has none of these issues. 57 In Tapie, the applicant fraudulently obtained refugee status. He was subjected to inadmissibility proceedings and was found to be inadmissi- ble. Given this circumstance, this Court found the two year delay to reach the decision on his application for permanent residence was not unreasonable. In contrast, the applicant in the present case is not inad- missible and is not subject to an inadmissibility hearing. 58 In Seyoboka, the applicant made some significant additions to his file, rectifying two previous false statements. This Court found the Minister is justified in completing its security check given these additions showing military involvement. The Minister applied to annul the applicant’s refu- gee status. In contrast, the applicant in the present case made no addi- tions to her file to put her clearances in doubt. 59 I find the present case is similar to Stanizai. In Stanizai, the applicant met all of the statutory requirements for citizenship and his application was approved by a citizenship judge. The Minister did not appeal the Valverde v. Canada (MCI) John A. O’Keefe J. 69

citizenship judge’s decision within the relevant prescribed time period. Subsequent to the citizenship judge’s approval, without any new infor- mation that arose in the applicant’s application, he was referred for ces- sation proceedings. Accordingly, CIC refused to grant the applicant citi- zenship status. Madam Justice Anne Mactavish found for the applicant and issued an order of mandamus to grant the applicant citizenship sta- tus. Although the applicant in Stanizai was approved by a citizenship judge, I do not find this fact to be a relevant distinction for the purpose of my analysis. 60 In the present case, the applicant met all the statutory requirements for citizenship and her application would have been referred to the citi- zenship judge if not for the hold. Here, the respondent was fully aware of all the information that it now says gives rise to concerns regarding the ongoing validity of the applicant’s refugee status from at least 2010. Also, the applicant’s immigration clearance was shown as “passed” in the GCMS on August 15, 2013. It is not clear to me if the Minister had concerns or inquiries about the applicant meeting the statutory require- ment then, so why did it wait to reverse the applicant’s immigration clearance eight months later? 61 The parties also made submissions with respect to Mr. Justice James Russell’s decision in Ovalle v. Canada (Minister of Citizenship and Im- migration), 2015 FC 935 (F.C.). I am of the view that this decision does not assist the respondent. In that case, an order for mandamus was granted after the respondent suspended the processing of the applicant’s citizenship application pursuant to section 13.1 of the Act. 62 Had the CIC reversed the applicant’s immigration clearance on Au- gust 15, 2013 pending inquiries, subsection 11(1) of the Regulations would not have been satisfied and accordingly, the Registrar’s duty to forward the application to a citizenship judge pursuant to subsection 11(5) of the Regulations would not have been required. 63 But this was not what happened. In my view, what happened was that CIC put a hold on the applicant’s citizenship application without any statutory authority. 64 The respondent brings up a valid point that there would be a race between the processing of the citizenship application and the determina- tion of the cessation application. This, however, was not the applicant’s doing. 65 In Conille, this Court found a delay in the performance of a statutory obligation can be deemed unreasonable if the following is established: 70 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

(a) the delay in question has been longer than the nature of the pro- cess required, prima facie; (b) the applicant and his counsel are not responsible for the delay; and, (c) the authority responsible for the delay has not provided satisfac- tory justification. 66 About the first element, I find although the delay has not been longer than the nature of the entire citizenship application process, the hold was placed on the applicant’s citizenship application without statutory author- ization in August 2013. This has unreasonably delayed the application being referred to a citizenship judge for consideration. As for the second element, the applicant and her counsel are not responsible for the hold and the third element, the justification for the hold, although now author- ized by section 13.1 of the Citizenship Act, was not then authorized by statute. Therefore, I find the hold resulted in an unreasonable delay in the performance of CIC’s statutory obligation to refer the applicant’s file to the citizenship judge for consideration. 67 Having resolved the above issue, I find the test for a writ of manda- mus is met in the present case for the following reasons. 68 First, the Minister has a mandatory duty to continue processing the applicant’s application because the hold placed in August 2013 was not authorized by statute. 69 Second, the applicant has satisfied the conditions precedent giving rise to the duty under subsection 11(5) of the Regulations for the Regis- trar to forward the application to a citizenship judge. 70 Third, the applicant had requested CIC to continue processing her ap- plication on January 30, 2014 and again on March 25, 2014. 71 Fourth, I find no other adequate remedy available to the applicant and an order of mandamus to compel the Minister to continue processing her application is a practical remedy. 72 Fifth, I find no equitable bar to the relief sought. 73 Sixth, I find the “balance of convenience” sides with the applicant and an order in the nature of mandamus should issue. 74 Consequently, for the reasons above, I would allow this application and issue an order of mandamus to compel the Minister to continue processing the applicant’s citizenship application as set out in the order previously issued in this matter. Valverde v. Canada (MCI) John A. O’Keefe J. 71

75 The respondent made a preliminary motion for an order granting the respondent leave to file the affidavits of Sunil Sahota and Chen Tan. The applicant opposes the granting of the order. In my view, leave should be and is granted to file these affidavits. The affidavits contain no contro- versial material. 76 There shall be no order for costs. Application granted. 72 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

[Indexed as: Dhaliwal v. Canada (Minister of Citizenship and Immigration)] Darshan Singh Dhaliwal, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-2965-13 2015 FC 1010, 2015 CF 1010 Alan S. Diner J. Heard: June 3, 2015 Judgment: August 26, 2015 Immigration and citizenship –––– Constitutional issues — Legislative pow- ers –––– Foreign national was citizen of India who filed application for perma- nent residence under Federal Investor Class — Three years later, foreign na- tional’s file was still yet to be processed — Consequently foreign national commenced underlying application for judicial review seeking order of manda- mus to process his permanent residence application — Before judicial review was heard on merits, s. 303 of Economic Action Plan 2014 Act amended Immi- gration and Refugee Protection Act to include s. 87.5, which terminated foreign national’s application — Foreign national brought application for judicial re- view, contending that s. 87.5 was unconstitutional in that it offended constitu- tional principle of rule of law and violated s. 7 of Canadian Charter of Rights and Freedoms — Application dismissed — Ability of Parliament to craft solu- tions to shifting social, financial or political problems raised constitutional prin- ciple that rule of law had to be balanced against parliamentary sovereignty — Parliament had freedom, subject to constitutional constraints, to legislate as it saw fit — No Parliament, through ordinary legislation, could prohibit future iter- ations from modifying law — Disruption or unfairness when retrospective law was passed did not render that new law was in violation of rule of law — Unfor- tunate accompaniment of disruption of unfairness when retrospective law was passed did not render new law in violation of rule of law — Accordingly, for- eign national’s arguments regarding legitimacy of retrospective legislation at is- sue in this case failed — There was no binding jurisprudence from higher court on constitutionality of s. 87.5 of Act. Immigration and citizenship –––– Constitutional issues — Charter of Rights and Freedoms — Visitors and immigrants — Admission –––– Foreign na- tional was citizen of India who filed application for permanent residence under Federal Investor Class — Three years later, foreign national’s file was still yet to be processed — Consequently foreign national commenced underlying applica- Dhaliwal v. Canada (MCI) 73 tion for judicial review seeking order of mandamus to process his permanent residence application — Before judicial review was heard on merits, s. 303 of Economic Action Plan 2014 Act amended Immigration and Refugee Protection Act to include s. 87.5, which terminated foreign national’s application — For- eign national brought application for judicial review, contending that s. 87.5 was unconstitutional in that it offended constitutional principle of rule of law and violated s. 7 of Canadian Charter of Rights and Freedoms — Application dis- missed — While profoundly disappointing, evidence did not establish high threshold of psychological harm necessary to establish deprivation of right to security of person under Charter — There was insufficient evidence to indicate that claimants suffered physiological effects beyond ordinary stress or anxiety due to termination of their application. Cases considered by Alan S. Diner J.: Al Mansuri v. Canada (Minister of Public Safety & Emergency Preparedness) (2007), 2007 FC 22, 2007 CarswellNat 84, [2007] F.C.J. No. 16, 60 Admin. L.R. (4th) 228, 314 F.T.R. 1 (Eng.), 2007 CF 22, 2007 CarswellNat 5793 (F.C.) — referred to Amnesty International Canada v. Canada (Minister of National Defence) (2008), 2008 FC 336, 2008 CarswellNat 597, (sub nom. Amnesty International Canada v. Canadian Forces (Defence Staff, Chief)) 292 D.L.R. (4th) 127, (sub nom. Amnesty International Canada v. Canadian Armed Forces (Chief, Defence Staff)) 320 F.T.R. 257 (Eng.), (sub nom. Amnesty International Canada v. Canada (Canadian Forces)) 168 C.R.R. (2d) 274, 81 Admin. L.R. (4th) 190, (sub nom. Amnesty International Canada v. Canada (Chief of the Defence Staff)) [2008] 4 F.C.R. 546, 2008 CarswellNat 5727, [2008] F.C.J. No. 356 (F.C.) — referred to Amnesty International Canada v. Canada (Minister of National Defence) (2008), 2008 FCA 401, 2008 CarswellNat 4625, 2008 CAF 401, 2008 Car- swellNat 5272, 182 C.R.R. (2d) 203, (sub nom. Amnesty International Canada v. Canadian Forces (Defence Staff, Chief)) 305 D.L.R. (4th) 741, (sub nom. Amnesty International Canada v. Canada (Chief of Defence Staff)) [2009] 4 F.C.R. 149, [2008] F.C.J. No. 1700, 383 N.R. 268 (F.C.A.) — referred to Arora v. Canada (Minister of Citizenship & Immigration) (2001), 2001 Car- swellNat 36, [2001] F.C.J. No. 24, 2001 CarswellNat 5316, [2001] A.C.F. No. 24 (Fed. T.D.) — referred to Babcock v. Canada (Attorney General) (2002), 2002 SCC 57, 2002 CarswellBC 1576, 2002 CarswellBC 1577, 3 B.C.L.R. (4th) 1, [2002] 8 W.W.R. 585, 214 D.L.R. (4th) 193, 3 C.R. (6th) 1, [2002] S.C.J. No. 58, 289 N.R. 341, 168 B.C.A.C. 50, 275 W.A.C. 50, [2002] 3 S.C.R. 3, REJB 2002-32276, [2002] A.C.S. No. 58, 2002 CSC 57 (S.C.C.) — referred to British Columbia v. Imperial Tobacco Canada Ltd. (2005), 2005 SCC 49, 2005 CarswellBC 2207, 2005 CarswellBC 2208, EYB 2005-95296, [2004] 74 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

S.C.C.A. No. 302, 45 B.C.L.R. (4th) 1, 257 D.L.R. (4th) 193, [2006] 1 W.W.R. 201, 339 N.R. 129, [2005] 2 S.C.R. 473, 134 C.R.R. (2d) 46, 218 B.C.A.C. 1, 359 W.A.C. 1, 27 C.P.C. (6th) 13, [2005] S.C.J. No. 50, 134 C.R.R. (2d) 47 (S.C.C.) — considered Chaoulli c. Qu´ebec (Procureur g´en´eral) (2005), 2005 SCC 35, 2005 Carswell- Que 3276, 2005 CarswellQue 3277, [2005] S.C.J. No. 33, 254 D.L.R. (4th) 577, EYB 2005-91328, (sub nom. Chaoulli v. Quebec (Attorney General)) 335 N.R. 25, 130 C.R.R. (2d) 99, (sub nom. Chaoulli v. Canada (Attorney General)) [2005] 1 S.C.R. 791, (sub nom. Chaoulli v. Canada (Attorney General)) 53 C.H.R.R. D/1, 2005 CSC 35 (S.C.C.) — considered Erasmo v. Canada (Attorney General) (2015), 2015 FCA 129, 2015 Car- swellNat 1530, [2015] F.C.J. No. 638, 473 N.R. 245, 2015 CAF 129, 2015 CarswellNat 4843 (F.C.A.) — considered Hryniak v. Mauldin (2014), 2014 CarswellOnt 640, 2014 CarswellOnt 641, 37 R.P.R. (5th) 1, [2014] S.C.J. No. 7, 46 C.P.C. (7th) 217, 27 C.L.R. (4th) 1, (sub nom. Hryniak v. Mauldin) 366 D.L.R. (4th) 641, 2014 CSC 7, 453 N.R. 51, 12 C.C.E.L. (4th) 1, 314 O.A.C. 1, 95 E.T.R. (3d) 1, 21 B.L.R. (5th) 248, [2014] 1 S.C.R. 87, [2014] A.C.S. No. 7, 2014 SCC 7 (S.C.C.) — followed Hui v. Canada (Minister of Citizenship and Immigration) (2014), 2014 FC 666, 2014 CarswellNat 2546 (F.C.) — referred to Jia v. Canada (Minister of Citizenship and Immigration) (2014), 2014 FC 596, 2014 CarswellNat 2228, 2014 CF 596, 2014 CarswellNat 2451, 26 Imm. L.R. (4th) 1, 82 Admin. L.R. (5th) 1, 457 F.T.R. 73, [2015] 3 F.C.R. 143, [2014] F.C.J. No. 647, [2014] A.C.F. No. 647 (F.C.) — referred to Jia v. Canada (Minister of Citizenship and Immigration) (2015), 2015 FCA 146, 2015 CarswellNat 2294 (F.C.A.) — referred to Kozel v. Canada (Minister of Citizenship and Immigration) (2015), 2015 FC 593, 2015 CarswellNat 1452, 2015 CF 593, 2015 CarswellNat 3067 (F.C.) — referred to Quebec (Attorney General) v. Canada (Attorney General) (2015), 2015 SCC 14, 2015 CSC 14, 2015 CarswellQue 1930, 2015 CarswellQue 1931, [2015] S.C.J. No. 14, [2015] A.C.S. No. 14, 469 N.R. 97, 320 C.C.C. (3d) 548, 383 D.L.R. (4th) 614, [2015] 1 S.C.R. 693, 332 C.R.R. (2d) 74 (S.C.C.) — re- ferred to R. v. Ferguson (2008), 2008 SCC 6, 2008 CarswellAlta 228, 2008 CarswellAlta 229, [2008] S.C.J. No. 6, 228 C.C.C. (3d) 385, 54 C.R. (6th) 197, 371 N.R. 231, 87 Alta. L.R. (4th) 203, [2008] 5 W.W.R. 387, 290 D.L.R. (4th) 17, 425 A.R. 79, 418 W.A.C. 79, [2008] 1 S.C.R. 96, 168 C.R.R. (2d) 34 (S.C.C.) — considered Reference re Language Rights Under s. 23 of Manitoba Act, 1870 & s. 133 of Constitution Act, 1867 (1985), [1985] 1 S.C.R. 721, [1985] 4 W.W.R. 385, 19 D.L.R. (4th) 1, 59 N.R. 321, 35 Man. R. (2d) 83, 1985 CarswellMan 183, 1985 CarswellMan 450, [1985] S.C.J. No. 36 (S.C.C.) — referred to Dhaliwal v. Canada (MCI) 75

Shukla v. Canada (Minister of Citizenship and Immigration) (2012), 2012 FC 1461, 2012 CarswellNat 4845, 2012 CF 1461, 2012 CarswellNat 5345, 13 Imm. L.R. (4th) 1, 423 F.T.R. 86, 423 F.T.R. 85 (Eng.), [2012] F.C.J. No. 1563, [2012] A.C.F. No. 1563 (F.C.) — considered Sin v. R. (2015), 2015 FC 276, 2015 CarswellNat 517, 2015 CF 276, 2015 Car- swellNat 2221 (F.C.) — considered Tabingo v. Canada (Minister of Citizenship and Immigration) (2013), 2013 FC 377, 2013 CF 377, 2013 CarswellNat 1030, 2013 CarswellNat 1031, 362 D.L.R. (4th) 166, 281 C.R.R. (2d) 257, 18 Imm. L.R. (4th) 1, 431 F.T.R. 118 (Eng.), [2014] 4 F.C.R. 150 (F.C.) — followed Tabingo v. Canada (Minister of Citizenship and Immigration) (2014), 2014 FCA 191, 2014 CarswellNat 3180, 377 D.L.R. (4th) 151, 462 N.R. 124, 27 Imm. L.R. (4th) 175, 2014 CAF 191, 2014 CarswellNat 6290, 318 C.R.R. (2d) 267, 86 Admin. L.R. (5th) 194, (sub nom. Tabingo v. Canada (Citizenship and Immigration)) [2015] 3 F.C.R. 346, [2014] F.C.J. No. 863 (F.C.A.) — considered Zhang v. Canada (Minister of Citizenship and Immigration) (2013), 2013 FCA 168, 2013 CarswellNat 2197, [2013] F.C.J. No. 764, 446 N.R. 382, 2013 CAF 168, 2013 CarswellNat 6987, 28 Imm. L.R. (4th) 231, [2014] 4 F.C.R. 290 (F.C.A.) — followed Statutes considered: Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 Generally — referred to s. 7 — considered s. 15 — considered Immigration and Refugee Protection Act, S.C. 2001, c. 27 Generally — referred to s. 3(1)(f) — considered s. 11(1) — considered s. 87 — considered s. 87.4(1) [en. 2012, c. 19, s. 707] — considered s. 87.5 [en. 2014, c. 20, s. 303] — considered s. 87.5(1) [en. 2014, c. 20, s. 303] — considered

APPLICATION by foreign national for judicial review of legislative amend- ment terminating all visa applications under investor or entrepreneur classes.

Wennie Lee, for Applicant Negar Hashemi, for Respondent 76 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

Alan S. Diner J.: I. Overview 1 On June 19, 2014, the Immigration and Refugee Protection Act (SC 2001, c 27) [the Act, IRPA] was amended to terminate all visa applica- tions by foreign nationals under the investor or entrepreneur classes which had not met certain requirements by February 11, 2014. 2 In this judicial review, Mr. Dhaliwal is the Representative Applicant for a number of individuals affected by the legislative amendment and seeks to have the provision declared unconstitutional for offending the rule of law and violating section 7 of the Canadian Charter of Rights and Freedoms [Charter]. Furthermore, he seeks an order of mandamus to compel the Minister of Citizenship and Immigration Canada [Minister] to process his application for permanent residence. 3 The issues raised in the matter are the same as those in a companion case before me, Singh v Minister of Citizenship and Immigration (IMM- 3716-13). By agreement of the parties, the matters were argued together given the similarities in the legal issues to be decided by the Court. 4 For the reasons below, I would dismiss the judicial review.

II. Facts 5 On May 21, 2010, the Applicant, a citizen of India, filed an applica- tion for permanent residence under the Federal Investor Class. He re- ceived a letter from the Canadian High Commission in New Delhi a few days later, acknowledging its receipt and advising him that he would be informed of the status of his application in twenty months (Applicant’s Record [AR], p. 16). 6 However, a little less than 3 years later, the Applicant’s file was still yet to be processed. Consequently, on April 22, 2013, the Applicant filed the underlying application for judicial review seeking an order of manda- mus to process his permanent residence application. Before the judicial review was heard on its merits, on June 19, 2014, section 303 of the Economic Action Plan 2014 Act, No 1 (SC 2014, c 20) amended the Act to include section 87.5: 87.5 (1) An application by a foreign national for a permanent resi- dent visa as a member of the prescribed class of investors or of entrepreneurs is terminated if, before February 11, 2014, it has not been established by an officer, in accordance with the Dhaliwal v. Canada (MCI) Alan S. Diner J. 77

regulations, whether the applicant meets the selection criteria and other requirements applicable to the class in question. (2) Subsection (1) does not apply to (a) an application in respect of which a superior court has made a final determination unless the determination is made on or after February 11, 2014; or (b) an application made by an investor or entrepreneur who is selected as such by a province whose govern- ment has entered into an agreement referred to in sub- section 9(1). (3) The fact that an application is terminated under subsection (1) does not constitute a decision not to issue a permanent resi- dent visa. (4) Any fees paid to the Minister in respect of the application re- ferred to in subsection (1) — including for the acquisition of permanent resident status — must be returned, without inter- est, to the person who paid them. The amounts payable may be paid out of the Consolidated Revenue Fund. (5) If an application for a permanent resident visa as a member of the prescribed class of investors is terminated under subsec- tion (1), an amount equal to the investment made by the ap- plicant in respect of their application must be returned, with- out interest, to the applicant. The amount may be paid out of the Consolidated Revenue Fund. (6) If the provincial allocation of an investment made in respect of an application for a permanent resident visa as a member of the prescribed class of investors that is terminated under subsection (1) has been transferred to an approved fund, as defined in subsection 88(1) of the Immigration and Refugee Protection Regulations, the province whose government con- trols the approved fund must return an amount equal to that provincial allocation to the Minister without delay. The return of the amount extinguishes the debt obligation in respect of that provincial allocation. (7) No right of recourse or indemnity lies against Her Majesty in right of Canada in connection with an application that is ter- minated under subsection (1), including in respect of any con- tract or other arrangement relating to any aspect of the application. 7 Pursuant to section 87.5(1), the Applicant’s permanent residence ap- plication was terminated by operation of law. 78 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

8 Before diving into the substantive analysis of this case, it should be noted that recently, the Federal Court of Appeal [FCA] decisively ruled on a matter involving a similar set of applicants. Jia v. Canada (Minister of Citizenship and Immigration), 2015 FCA 146 (F.C.A.) [Jia] and its trial decision, Jia v. Canada (Minister of Citizenship and Immigration), 2014 FC 596 (F.C.) [Jia FC], was, like this matter, brought to the Federal Courts by way of a mandamus application. Also similar to this case were the underlying circumstances, including the type of permanent residence applications at issue (business category), place of filing (visa offices in Asia), projections of processing times, and allegations of unconstitution- ality by the applicants. Those applicants were unsuccessful at both levels of the Federal Courts. 9 I now turn back to the analysis of this case, and will return to a dis- cussion of Jia at the end of my decision.

III. Submissions 10 Since the Applicant’s Investor Class application has already been ter- minated pursuant to section 87.5 of the Act, it is apparent that the remedy he is seeking, an order of mandamus directing the Minister to process his application, hinges on the constitutionality of this provision. 11 The Applicant argues that section 87.5 is unconstitutional in two re- spects: (i) the provision offends the constitutional principle of the rule of law, and (ii) the provision violates the Applicant’s rights under section 7 of the Charter. 12 The Respondent argues that as a foreign national residing outside of Canada, the Applicant lacks standing to bring Charter or constitutional claims. In any event, there is no breach of section 7, because the Appli- cant’s life, liberty or security of the person were not engaged nor did the constraints imposed on the Investor Class permanent residence applica- tions violate the principles of fundamental justice. As the Supreme Court of Canada held in British Columbia v. Imperial Tobacco Canada Ltd., 2005 SCC 49 (S.C.C.) at paras 69-72 [Imperial Tobacco], retrospective statutes do not violate the rule of law, and there is no vested right to an application of the law as it stood prior to its retrospective amendment.

IV. Analysis A. Preliminary Matters 13 Procedurally, the Respondent argues that the Applicant’s arguments regarding the constitutionality of section 87.5 are improperly before the Dhaliwal v. Canada (MCI) Alan S. Diner J. 79

Court and should not be entertained because they were raised for the first time in the Applicant’s Further Memorandum of Fact and Law. As noted by the Federal Court of Appeal in Erasmo v. Canada (Attorney General), 2015 FCA 129 (F.C.A.) at para 33, the general rule is that, absent cases of urgency, constitutional questions cannot be raised for the first time in the reviewing court if the administrative decision maker under review had the power and the practical capability to decide them. 14 In this case, the contested provision come into effect after the applica- tion for judicial review for delay in processing had already been filed. Thus, the judicial review before me is the first practical opportunity for the Applicant to assert these arguments. For the Applicant to have to cir- cle back and seek leave of the Minister’s decision to terminate the Inves- tor Class application, based on the same facts as the judicial review cur- rently before this Court, would be to waste scarce judicial resources. As stressed by Justice Karakatsanis in Hryniak v. Mauldin, 2014 SCC 7 (S.C.C.) at para 25 in a decision regarding the shift in culture required to facilitate Ontario’s summary judgement rules, “[p]rompt judicial resolu- tion of legal disputes allows individuals to get on with their lives” (see also Jia FC at para 11). I also see little prejudice to the Respondent in this case, given the opportunity to address the Applicant’s constitutional arguments through written submissions in the Further Memorandum of Fact and Law and at the hearing.

B. Rule of Law and Constitutionality of Section 87.5 15 The rule of law is a fundamental constitutional principle which pro- vides, at the very least, that (i) the law is supreme over officials of the government as well as private individuals, (ii) requires the creation and maintenance of an actual order of positive laws which preserves and em- bodies the more general principle of normative order and (iii) the actions of state officials be legally founded (Reference re Language Rights Under s. 23 of Manitoba Act, 1870 & s. 133 of Constitution Act, 1867, [1985] 1 S.C.R. 721 (S.C.C.) at paras 59-61; Imperial Tobacco at para 59). 16 The Applicant relies on R. v. Ferguson, 2008 SCC 6 (S.C.C.) at para 68, wherein the Chief Justice of the Supreme Court of Canada made it clear that for laws to conform to the principle of the rule of law, they must be accessible, intelligible, clear and predictable: [68] The principles of constitutionalism and the rule of law lie at the root of democratic governance: Reference re Secession of Quebec, 80 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

[1998] 2 S.C.R. 217. It is fundamental to the rule of law that “the law must be accessible and so far as possible intelligible, clear and predictable”: 17 At its core, the Applicant’s argument is this: the Minister owed a duty to the Applicant to process his application upon its submission, and sec- tion 87.5 is unconstitutional because it retrospectively eliminated this duty, violating the virtue of predictability the rule of law must encompass. 18 The law, however, must be capable of adapting to changing circum- stances. The ability of Parliament to craft solutions to shifting social, fi- nancial or political problems implicates another constitutional principle which is that the rule of law must be balanced against parliamentary sov- ereignty (Babcock v. Canada (Attorney General), 2002 SCC 57 (S.C.C.) at para 55 [Babcock]). Parliament is provided the freedom, subject to constitutional constraints, to legislate as it sees fit (Babcock at para 57). Indeed, no Parliament, through ordinary legislation, may prohibit future iterations from modifying a law (Quebec (Attorney General) v. Canada (Attorney General), 2015 SCC 14 (S.C.C.) at paras 25, 44). 19 Justice Major in Imperial Tobacco addressed the constitutionality of retrospective statutes, stating that aside from the criminal context, “there is no requirement of legislative prospectivity embodied in the rule of law or in any provision of our Constitution” (at para 69) and went on to ac- knowledge the frustration that certain individuals may feel when retro- spective statutes upset preconceived expectations: [71] The absence of a general requirement of legislative prospectivity exists despite the fact that retrospective and retroactive legislation can overturn settled expectations and is sometimes perceived as un- just: see E. Edinger, “Retrospectivity in Law” (1995), 29 U.B.C. L. Rev. 5, at p. 13. Those who perceive it as such can perhaps take com- fort in the rules of statutory interpretation that require the legislature to indicate clearly any desired retroactive or retrospective effects. Such rules ensure that the legislature has turned its mind to such ef- fects and “determined that the benefits of retroactivity [or retrospec- tivity] outweigh the potential for disruption or unfairness”: Landgraf v. USI Film Products, 511 U.S. 244 (1994), at p. 268. 20 In short, the unfortunate accompaniment of disruption or unfairness when a retrospective law is passed does not render that new law in viola- tion of the rule of law. Dhaliwal v. Canada (MCI) Alan S. Diner J. 81

21 The Applicant attempts to distinguish this situation by arguing that inImperial Tobacco, no prior duties had been supplanted or nullified by the retrospective legislation at issue. 22 The hurdle the Applicant cannot overcome, however, is that a higher Court — the FCA — has held on two separate occasions within the past two years that the elimination of a duty to process a visa application is constitutional in nearly identical circumstances. 23 In Tabingo v. Canada (Minister of Citizenship and Immigration), 2014 FCA 191 (F.C.A.) [Tabingo] the Federal Court of Appeal heard the appeal of a judicial review decided by Justice Rennie (as he then was) in Tabingo v. Canada (Minister of Citizenship and Immigration), 2013 FC 377 (F.C.) [Tabingo FC]. The applicants in that case challenged a similar provision, section 87.4(1) of the Act, which had terminated permanent resident visa applications of foreign nationals who applied before Febru- ary 27, 2008 as members of the Federal Skilled Worker class. The FCA rejected the applicants’ argument that the provision was so arbitrary that it offended the rule of law, finding that “this Court cannot, in the face of Imperial Tobacco, accept the argument of the appellants that subsec- tion 87.4(1) offends the rule of law because it is retrospective” (Tabingo at para 74). 24 Second, the FCA came to a similar result in Jia, not on constitutional grounds, but rather on the grounds that the requested mandamus order to compel the processing of outstanding investor and entrepreneur applica- tions was rendered moot due to the enactment of section 87.5, the same provision at issue in today’s request for a similar mandamus order. 25 Consequently, in light of the comments of the Supreme Court of Can- ada inImperial Tobacco and the Federal Court of Appeal in Tabingo on retrospectivity, the Applicant’s arguments regarding the legitimacy of the retrospective legislation at issue in this case must also fail.

C. Section 7 of the Charter 26 The Applicant’s second argument posits that section 87.5 is unconsti- tutional because it violates his rights under section 7 of the Charter. For support, he cites Chaoulli c. Qu´ebec (Procureur g´en´eral), 2005 SCC 35 (S.C.C.) at para 116 [Chaoulli], wherein Chief Justice McLachlin and Justice Major found in concurring reasons that the psychological side ef- fects of waiting for critical health care may engage a section 7 protection for security of the person. The Applicant argues that psychological dam- 82 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

age can be wrought in waiting for a visa application to be processed, only to see it ultimately terminated without adjudication. 27 A similar argument was rejected in Tabingo. The Federal Court of Appeal concluded that while profoundly disappointing, the evidence in that case did not establish the high threshold of psychological harm nec- essary to establish a deprivation of the right to security of the person (Tabingo at para 99). Looking at the record before me in this case, I would reach the same conclusion. 28 In this case, there is insufficient evidence before me to indicate that the Applicants suffered physiological effects beyond ordinary stress or anxiety due to the termination of their application (Chaoulli at para 116). Even so, the reasons why section 7 would not be engaged were well ar- ticulated by Justice Rennie in paragraph 99 of Tabingo FC: [99] I accept that the applicants have experienced stress and hard- ship; I also accept that the circumstances of some of the applicants are compelling. However, immigration is not of such an intimate, profound and fundamental nature as to be comparable with a wo- man’s right of reproductive choice, or the freedom of parents to care for their children. The ability to immigrate, particularly as a member of an economic class, is not among the fundamental choices relating to personal autonomy which would engage section 7. While it may have life-altering consequences, the possibility of immigrating to Canada as a successful FSW applicant does not engage life or liberty interests. (Aff’d by the FCA in Tabingo at para 96) 29 In Jia FC, Justice Gleason (as she then was) adopted the section 7 analysis of Justice Rennie, and relied on many of the same cases cited by him, in noting “the significant jurisprudence” of the Federal Courts holds that foreign citizens outside of Canada have no rights under the Charter in respect of activities that occur outside of Canada (Jia FC at paras 108 and 114; see also for instance Al Mansuri v. Canada (Minister of Public Safety & Emergency Preparedness), 2007 FC 22 (F.C.); Amnesty International Canada v. Canada (Minister of National Defence), 2008 FC 336 (F.C.); Amnesty International Canada v. Canada (Minister of National Defence) (2008), [2009] 4 F.C.R. 149 (F.C.A.); Arora v. Canada (Minister of Citizenship & Immigration) [2001 CarswellNat 36 (Fed. T.D.)], IMM-5901-99, Date: 2001-01-10). 30 While there is no binding jurisprudence from a higher court on the constitutionality of section 87.5 (Jia at para 7), many of the same argu- ments in this judicial review were addressed by Justice Gleason in Jia FC. For instance, she concluded that the rule of law was not blemished Dhaliwal v. Canada (MCI) Alan S. Diner J. 83

by the passage of the provision, though the argument in that case was framed through the lens of section 15 of the Charter (Jia FC at paras 128-130). Further, as Justice Gleason found for the same reasons that Justice Rennie set out in Tabingo FC, section 7 was not engaged as a result of the passage of section 87.5 (Jia FC at para 114). I agree with and adopt the reasoning behind these conclusions on the rule of law and constitutionality of section 87.5. 31 After the rulings of Justices Rennie and Gleason in Tabingo FC and Jia FC, three other judges of this Court have arrived at similar conclusions in related facts. 32 First, Justice Boswell declined to return a case for redetermination, as the visa application would be terminated by section 87.5 in any event (Kozel v. Canada (Minister of Citizenship and Immigration), 2015 FC 593 (F.C.) at para 21). 33 Second, in Sin v. R., 2015 FC 276 (F.C.) at para 4 [Sin], Justice O’Reilly struck a claim for damages for loss of opportunities brought by an applicant who had a pending investor application for failing to dis- close a cause of action. While the applicant argued that bilateral treaties protect the rights of investors, Justice O’Reilly concluded that “provi- sions enacted by Parliament that terminate investors’ permanent resi- dence applications and limit the extent to which they can seek compensa- tion for the termination of their applications simply do not conflict with those agreements” (Sin at para 12). 34 Third, Justice Mosley also declined to order mandamus for an Inves- tor Class application affected by section 87.5, substantially for the rea- sons Justice Gleason gave in Jia FC (Hui v. Canada (Minister of Citizenship and Immigration), 2014 FC 666 (F.C.) at para 5). 35 For all of the reasons above, I reject the constitutional law arguments advanced by the Applicant in this judicial review. 36 Finally, before the rulings in this consistent line of Federal Court ju- risprudence, Justice Russell also arrived at the same outcome in Shukla v. Canada (Minister of Citizenship and Immigration), 2012 FC 1461 (F.C.). Shukla was an early ruling on section 87 of the Act, where a Federal Skilled Worker applicant, who had filed at the New Delhi Visa office, declined a refund of fees from New Delhi when the law changed, and resubmitted his application with new forms. Justice Russell dismissed the mandamus and the nunc pro tunc request of the Applicant, stating: In addition, the back-dating that the Applicant requests would be an assumption of jurisdiction in a situation where Parliament has made 84 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

its intentions clear, so that the Court would be attempting to thwart the clear and express intent of Parliament. I know of no principal or authority that would allow me to do this and I think the law on point is clear. 37 Similarly, when the FCA upheld Justice Gleason’s decision in Jia FC nearly three years after Shukla, Justice Ryer conclusively ruled for the Court that because section 87.5 terminated all investor applications, “the issue of whether the Minister could be forced [via mandamus] to process these applications was no longer a live controversy” (Jia at para 6). That ruling binds me, and I therefore also reject the mandamus com- ponent of the Applicant’s requested order.

V. Certification 38 The Applicant proposed three questions for certification: i. Does the court have the jurisdiction to grant a Mandamus Order, even when the class of immigrant has been terminated, in cases when the Mandamus Order was sought prior to the coming into force of the legislation terminating the said class? This question has been answered conclusively in Jia and other cases. ii. If the Respondent acted in bad faith before the coming into force of section 87.5 of IRPA and ignored its duty to process in accor- dance with section 3(1)(f) of IRPA, can the court order that such files which were submitted in accordance with section 11(1) of IRPA, and for which it would have been reasonably expected that a decision should have been made, be processed and decided in accordance with the law in existence prior to coming into force of the said section? I agree with the Respondent that there was no evidence of bad faith in these matters (including the unchallenged Respondent Affidavit of Larry Penn at para 6). There is no evidence that files were not being processed according to the law, even if not at the pace the Applicant would have liked, or one that provided a decision before the new law came into effect. iii. In light of the bad faith in the implementation of section 87.5 of the IRPA and willfully ignoring of the duty imposed on the Re- spondent by Parliament, is the legislation ultra vires, as allowing its operation under the present circumstances is a clear and funda- mental breach of the rule of law, and the core values expressed in the Constitution and fundamental to our democracy? Dhaliwal v. Canada (MCI) Alan S. Diner J. 85

Given that there is no evidence of bad faith, and the Courts have rejected the notion that the Respondent had a duty to process the applications prior to the entry into force of section 87.5, this question also fails to meet the certification test. The Court of Appeal, first in Tabingo and then in Jia, decided these issues. While I note that Justice Ryer found no need to address constitutional issues in Jia, due to the FCAs findings on the mandamus issue (reviewed above), the FCA found the new legislative provisions to be constitutional in Tabingo, as did my colleagues, Justices Rennie and Gleason, in their comprehensive decisions in Tabingo FC and Jia FC, respectively. 39 I am satisfied that these questions have been addressed by both levels of our Federal Courts, per the clear and consistent line of jurisprudence reviewed above. Certification, accordingly, is not warranted in this mat- ter, per the criteria set out in Zhang v. Canada (Minister of Citizenship and Immigration), 2013 FCA 168 (F.C.A.) at para 9.

VI. Conclusion 40 Having carefully reviewed the facts of this case, I see no compelling reasons to deviate from the clear and consistent body of jurisprudence. While I recognize it is a bitter pill to swallow for the applicants who wanted to see their files processed through to conclusion, this application for judicial review will accordingly be dismissed.

Judgment THIS COURT’S JUDGMENT is that 1. This application for judicial review is dismissed. 2. There is no award as to costs. 3. No questions will be certified. Application dismissed. 86 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

[Indexed as: Ismailov v. Canada (Minister of Citizenship and Immigration)] Dilshod Ismailov, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-6839-14 2015 FC 967, 2015 CF 967 Cecily Y. Strickland J. Heard: June 17, 2015 Judgment: August 13, 2015* Immigration and citizenship –––– Refugee protection — Appeal or redeter- mination of claim — Evidence –––– Applicant was citizen of Uzbekistan, who was high level employee of company that came under investigation — Appli- cant was allegedly threatened by prosecutor with lengthy prison term if he would not testify against boss — Applicant came to Canada and claimed refugee status — Refugee Protection Division (RPD) of Immigration and Refugee Board rejected claim on basis that of negative credibility finding — Applicant’s appeal to Refugee Appeal Division (RAD) of Board was dismissed, with applicant’s new evidence of 11 news articles and European court decision found inadmissi- ble — Applicant applied for judicial review — Application granted — RAD re- lied on strict statutory interpretation of s. 110(4) of Immigration and Refugee Protection Act in finding that articles published before date on which RPD re- jected his claim were not admissible as they were reasonably available to him prior to rejection of claim — Many of articles did not respond to specific credi- bility concerns that RPD raised and were not relevant to outcome — At least two articles directly contradicted RPD’s finding, which led to negative credibil- ity inference, that applicant would not have been able to leave country if he was target in high profile investigation — Applicant could not reasonably have antic- ipated such suspicion of his departure, so it was unreasonable for RAD to con- clude he should have reasonably been expected to submit articles to RPD — RAD reasonably refused to admit new articles that post-dated claim, as they did not meet test for relevance and did little to support claim — RAD was unreason- able in dismissing out of hand European decision on possibility of persecution after deportation back to Uzbekistan, as it was submitted for its factual findings

* A corrigendum issued by the court on November 27, 2015 has been incorpo- rated herein. Ismailov v. Canada (MCI) 87

so RAD should have determined whether it satisfied test for new evidence — As RAD erred in refusing to admit some of new evidence, its credibility findings were unreasonable, as they were made without regard to relevant corroborative evidence. Cases considered by Cecily Y. Strickland J.: Acosta v. Canada (Minister of Citizenship & Immigration) (2009), 2009 FC 213, 2009 CarswellNat 506, [2009] F.C.J. No. 270, 2009 CF 213, 2009 Car- swellNat 6740 (F.C.) — referred to Denbel v. Canada (Minister of Citizenship and Immigration) (2015), 2015 FC 629, 2015 CarswellNat 1567, 2015 CF 629, 2015 CarswellNat 3300 (F.C.) — considered Farah v. Canada (Minister of Citizenship and Immigration) (2012), 2012 FC 1149, 2012 CarswellNat 3951, 2012 CF 1149, 2012 CarswellNat 4617 (F.C.) — referred to Huruglica v. Canada (Minister of Citizenship and Immigration) (2014), 2014 FC 799, 2014 CF 799, 2014 CarswellNat 3148, 2014 CarswellNat 3149, [2014] F.C.J. No. 845, 30 Imm. L.R. (4th) 115, [2014] 4 F.C.R. 811 (F.C.) — considered Ince v. Canada (Minister of Citizenship and Immigration) (2014), 2014 FC 249, 2014 CarswellNat 626, 2014 CF 249, 2014 CarswellNat 946 (F.C.) — re- ferred to Iyamuremye c. Canada (Ministre de la Citoyennet´e et de l’Immigration) (2014), 2014 CF 494, 2014 CarswellNat 1673, 2014 FC 494, 2014 CarswellNat 1948, [2014] F.C.J. No. 523, (sub nom. Iyamuremye v. Canada (Minister of Citizenship and Immigration)) 455 F.T.R. 201 (F.C.) — considered New Brunswick (Board of Management) v. Dunsmuir (2008), 2008 SCC 9, 2008 CarswellNB 124, 2008 CarswellNB 125, D.T.E. 2008T-223, [2008] S.C.J. No. 9, (sub nom. Dunsmuir v. New Brunswick) 2008 C.L.L.C. 220-020, 64 C.C.E.L. (3d) 1, 69 Imm. L.R. (3d) 1, 69 Admin. L.R. (4th) 1, 372 N.R. 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] A.C.S. No. 9, 329 N.B.R. (2d) 1, (sub nom. Dunsmuir v. New Brunswick) [2008] 1 S.C.R. 190, 844 A.P.R. 1, (sub nom. Dunsmuir v. New Brunswick) 95 L.C.R. 65, 2008 CSC 9 (S.C.C.) — followed Pathmanathan v. Canada (Minister of Citizenship & Immigration) (2012), 2012 FC 519, 2012 CarswellNat 1966, 2012 CF 519, 2012 CarswellNat 1347, 10 Imm. L.R. (4th) 253 (F.C.) — considered Proph`ete v. Canada (Minister of Citizenship & Immigration) (2009), 2009 FCA 31, 2009 CarswellNat 282, 2009 CAF 31, 2009 CarswellNat 1393, 78 Imm. L.R. (3d) 163, 387 N.R. 149, [2009] F.C.J. No. 143, [2009] A.C.F. No. 143 (F.C.A.) — referred to Raza v. Canada (Minister of Citizenship & Immigration) (2007), 2007 FCA 385, 2007 CarswellNat 4905, [2007] F.C.J. No. 1632, 370 N.R. 344, 289 D.L.R. 88 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

(4th) 675, 68 Admin. L.R. (4th) 225, 2007 CAF 385, 2007 CarswellNat 6368, [2008] 1 F.C.R. D-7 (F.C.A.) — followed Sellan v. Canada (Minister of Citizenship & Immigration) (2008), 2008 FCA 381, 2008 CarswellNat 4497, 76 Imm. L.R. (3d) 6, 384 N.R. 163, 2008 CAF 381, 2008 CarswellNat 6029, [2008] F.C.J. No. 1685 (F.C.A.) — considered Singh v. Canada (Minister of Citizenship and Immigration) (2014), 2014 FC 1022, 2014 CarswellNat 4194, 2014 CF 1022, 2014 CarswellNat 5175, 31 Imm. L.R. (4th) 127 (F.C.) — followed Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 72(1) — considered s. 97 — considered s. 110(1) — considered s. 110(4) — considered s. 113(a) — considered Rules considered: Refugee Appeal Division Rules, SOR/2012-257 R. 29(1) — considered R. 29(2) — considered R. 29(3) — considered R. 29(4) — considered

APPLICATION for judicial review of decision dismissing applicant’s appeal from determination that he was not Convention refugee.

Feruza Djamalova, for Applicant Sybil Thompson, for Respondent

Cecily Y. Strickland J.:

1 The Applicant, Dilshod Ismailov, has applied for judicial review of a decision of the Refugee Appeal Division of the Immigration and Refugee Board of Canada (RAD), dated September 17, 2014, in which the RAD confirmed the decision of the Refugee Protection Division (RPD) finding that the Applicant is neither a Convention refugee nor a person in need of protection (Decision). The application is brought pursuant to s 72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA]. Ismailov v. Canada (MCI) Cecily Y. Strickland J. 89

Background 2 The following background is based on the Applicant’s affidavit made in support of his application for judicial review, his Basis of Claim (BOC) and an amendment to the narrative contained in his BOC. 3 The Applicant is a 30-year-old citizen of Uzbekistan. In September 2006, he began working as the Chief Accountant for a newly established construction company which was part of the Parvina Corporation (Parvina), six months later he was promoted to the Deputy Director of Finance and Commerce. His boss at the company was Mr. Absurashid Abdusalyamov. In May 2007, the company received a target loan from the Parvina-Bank in the amount of three billion Uzbek soms to buy fifty new trucks to be used for construction projects. 4 In November 2007, Mr. Abdusalyamov called an emergency meeting with the deputy directors of companies belonging to Parvina. He told them that Parvina was subject to a serious investigation and they should leave the country as soon as possible. When the Applicant informed Mr. Abdusalyamov that he did not have any money to leave the country, he was given USD$2000. He quit his job that day and the next day left for Moscow. 5 The Applicant spent the next two years in Moscow. When he called home, his father told him that law enforcement agencies were looking for him and it was not safe to return. In November 2009, the Applicant’s father told him that he had gone to the prosecutor’s office on the Appli- cant’s behalf and explained that his son was an innocent bystander of the company. His father also gave the prosecutor USD$5000, after which the law enforcement agencies stopped bothering the Applicant’s family. 6 The Applicant returned to Uzbekistan in January 2010 but, because he still felt unsafe, he renewed his passport and applied for an exit permit which he received later that month. In April 2012, the Applicant heard rumours that Mr. Abdusalyamov had been caught in Kazakhstan and that Uzbekistan had requested his extradition. This news worried the Appli- cant, so he renewed his exit permit, which he received in July, 2012. 7 In January 2013, the case against Parvina was reopened and the Ap- plicant was called in for a meeting with the prosecutor’s office. An inter- rogation officer questioned him about his and Mr. Abdusalyamov’s roles at Parvina. The Applicant was told to return the next day, and when he did, he was questioned about the 3 billion Uzbeki soms bank loan from Parvina-Bank that was used to purchase the trucks. When asked if he 90 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

knew that the loan was a financial fraud, the Applicant explained that, to his knowledge, the loan was obtained pursuant to a valid contract. 8 After informing the Applicant that he should return the 3 billion Uzbeki soms or face 18 years in prison for his involvement with the company, the officer offered the Applicant a deal if he testified against Mr. Abdusalyamov in a manner to be stipulated by the officer. The Ap- plicant was asked to return the next morning. At that meeting the Appli- cant told the officer that he would not testify against his former boss because he had not done anything illegal and the loan was legitimate. The officer was unhappy with this response and told the Applicant it would be easy to charge and detain him, given his former position within the company and that many officers from other Parvina companies, who had held high positions like his, had already been sentenced to 10 to 18 years of imprisonment. The officer told the Applicant to return the next day and allowed him to leave. However, the Applicant never went back. 9 Following this meeting, the Applicant started looking for ways to leave Uzbekistan. He eventually secured a visitor visa from the Canadian Embassy in Moscow and left Uzbekistan on March 10, 2013. On the same day that he arrived in Canada, he met with a lawyer who advised him that he could apply for protection, which he did. He claims that he requires protection due to his fear of torture and cruel and unusual pun- ishment by the prosecutor’s office in Uzbekistan for his refusal to coop- erate in their investigation against his former boss. 10 The Applicant’s claim was heard by the RPD on November 19, 2013. The RPD found the Applicant’s story not to be credible and rendered a negative decision at the hearing. In January 2014, the Applicant appealed the RPD’s decision to the RAD, which allowed his appeal in a decision dated April 16, 2014. On May 1, 2014, the Minister filed an application for judicial review of the RAD’s decision, and then subsequently brought a motion for an order granting the application. On June 3, 2014, Justice Heneghan granted the order, on consent, and the matter was remitted back to the RAD for redetermination. 11 On September 17, 2014, the RAD issued its decision in the redetermi- nation, dismissing the Applicant’s appeal and confirming the decision of the RPD. The Applicant subsequently filed the present application for leave and judicial review of the RAD’s decision in that regard. Ismailov v. Canada (MCI) Cecily Y. Strickland J. 91

The RPD Decision 12 The RPD decision was delivered orally on November 19, 2013. The RPD found that there was no nexus between the Applicant’s claim and any of the five Convention refugee grounds. It rejected the suggestion of a possible imputed political opinion because the Applicant’s fear was not based on political opinion but arose due to his former association with Parvina. As such, the Applicant’s claim was only assessed pursuant to s 97 of the IRPA. 13 The RPD found that the determinative issue was the Applicant’s cred- ibility which it assessed, drawing a number of negative inferences. 14 The RPD noted that the Applicant testified that the police had visited his parents’ home in Uzbekistan after he left the country in March 2013. However, the Applicant did not mention these police visits in his BOC narrative and the RPD found that his explanation for omitting this infor- mation, being that he was afraid that the information might get back to his home, was unreasonable given the level of detail already contained in his BOC. It drew a negative inference from this. 15 The RPD also drew a negative inference from the fact that the Appli- cant could not provide any details about these police visits. The Appli- cant testified that he never discussed them with his parents because it was difficult for them to discuss his current situation. However, the RPD found this explanation to be implausible and, on the balance of probabili- ties, that the police did not visit his parents’ home after the Applicant arrived in Canada. This was a central issue of his claim as it spoke to the question of his fear of arrest should he return to Uzbekistan. 16 Based on the Applicant’s inability to recall details about his visits to the prosecutor’s office in January 2013, including the exact dates these meetings took place, the RPD drew a third negative inference. The RPD found the Applicant’s lack of memory on this issue to be especially troubling since the Applicant had provided very specific details in his BOC narrative. While the Applicant explained that he could not recall the details because he was nervous, the RPD did not accept this explana- tion. The RPD found it reasonable that the Applicant would be better able to recall the specific details of his claim since he had provided a great amount of detail in his BOC narrative and because the meetings were the very reason he decided to flee. 17 The RPD also drew a negative inference because the Applicant testi- fied that, after his third meeting, the prosecutor told him to return the 92 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

next week, however, in his BOC narrative he wrote that he was in- structed to return the next day. 18 Finally, the RPD noted that the Applicant was unable to provide a reasonable explanation for why the authorities would let him travel freely in and out of Uzbekistan after his last meeting with the prosecutor. The Applicant testified that he was able to travel because there were no pend- ing criminal charges against him and the investigation was “huge” and he was not the only person being investigated. However, the RPD found that if this was a hugely important investigation and the Applicant failed to appear after the third visit as requested, the authorities in Uzbekistan would not have allowed him to leave freely. 19 For all these reasons, the RPD concluded that the Applicant was not interviewed and was not being sought by the prosecutor’s office in Uz- bekistan in 2013. 20 Further, the RPD found that if the Applicant was at risk of being ar- rested as a result of the circumstances that he had described, and fifty- nine other employees had been arrested since 2008, then the authorities in Uzbekistan would have taken some action between 2010 and 2013. 21 As a result, the Applicant’s claim was rejected.

Decision Under Review - The RAD Decision 22 Before the RAD, the Applicant submitted new evidence, which con- sisted of eleven news articles. The RAD considered whether this evi- dence was admissible pursuant to s 110(4) of the IRPA. It found that if the statutory conditions of s 110(4) were met, then the factors set out by the Federal Court of Appeal in Raza v. Canada (Minister of Citizenship & Immigration), 2007 FCA 385 (F.C.A.) [Raza] had to be considered in assessing the admissibility of the new evidence. 23 The RAD concluded that the majority of the articles did not meet the statutory requirements as they pre-dated November 19, 2013, the date on which the Applicant’s claim was rejected, and could reasonably have been available prior to that date. 24 With regard to the three articles that did meet the statutory require- ments, the RAD went on to assess this new evidence according to theR- aza factors, being newness, credibility, relevance and materiality, to de- termine whether it should be admitted. The RAD concluded that none of the new evidence was admissible. It then considered its role in reviewing the RPD’s decision and concluded that it was required to conduct an in- Ismailov v. Canada (MCI) Cecily Y. Strickland J. 93

dependent assessment of the evidence, as explained by Justice Phelan in Huruglica v. Canada (Minister of Citizenship and Immigration), 2014 FC 799 (F.C.) at paras 54-55). 25 In that regard, the RAD first considered whether the RPD erred in law by adopting a narrow interpretation of political opinion. On this question, the RAD found that even if the RPD had found there to be a nexus be- tween the Applicant’s fear as a consequence of his former involvement with Parvina, and a political or imputed political opinion, the outcome would have been the same given the RPD’s findings with respect to credibility. 26 The RAD next addressed the RPD’s credibility assessment. With re- gard to the Applicant’s testimony surrounding the police visits to his home after he fled Uzbekistan and his failure to mention these in his BOC, the Applicant argued before the RAD that he did not discuss the details of these visits with his parents over the phone because wiretap- ping in Uzbekistan is common. However, the RAD noted that it had re- viewed the audio recording of the hearing, during which the Applicant testified that his parents did not wish to discuss this matter and had not said anything about wiretapping. As a result, the RAD concluded that the RPD committed no error in arriving at its conclusion. Further, that it would have been reasonable for the Applicant to have included informa- tion about these visits in his BOC narrative, as this indicated a continuing intention on the part of the perpetrator. Thus, the RPD properly assessed the evidence in concluding that the police visits did not actually occur. However, the RAD also found that the RPD erred in arriving at an im- plausibility finding based on the fact that the Applicant had not discussed the visits with his parents. 27 With regard to the Applicant’s failure to recall the exact dates of his meetings with the prosecutor, the Applicant submitted before the RAD that these findings should not be held against him. However, the RAD disagreed, noting that this information formed a significant aspect of the Applicant’s claim in that he feared the prosecutor’s actions against him which allegedly led to his departure from Uzbekistan. Having listened to the audio recording, the RAD noted that the RPD indicated on the record that the Applicant had no difficulty in recalling other dates, yet he had difficulty recalling the very issues that led to his departure. 28 The RAD also found that the RPD properly assessed the Applicant’s evidence regarding the prosecutor’s final instructions. The RAD found that the Applicant contradicted himself at the hearing because he initially 94 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

testified that, after the third visit, the prosecutor told the Applicant he would call him if needed. However, in his BOC he stated that he was told to return the next day. 29 In light of these findings, the RAD concurred with the RPD’s finding that the Applicant’s evidence about being pursued by the prosecutor was not credible, particularly since he was unable to recall the details of the events that caused him to flee from Uzbekistan which went to the heart of his claim. Finally, the RAD agreed with the RPD’s finding that the Applicant’s exit from Uzbekistan, under the alleged circumstances, was lacking in credibility. 30 Before the RAD, the Applicant also argued that the RPD failed to consider his risk as a high-ranking employee of a company under investi- gation in Uzbekistan and to consider documentary evidence in that re- gard. The RAD concluded that since the RPD made significant negative credibility findings, it was not necessary for it to consider this risk, as its final conclusion was that the Applicant was not being sought by the pros- ecutor’s office, and therefore, he did not face any risk upon return. The RAD acknowledged that the RPD accepted a number of facts related to the Applicant’s employment at Parvina and the scandal involving that company, however, it noted that his risk on return, the sequence of events leading to his departure, as well as what has allegedly transpired since his departure, had been called into question. 31 Before the RAD, Applicant’s counsel also submitted a decision of the European Court of Human Rights (ECHR) to support his argument that a person should not be returned to Uzbekistan if there is a risk of interroga- tion. However, the RAD found that it is not bound by international juris- prudence and thus it was not necessary for it to consider that decision. In addition, since it had found the Applicant was not being pursued, the issue of interrogation upon his return was not material. In support of this finding, the RAD found that the RPD had correctly noted that other indi- viduals in the same position as the Applicant were imprisoned in 2008, and yet, the authorities had not taken any action against the Applicant between 2010 and 2013. 32 For all these reasons, the RAD concluded that the RPD’s conclusions were based on the material aspects of the claim, and given the evidence that was before the RPD, the RAD would have arrived at the same conclusion. Ismailov v. Canada (MCI) Cecily Y. Strickland J. 95

Issues 33 In my view, the issues are as follows: 1. Did the RAD err in rejecting the new evidence filed by the Applicant? 2. Did the RAD err by not conducting an independent assessment under s 97 of the IRPA? 3. Did the RAD err in its assessment of the Applicant’s credibility?

Standard of Review 34 The RAD’s assessment of the new evidence involves both its inter- pretation of s 110(4), including whether the factors from Raza should apply, and its application of that provision to the facts in the present case. I agree with Justice Gagn´e’s reasoning in Singh v. Canada (Minister of Citizenship and Immigration), 2014 FC 1022 (F.C.) [Singh], that the RAD’s interpretation of s 110(4) is neither a question of law that is of general importance to the legal system as a whole, nor a matter that is outside the expertise of the RAD. As a result, the reasonableness stan- dard of review should apply to both its interpretation and application of s 110(4) (Singh at paras 41-42). Therefore, the reasonableness standard ap- plies to the first issue. 35 As to the second and third issues, the RAD’s decision not to conduct a review of the objective documentary evidence related to the Appli- cant’s s 97 claim is a question of mixed fact and law (Acosta v. Canada (Minister of Citizenship & Immigration), 2009 FC 213 (F.C.) at paras 9- 11; Proph`ete v. Canada (Minister of Citizenship & Immigration), 2009 FCA 31 (F.C.A.) at para 7). The RAD’s assessment of the evidence re- lated to the Applicant’s credibility and its resulting findings are questions of fact that are subject to deference. Both of these issues are reviewable on the reasonableness standard (New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9 (S.C.C.) at para 53). Given the disposition of this matter, as set out in reasons below, it is not necessary in this case to address the role of the RAD in reviewing the RPD’s decision.

Legislation 36 The relevant provision of the IRPA is s 110(4), which reads as fol- lows: 110. (1) Subject to subsections (1.1) and (2), a person or the Minister may appeal, in accordance with the rules of the Board, on a question of law, of fact or of mixed law and fact, to the Refugee Appeal Divi- 96 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

sion against a decision of the Refugee Protection Division to allow or reject the person’s claim for refugee protection. ... (4) On appeal, the person who is the subject of the appeal may pre- sent only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. 110. (1) Sous r´eserve des paragraphes (1.1) et (2), la personne en cause et le ministre peuvent, conform´ement aux r`egles de la Com- mission, porter en appel — relativement a` une question de droit, de fait ou mixte — aupr`es de la Section d’appel des r´efugi´es la d´ecision de la Section de la protection des r´efugi´es accordant ou rejetant la demande d’asile. ... (4) Dans le cadre de l’appel, la personne en cause ne peut pr´esenter que des el´´ ements de preuve survenus depuis le rejet de sa demande ou qui n’´etaient alors pas normalement accessibles ou, s’ils l’´etaient, qu’elle n’aurait pas normalement pr´esent´es, dans les circonstances, au moment du rejet. 37 The relevant provision of the Refugee Appeal Division Rules, SOR/2012-257 [RAD Rules] reads as follows: 29. (1) A person who is the subject of an appeal who does not pro- vide a document or written submissions with the appellant’s record, respondent’s record or reply record must not use the document or provide the written submissions in the appeal unless allowed to do so by the Division. (2) If a person who is the subject of an appeal wants to use a docu- ment or provide written submissions that were not previously pro- vided, the person must make an application to the Division in accor- dance with rule 37. (3) The person who is the subject of the appeal must include in an application to use a document that was not previously provided an explanation of how the document meets the requirements of subsec- tion 110(4) of the Act and how that evidence relates to the person, unless the document is being presented in response to evidence pre- sented by the Minister. (4) In deciding whether to allow an application, the Division must consider any relevant factors, including (a) the document’s relevance and probative value; Ismailov v. Canada (MCI) Cecily Y. Strickland J. 97

(b) any new evidence the document brings to the appeal; and (c) whether the person who is the subject of the appeal, with rea- sonable effort, could have provided the document or written submissions with the appellant’s record, respondent’s record or reply record. 29. (1) La personne en cause qui ne transmet pas un document ou des observations ecrites´ avec le dossier de l’appelant, le dossier de l’intim´e ou le dossier de r´eplique ne peut utiliser ce document ou transmettre ces observations ecrites´ dans l’appel a` moins d’une autorisation de la Section. (2) Si la personne en cause veut utiliser un document ou transmettre des observations ecrites´ qui n’ont pas et´´ e transmis au pr´ealable, elle en fait la demande a` la Section conform´ement a` la r`egle 37. (3) La personne en cause inclut dans la demande pour utiliser un doc- ument qui n’avait pas et´´ e transmis au pr´ealable une explication des raisons pour lesquelles le document est conforme aux exigences du paragraphe 110(4) de la Loi et des raisons pour lesquelles cette preuve est li´ee a` la personne, a` moins que le document ne soit pr´esent´e en r´eponse a` un el´´ ement de preuve pr´esent´e par le ministre. (4) Pour d´ecider si elle accueille ou non la demande, la Section prend en consid´eration tout el´´ ement pertinent, notamment: a) la pertinence et la valeur probante du document; b) toute nouvelle preuve que le document apporte a` l’appel; c) la possibilit´e qu’aurait eue la personne en cause, en faisant des efforts raisonnables, de transmettre le document ou les observations ecrites´ avec le dossier de l’appelant, le dossier de l’intim´e ou le dossier de r´eplique.

Submissions and Analysis

Issue 1: Did the RAD err in rejecting the new evidence filed by the Applicant? Applicant’s Submissions 38 The Applicant submits that the new evidence is relevant and material in the sense that it would have changed the outcome of the RPD’s deci- sion. Further, the new evidence that was published after the rejection of the Applicant’s claim was not reasonably available to be presented to the RPD. As to the evidence that pre-dated the RPD hearing, these articles were submitted in response to the RPD’s credibility findings and, there- 98 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

fore, the Applicant could not reasonably have been expected to provide them to the RPD. 39 Finally, the Applicant submits that the RAD made a reviewable error when it failed to consider the decision from the ECHR that spoke to the existing risk for individuals with the Applicant’s profile in Uzbekistan. The RAD had an obligation to review and assess this decision in accor- dance with s 110(4) of the IRPA.

Respondent’s Submissions 40 The Respondent submits that the RAD reasonably excluded the new evidence that post-dated the Applicant’s claim by relying on the factors set out in Raza. This is because the RPD generally retains the privileged role of assessing the entirety of the evidence presented by a refugee claimant. Secondly, in conducting such assessments, the Raza factors of newness, credibility, relevance and materiality are broadly applicable to the assessment of evidence and the universality of those principles is not undermined by the fact that they have been applied in another decision- making context. Third, the RAD is largely limited to conducting a paper- based review of the RPD’s decision and is not intended to be a forum that provides claimants with a second chance to correct or add to a defec- tive evidentiary record that was before the RPD. 41 The Respondent acknowledges that in Singh, Justice Gagn´e held that the RAD unreasonably applied Raza in its interpretation of s 110(4). However, the Respondent submits that Singh can be distinguished be- cause, in that case, Justice Gagn´e accepted the applicant’s assertion that he mistakenly believed the new evidence had been sent to the RPD, and thus she found that the RAD unreasonably concluded that the applicant should have brought that evidence before the RPD. By contrast, in the present case, the Applicant was unable to reasonably explain his failure to provide the RPD with the documents that pre-dated his hearing. 42 In the alternative, and regardless of the fact that the RAD applied the Raza factors, the Applicant submits that the outcome of the RAD’s assessment of the new evidence was reasonable. The eight documents that pre-date the rejection of the Applicant’s claim were properly ex- cluded by the RAD because they were reasonably available prior to the rejection of the Applicant’s claim, and thus did not meet the statutory requirements of s 110(4) as the RAD found at paragraph 10 of its deci- sion. The Applicant’s submission that they were submitted in response to the RPD’s credibility findings is not sufficient to dispense with the statu- Ismailov v. Canada (MCI) Cecily Y. Strickland J. 99

tory requirement that the Applicant “could not reasonably have been ex- pected” to present these documents at the time the RPD rejected his claim. 43 Further, the evidence that post-dates the rejection of the Applicant’s claim would not have changed the outcome of the Applicant’s claim if it had been admitted into evidence. The RAD’s assessment of each item demonstrates how each failed to corroborate the Applicant’s allegations of risk. The RAD reasonably rejected the first article because it pertained to the identity of the Applicant’s boss which was not relevant to the RAD’s assessment of the RDP’s adverse credibility. The RAD reasona- bly rejected the second and third articles because they failed to meet the credibility criterion. This finding was reasonably open to the RAD to make. 44 Finally, the Respondent submits that the RAD was entitled to reject the decision of the ECHR as it is not binding in the Canadian context (Farah v. Canada (Minister of Citizenship and Immigration), 2012 FC 1149 (F.C.) at para 19 [Farah]; Ince v. Canada (Minister of Citizenship and Immigration), 2014 FC 249 (F.C.) at para 11).

Analysis (a) Articles that pre-date the rejection of the Applicant’s claim 45 The Applicant’s claim was rejected on November 19, 2013. Eight of the eleven news articles he submitted as new evidence before the RAD were published before this date. In concluding that these articles were not admissible because they were reasonably available to the Applicant prior to the rejection of his claim, the RAD relied on a strict statutory interpre- tation of s 110(4) of the IRPA. 46 The Applicant, however, argues that the articles did meet the statu- tory requirements, as he could not reasonably have been expected to pre- sent these articles before the RPD because they respond to the RPD’s credibility concerns. The Respondent, on the other hand, submits that this explanation does not meet the test of s 110(4). 47 Assuming for the moment that the Applicant’s argument raises a rea- sonable explanation, and I am not at all sure that it does, it is necessary to consider whether these articles actually respond to the credibility con- cerns raised by the RPD, which relate generally to the Applicant’s claim that he was being pursued by the prosecutor’s office in Uzbekistan. In that regard and for the most part, these articles are not directly relevant to 100 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

the RPD’s credibility concerns as they do not speak to the specific cir- cumstances surrounding the Applicant’s claim. Rather, they relate gener- ally to the Uzbekistani authorities’ treatment of political dissidents, as well as the treatment of employees who worked for large-scale media companies that were under investigation. 48 While these articles do confirm that the prosecutor’s office has been known to engage in “informal meetings”, where suspected dissidents are questioned about their activities, they do not speak specifically to the treatment of individuals involved with the Applicant’s former company and the alleged scandal. 49 Several of the articles also refer to the authorities’ treatment of em- ployees from other Uzbekistani corporations involved in tax and embez- zlement scandals. For example, the article titled “Uzdunrobita managers convicted, MTS subsidiary now owned by the government”, dated Sep- tember 18, 2012, reports that employees of the company under investiga- tion “were threatened and underwent strong psychological pressure which was aimed to get them to give self-incriminating testimony”. 50 However, once again, these articles do not speak to the scandal in- volving the Applicant’s former company. Nor are they sufficient, in my view, to displace the RPD’s specific credibility findings, which were based on the Applicant’s failure to mention the police visits to his par- ents’ home in his BOC, and his inconsistent testimony about his own alleged experience of being questioned by the prosecutor’s office. In as- sessing the Applicant’s credibility, the RPD did not necessarily take is- sue with the occurrence of these “informal meetings”, although it ulti- mately concluded on the balance of probabilities that he was not interviewed or being sought by the prosecutor’s office based on its credi- bility concerns. Rather, the RPD found the Applicant’s evidence not to be credible because he was unable to recall the specific details of these meetings. The RAD reached the same conclusion. 51 Therefore, regardless of whether the Applicant’s argument raises a reasonable explanation pursuant to s 110(4) and regardless of the appli- cability of the Raza factors, these articles simply do not respond to the specific credibility concerns raised by the RPD and, therefore, they are not relevant to the outcome as credibility was determinative in the RAD’s decision. Further, although the Applicant frames the documents as a response to the RPD’s credibility concerns so as to offer an explana- tion as to why he could not reasonably have been expected to present these articles before the RPD, the articles are generally illustrative of the Ismailov v. Canada (MCI) Cecily Y. Strickland J. 101

investigative tactics employed by the Uzbekistani prosecutor’s office. Therefore, as noted by the RAD, in that regard they serve to corroborate the Applicant’s claim. Accordingly, it was also reasonable for the RAD to conclude that the Applicant could reasonably have been expected to produce these articles at the hearing before the RPD. 52 However, at least two of the articles do not fall within the above anal- ysis. As the Applicant submits, he could not reasonably have been ex- pected to anticipate that the RPD would question the fact that he was able to safely exit Uzbekistan despite being subject to an on-going inves- tigation by the prosecutor’s office. However, as the articles titled “Uz- bekistan: Ferghana Journalist is Being Persecuted for his Help to Art- ists”, and “Special Security Services of Uzbekistan Compiling Dossiers on Independent Journalists” both establish, individuals subject to investi- gation have been able, and were even permitted, to leave the country. I would also note that the article entitled “Uzbekistan: Slander Conviction a Dangerous Assault on Artists” may be supportive of this position. 53 In my view, it was unreasonable for the RAD to conclude that the Applicant should have reasonably been expected to submit these articles to the RPD, as the Applicant could not have anticipated that the RPD would be suspicious about the fact that he was able to leave the country. Further, the articles directly contradict the RPD’s finding in that regard and the negative credibility inference that it drew from it. In addressing the RPD’s finding that, if this was a huge investigation as the Applicant submitted, and if he had not appeared at the prosecutor’s office as re- quested, then the authorities in Uzbekistan would not have allowed him to travel freely out of the country, the RAD stated that in the absence of evidence to the contrary, the RPD’s credibility finding was logical. How- ever, the new evidence was just such evidence to the contrary.

(b) Articles that post-date rejection of the Applicant’s claim 54 With regard to the new evidence that post-dates the rejection of the Applicant’s claim, there are two questions to consider. First, was it rea- sonable for the RAD to apply the Raza factors in assessing the admissi- bility of this evidence? Second, if so, did the RAD reasonably conclude that this evidence should be excluded because it was either not relevant or not credible? 55 In Raza, the Federal Court of Appeal considered the interpretation of s 113(a) of the IRPA, which sets out the requirements for the admissibil- 102 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th) ity of new evidence in a Pre-Removal Risk Assessment (PRRA) applica- tion. The Court concluded, at paragraph 13, that: [...] Paragraph 113(a) asks a number of questions, some expressly and some by necessary implication, about the proposed new evi- dence. I summarize those questions as follows: 1. Credibility: Is the evidence credible, considering its source and the circumstances in which it came into existence? If not, the evidence need not be considered. 2. Relevance: Is the evidence relevant to the PRRA application, in the sense that it is capable of proving or disproving a fact that is relevant to the claim for protection? If not, the evi- dence need not be considered. 3. Newness: Is the evidence new in the sense that it is capable of: (a) proving the current state of affairs in the country of removal or an event that occurred or a circumstance that arose after the hearing in the RPD, or (b) proving a fact that was unknown to the refugee claim- ant at the time of the RPD hearing, or (c) contradicting a finding of fact by the RPD (including a credibility finding)? If not, the evidence need not be considered. 4. Materiality: Is the evidence material, in the sense that the ref- ugee claim probably would have succeeded if the evidence had been made available to the RPD? If not, the evidence need not be considered. 5. Express statutory conditions: (a) If the evidence is capable of proving only an event that occurred or circumstances that arose prior to the RPD hearing, then has the applicant established either that the evidence was not reasonably available to him or her for presentation at the RPD hearing, or that he or she could not reasonably have been expected in the circumstances to have presented the evidence at the RPD hearing? If not, the evidence need not be considered. (b) If the evidence is capable of proving an event that oc- curred or circumstances that arose after the RPD hear- ing, then the evidence must be considered (unless it is Ismailov v. Canada (MCI) Cecily Y. Strickland J. 103

rejected because it is not credible, not relevant, not new or not material). 56 While s 110(4) is worded nearly identically to s 113(a), there are cur- rently two diverging views from this Court as to whether it is appropriate to apply the Raza factors in the context of the RAD. First, as noted by the Respondent, in Singh, Justice Gagn´e found that the Raza factors are not applicable in the context of the RAD for several reasons (at paras 48-55). She notes that the RAD, unlike a PRRA officer, is a quasi-judicial ad- ministrative tribunal that is tasked with conducting “an appellate review of the correctness of the RPD’s determination” (at para 51). She also notes that the purpose of the RAD was described in the Parliamentary debates as providing a “full fact-based appeal” for claimants, which in turn requires a “sufficiently flexible” approach to the admission of new evidence (at para 55). 57 However, in Denbel v. Canada (Minister of Citizenship and Immigra- tion), 2015 FC 629 (F.C.), Justice Mosley held that the RAD was entitled to import the Raza analysis into its determination of whether new evi- dence is admissible under s 110(4) of the IRPA (at para 40). In reaching this conclusion, he relied on Iyamuremye c. Canada (Ministre de la Citoyennet´e et de l’Immigration), 2014 FC 494 (F.C.) at para 45, where Justice Shore held that: Considering the dearth of case law interpreting subsection 110(4) and given the essential similarity between the provisions in question, the Court does not find it unreasonable for the RAD to have referred to the factors set out in Raza, above, to analyse the admissibility of fresh evidence. This case law established a legal meaning to the gen- eral application of the words “new evidence,” which, in the Court’s view, is consistent with Parliament’s clear intention with regard to subsection 110(4) to require that the RAD review the RPD’s decision as is, unless new, credible and relevant evidence arose after the rejec- tion, that might have affected the outcome of the RPD hearing if that evidence had been presented to it. 58 Justice Mosley also noted that Rule 29(4) of the RAD Rules expressly refers to some of the Raza factors. 59 One of the questions of general importance certified in Singh was, considering the role of a PRRA officer and that of the RAD, does the Raza test for the interpretation of s 113(a) of the IRPA also apply to s 110(4)? As the Federal Court of Appeal will eventually answer that ques- tion, I am most reluctant to voice another opinion in the debate. How- ever, to my mind, it is not unreasonable for the RAD to apply 104 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

the Raza factors which, if necessary, could be modified to address any specific concern arising from the fact that the RAD and a PRRA officer serve different purposes. In the circumstances of this case, I do not see that such a modification is required. 60 The RAD found that neither of the articles that post-date the rejection of the Applicant’s claim, when applying the factors set out in Raza, met the test for newness. 61 The first article, titled “Popular Darakchi and Sogdiana Papers on Verge of Closure in Uzbekistan”, discusses the fact that the Applicant’s former boss was wanted by the authorities in connection with his owner- ship of two media companies that were under investigation. In my view, the RAD reasonably concluded that this evidence was not new in the sense that it did not meet the test for relevance. The RPD did not raise any credibility issues regarding the identity of the Applicant’s former boss and, therefore, this article was not “capable of proving or disproving a fact that is relevant to the claim for protection” (Raza at para 13). 62 The second article, titled “Uzbekistan: Travel Agencies Require Citi- zens to undertake not to Seek Political Asylum Abroad”, speaks to the fact that Uzbek citizens who wish to travel abroad are required to under- take not to seek political asylum abroad, and that if they do request asy- lum, they may face criminal sanctions upon return. In my view, the RAD reasonably found this evidence did not meet the credibility factor in Raza because its only source is an unnamed employee of an unnamed Uzbek travel agency. 63 With regard to the third article, titled “Reincarnation of Iron Curtain” this was published by an online newspaper and states that based on infor- mation from reliable sources, who are not identified, community com- mittees have started to take an interest in people who travel out of Uz- bekistan. In my view, the RAD also reasonably concluded that this article did not meet the credibility factor. Moreover, the RAD reasonably found this evidence to be somewhat speculative in nature, as it appears to be written as an opinion piece, rather than as an objective piece of jour- nalism based on a variety of sources. 64 Accordingly, in my view, the RAD reasonably refused to admit the new evidence that post-dates the Applicant’s claim. None of this evi- dence is “new” in the sense described by the Federal Court of Appeal at paragraph 13 of Raza. And, in any event, this evidence does little to sup- port the Applicant’s claim. Ismailov v. Canada (MCI) Cecily Y. Strickland J. 105

(c) ECHR Decision 65 The Applicant also submits that the RAD erred by failing to apply the test for new evidence to the decision of the ECHR titled FN and Others v Sweden, No 28774/09, (2012) (ECHR Decision), which he submitted to support his claim that he would face a risk of interrogation upon return to Uzbekistan. That decision involves a family of Uzbek nationals who were subject to deportation from Sweden. That Court found it probable that, if returned to Uzbekistan, the family would be detained and interro- gated about their activities while abroad. In addition, the Court referred to previous cases where it had found that “the practice of torture of those in police custody was systemic and indiscriminate and concluded that ill- treatment of detainees remained a pervasive and enduring problem in Uz- bekistan”. As a result of these cases, as well as information from other international sources that showed the situation had not improved, the Court concluded that the family faced a real risk that they would be sub- jected to persecutory treatment upon return. 66 The RAD declined to admit this evidence because it found that it was not bound by jurisprudence outside of Canada, and because it had found that the Applicant was not being pursued and, therefore, the issue of in- terrogation upon his return was not material. 67 In my view, the fact that the RAD is not bound by jurisprudence outside of Canada is irrelevant. The Applicant did not submit this evi- dence for a point of law, but rather for its factual findings regarding the country conditions in Uzbekistan. In other words, this decision formed part of the new evidence that was submitted to the RAD. Thus, the RAD erred by dismissing it out of hand and refusing to determine whether the decision satisfied the test for new evidence. 68 In addition, the fact that the RPD found the Applicant was not being pursued is also irrelevant to assessing the admissibility of this decision. The ECHR Decision speaks to the general issue of interrogation upon return after a citizen has made an asylum claim abroad. It is not linked to the interrogation the Applicant fears as a result of his former employ- ment, but rather it forms the basis of a sur place claim based on a fear of interrogation after having made a claim for protection in Canada. Ac- cordingly, the RAD unreasonably refused to assess the admissibility of this evidence. 106 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

Issue 2: Did the RAD err by not conducting an independent assessment under s 97 of the IRPA? 69 The Applicant submits that the RAD erred in law by finding that, if the Applicant lacked credibility, there was no need to consider risk to him in Uzbekistan. The RAD also erred by failing to conduct an indepen- dent assessment of the new evidence the Applicant submitted on appeal to support his allegations of risk. 70 In this regard, the Applicant relies on Sellan v. Canada (Minister of Citizenship & Immigration), 2008 FCA 381 (F.C.A.) at para 3, in which the Federal Court of Appeal held that where the RPD makes a general finding that a claimant lacks credibility, that finding may be sufficient to dispose of the claim “unless there is independent and credible documen- tary evidence in the record capable of supporting a positive disposition of the claim.”. 71 The Applicant also relies on Pathmanathan v. Canada (Minister of Citizenship & Immigration), 2012 FC 519 (F.C.) at paras 52-57, where this Court accepted the RPD’s finding that the claimant was “not a credi- ble witness” but overturned the decision because the documentary evi- dence indicated that a person with the claimant’s profile, a 37 year-old Tamil male, would be at risk in Sri Lanka. 72 The Applicant points out that at paragraph 39 of the decision, the RAD concurred that the following facts were accepted by the RPD: a) The Applicant was employed as Deputy Director of Finance and Commerce at Parvina; b) In 2008 Parvina was accused of committing fraud and 59 employ- ees were convicted; c) The CEO of Parvina was able to flee the country; d) The Applicant also left the country and spent 2 years hiding in Moscow; e) The Applicant returned to Uzbekistan in 2010 as the Parvina case was closed and no charges were laid against him; f) The Applicant’s former boss and the CEO of Parvina was caught in Kazakhstan in April 2012 and deported back to Uzbekistan; and g) Parvina case was a major scandal in Uzbekistan. 73 Based on these accepted facts, and the fact that there was sufficient documentary evidence in the materials indicating that an individual with the Applicant’s profile, a high-rank employee of a company that was cur- Ismailov v. Canada (MCI) Cecily Y. Strickland J. 107

rently under investigation, would be at risk in Uzbekistan, the RAD was required to make an assessment of whether the Applicant would face a risk upon return to Uzbekistan.

Analysis 74 The success of the Applicant’s argument that he fits the specific pro- file of a “high-rank employee of a company that was currently under in- vestigation” depends entirely on the new evidence. As noted above in the analysis of the admissibility of the new evidence, many of the documents that speak to this issue also corroborated the Applicant’s claim and, therefore, the RAD reasonably concluded the Applicant could reasonably have been expected to produce these articles at the hearing before the RPD. 75 While the RAD unreasonably refused to admit two articles, “Uzbeki- stan: Ferghana Journalist is Being Persecuted for his Help to Artists” and “Special Security Services of Uzbekistan Compiling Dossiers on In- dependent Journalists” because the Applicant could not reasonably have been expected to submit these articles to the RPD as he could not have anticipated that the RPD would have been suspicious about the fact that he was able to leave the country, both of those articles speak only to the circumstances of journalists. They do not support a conclusion that an individual with the profile of the Applicant, a high-ranking employee of a company that was currently under investigation, would be at risk in Uzbekistan, such that the RAD was required to make an assessment of them for that purpose. 76 In the result, the RAD did not err because there was no admissible evidence to ground the Applicant’s argument. Without evidence as to profile, the existence of the specific profile identified by the Applicant was not established, and the facts accepted by the RAD could not be compared to it to determine if the Applicant actually met that profile.

Issue 3: Did the RAD err in its assessment of the Applicant’s credibility? 77 The Applicant submits that the RAD failed to consider all of the doc- umentary evidence before concluding that the RPD did not err in reach- ing its credibility findings. 78 With regard to the RAD’s findings concerning the Applicant’s testi- mony on the alleged police visits to his home after he left for Canada, the Applicant submits that the RAD failed to assess corroborative documen- 108 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

tary evidence that was before the RPD on this point. The RAD also failed to consider the new documentary evidence confirming that Uzbek au- thorities take particular interest in citizens who are abroad. 79 With regard to the RAD’s assessment of the Applicant’s ability to exit Uzbekistan, the Applicant submits that the RAD completely ignored documentary evidence that specifically explains the perceived inconsis- tency. The Applicant submitted two articles which each explained situa- tions where journalists were called for “informal meetings” with the prosecutor’s office, but were later able to leave the country. 80 The additional new evidence submitted by the Applicant in response to the RPD’s credibility findings clearly demonstrates that the state au- thorities in Uzbekistan often use the technique of “informal meetings” to pressure and intimidate individuals of special interest to the state. These articles also demonstrate that such informal meetings often result in criminal convictions, while other suspects were permitted and able to flee the country at that early state of investigations. 81 Despite bringing this evidence to the RAD’s attention, the RAD nev- ertheless concluded, that the RPD’s finding that the Applicant would not have been permitted to leave Uzbekistan if he was under investigation was logical “in the absence of evidence to the contrary”. Thus, the RAD breached procedural fairness by failing to take this highly material docu- mentary evidence into consideration when assessing the RPD’s credibil- ity findings.

Analysis 82 As with the Applicant’s submissions regarding the RAD’s failure to conduct a s 97 analysis, the Applicant’s challenge to the RAD’s credibil- ity findings depends on the new evidence that the RAD found to be inad- missible. The RAD conducted a detailed, independent assessment of these findings by reviewing the audio recording of the hearing and mak- ing reference to inconsistencies in his testimony. 83 The RAD agreed with all of the RPD’s findings, except for the one implausibility finding based on the fact that the Applicant did not discuss the alleged police visits after he left Uzbekistan with his parents. The RAD provided its own reasons for each of these findings, and then com- pared that finding to that made by the RPD to determine whether the RPD erred. 84 However, because I have found that the RAD erred in refusing to ad- mit some of the new evidence, specifically the evidence regarding the Ismailov v. Canada (MCI) Cecily Y. Strickland J. 109

ability of citizens to leave the country after they have been questioned, the RAD’s credibility findings on this issue were unreasonable, as they were made without regard to relevant, corroborative evidence. 85 In conclusion, for the reasons set out above, the application for judi- cial review is granted. 86 On a final note, I have found above that the RAD did not err in apply- ing the Raza factors. However, that question is before the Federal Court of Appeal by way of certified question in Singh v. Canada (Minister of Citizenship and Immigration), 2014 FC 1022 (F.C.). Presumably, the Federal Court of Appeal’s analysis will also encompass whether a more flexible interpretation of s 110(4) is required. This, in turn, will address the potential admissibility of new evidence that does not meet the strict statutory requirements of s 110(4), where such evidence is sought to be submitted in response to credibility concerns identified by the RPD as the Applicant submitted in this case. Accordingly, I direct that when the RAD rehears this matter, it shall be guided by any relevant determina- tions of the Federal Court of Appeal in considering the admissibility of all of the new evidence. I recognize that this may require the determina- tion of this matter to be delayed until the Federal Court of Appeal has made its decision, however, such a delay is reasonable in the circumstances.

Judgment THIS COURT’S JUDGMENT is that 1. The application for judicial review is granted. The RAD Decision is set aside and the matter is remitted for redetermination. When the RAD rehears this matter, in considering the admissibility of all of the new evidence, it shall be guided by any relevant determina- tion of the Federal Court of Appeal arising from its decision con- cerning the certified question in Singh v. Canada (Minister of Citizenship and Immigration), 2014 FC 1022 (F.C.); 2. No question of general importance is proposed by the parties and none arises; and 3. There will be no order as to costs. Application granted. 110 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

[Indexed as: Vavilov v. Canada (Minister of Citizenship and Immigration)] Alexander Vavilov, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: T-1976-14 2015 FC 960, 2015 CF 960 B. Richard Bell J. Heard: April 14, 2015 Judgment: August 10, 2015* Immigration and citizenship –––– Appeals to Federal Court of Appeal and Supreme Court of Canada — Certification of questions by Federal Court Trial Division — Of general importance –––– Foreign national was born in Canada — Foreign national’s parents had entered Canada from Russia prior to birth of foreign national, and assumed identities of two deceased Canadians — Canadian government issued passports to foreign national’s parents under their assumed identities — Family moved to France and then to United States in and obtained American citizenship — Foreign national’s parents were exposed as unregistered agents of foreign government taking direction from and being paid by Russian Foreign Intelligence Service (SVR), collecting intelligence for SVR — In 2010 parents were returned to Russia via spy swap — American gov- ernment revoked foreign national’s passport and American citizenship and for- eign national went to Russia where he was issued Russian passport and birth certificate — Foreign national subsequently attempted to obtain Canadian pass- port after amending Ontario birth certificate to parents’ true identities — For- eign national obtained Certificate of Canadian Citizenship — Registrar subse- quently cancelled certificate on ground that foreign national’s parents were not lawfully Canadian citizens or permanent residents and were employees or repre- sentatives of foreign government for purposes of s. 3(2)(a) of Citizenship Act — Foreign national brought application for judicial review of Registrar’s deci- sion — Application dismissed — Anyone who moved to Canada with explicit goal of establishing life to further foreign intelligence operation, be it in this country or any other, was doing so in service of or as employee or representative of, foreign government — Registrar correctly found that this scenario was cap-

* A corrigendum issued by the court on October 10, 2015 has been incorporated herein. Vavilov v. Canada (MCI) 111

tured by s. 3(2)(a) of Citizenship Act — Two questions of general importance were certified — What is standard of review applicable to determination of whether foreign national is not Canadian citizen by reason of application of par- agraph 3(2)(a) of Citizenship Act? — Are words “other representative or em- ployee of a foreign government in Canada” found in paragraph 3(2)(a) of Citi- zenship Act limited to foreign nationals who benefit from diplomatic privileges and immunities?. Immigration and citizenship –––– Citizenship — Citizenship by birth — General principles –––– Foreign national was born in Canada — Foreign na- tional’s parents had entered Canada from Russia prior to birth of foreign na- tional, and assumed identities of two deceased Canadians — Canadian govern- ment issued passports to foreign national’s parents under their assumed identities — Family moved to France and then to United States in and obtained American citizenship — Foreign national’s parents were exposed as unregis- tered agents of foreign government taking direction from and being paid by Rus- sian Foreign Intelligence Service (SVR), collecting intelligence for SVR — In 2010 parents were returned to Russia via spy swap — American government re- voked foreign national’s passport and American citizenship and foreign national went to Russia where he was issued Russian passport and birth certificate — Foreign national subsequently attempted to obtain Canadian passport after amending Ontario birth certificate to parents’ true identities — Foreign national obtained Certificate of Canadian Citizenship — Registrar subsequently can- celled certificate on ground that foreign national’s parents were not lawfully Ca- nadian citizens or permanent residents and were employees or representatives of foreign government for purposes of s. 3(2)(a) of Citizenship Act — Foreign na- tional brought application for judicial review of Registrar’s decision — Applica- tion dismissed — Anyone who moved to Canada with explicit goal of establish- ing life to further foreign intelligence operation, be it in this country or any other, was doing so in service of or as employee or representative of, foreign government — Registrar correctly found that this scenario was captured by s. 3(2)(a) of Citizenship Act. Cases considered by B. Richard Bell J.: Baker v. Canada (Minister of Citizenship & Immigration) (1999), [1999] S.C.J. No. 39, 174 D.L.R. (4th) 193, 1999 CarswellNat 1124, 1999 CarswellNat 1125, 243 N.R. 22, 1 Imm. L.R. (3d) 1, 14 Admin. L.R. (3d) 173, [1999] 2 S.C.R. 817, [1999] F.C.J. No. 39 (S.C.C.) — referred to C.U.P.E. v. Ontario (Minister of Labour) (2003), 2003 SCC 29, 2003 Carswell- Ont 1770, 2003 CarswellOnt 1803, 2003 C.L.L.C. 220-040, [2003] S.C.J. No. 28, (sub nom. Canadian Union of Public Employees v. Ontario (Minister of Labour)) 304 N.R. 76, 50 Admin. L.R. (3d) 1, 226 D.L.R. (4th) 193, (sub nom. Canadian Union of Public Employees v. Ontario (Minister of Labour)) 173 O.A.C. 38, [2003] 1 S.C.R. 539, (sub nom. Canadian Union of 112 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

Public Employees v. Ontario (Minister of Labour)) 66 O.R. (3d) 735 (note), REJB 2003-41592, 2003 CSC 29 (S.C.C.) — referred to Kandola (Guardian at Law) v. Canada (Minister of Citizenship and Immigra- tion) (2014), 2014 FCA 85, 2014 CarswellNat 810, (sub nom. Kandola v. Canada (Minister of Citizenship and Immigration)) 456 N.R. 115, 24 Imm. L.R. (4th) 175, 372 D.L.R. (4th) 342, [2014] F.C.J. No. 322, 2014 CAF 85, 2014 CarswellNat 5332, (sub nom. Kandola v. Canada (Citizenship and Im- migration)) [2015] 1 F.C.R. 549 (F.C.A.) — referred to Khela v. Mission Institution (2014), 2014 SCC 24, 2014 CarswellBC 778, 2014 CarswellBC 779, [2014] S.C.J. No. 24, 368 D.L.R. (4th) 630, 64 Admin. L.R. (5th) 171, 9 C.R. (7th) 1, 455 N.R. 279, 307 C.C.C. (3d) 427, 2014 CSC 24, (sub nom. Khela v. Mission Institution (Warden)) 599 W.A.C. 91, (sub nom. Mission Institution v. Khela) [2014] 1 S.C.R. 502, (sub nom. Mission Institution v. Khela) 306 C.R.R. (2d) 66, (sub nom. Khela v. Mission Institution (Warden)) 351 B.C.A.C. 91 (S.C.C.) — referred to Kinsel v. Canada (Minister of Citizenship and Immigration) (2014), 2014 Car- swellNat 1567, 2014 FCA 126, 25 Imm. L.R. (4th) 192, 459 N.R. 116, 73 Admin. L.R. (5th) 277, [2014] F.C.J. No. 781 (F.C.A.) — referred to Nadarasa v. Canada (Minister of Citizenship & Immigration) (2009), 2009 FC 1112, 2009 CarswellNat 3458, 2009 CF 1112, 2009 CarswellNat 4827, [2009] F.C.J. No. 1350, [2009] A.C.F. No. 1350 (F.C.) — followed New Brunswick (Board of Management) v. Dunsmuir (2008), 2008 SCC 9, 2008 CarswellNB 124, 2008 CarswellNB 125, D.T.E. 2008T-223, [2008] S.C.J. No. 9, (sub nom. Dunsmuir v. New Brunswick) 2008 C.L.L.C. 220-020, 64 C.C.E.L. (3d) 1, 69 Imm. L.R. (3d) 1, 69 Admin. L.R. (4th) 1, 372 N.R. 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] A.C.S. No. 9, 329 N.B.R. (2d) 1, (sub nom. Dunsmuir v. New Brunswick) [2008] 1 S.C.R. 190, 844 A.P.R. 1, (sub nom. Dunsmuir v. New Brunswick) 95 L.C.R. 65, 2008 CSC 9 (S.C.C.) — followed Zhang v. Canada (Minister of Citizenship and Immigration) (2015), 2015 FC 463, 2015 CarswellNat 1008, 2015 CF 463, 2015 CarswellNat 3780 (F.C.) — followed Statutes considered: Access to Information Act, R.S.C. 1985, c. A-1 Generally — referred to Citizenship Act, R.S.C. 1985, c. C-29 s. 3(1)(a) — considered s. 3(2)(a) — considered Vavilov v. Canada (MCI) B. Richard Bell J. 113

Words and phrases considered: other representative or employee of a foreign government in Canada [Other representative or employee of a foreign government in Canada in s. 3(2)(a) of the Citizenship Act] must include representatives and employees in Canada of foreign governments, regardless of diplomatic or consular status. To find otherwise would render the words “other representative or employee in Canada” meaningless. ... The wording is clearly meant to cover individuals who are in Canada as agents of a foreign government, whatever their mandate . . . Anyone who moves to this country with the explicit goal of establishing a life to further a foreign intelli- gence operation, be it in this country or any other, is clearly doing so in the service of (French version), or as an employee or representative of, a foreign government.

APPLICATION by foreign national for judicial review of decision of Registrar of Citizenship.

Hadayt Nazami, Ronald Poultan, for Applicant A. Leena Jaakkimainen, K. Alam, for Respondent

B. Richard Bell J.: I. Summary 1 This is a judicial review of the decision of the Registrar of Citizen- ship (Registrar) communicated to Alexander Vavilov on August 15, 2014, in which the Registrar revoked Mr. Vavilov’s citizenship pursuant to paragraph 3(2)(a) of the Citizenship Act, RSC 1985, c C-29. The Reg- istrar based his decision upon the fact that Mr. Vavilov’s parents were employees of a foreign government and not lawful Canadian citizens at the time of his birth. Mr. Vavilov challenges the Registrar’s decision on a number of grounds. For the reasons set out below I am of the view the Registrar’s factual conclusions meet the test of reasonableness contem- plated by the Court in New Brunswick (Board of Management) v. Dun- smuir, 2008 SCC 9, [2008] 1 S.C.R. 190 (S.C.C.) [Dunsmuir], and his interpretation of the law is correct. For those reasons, I would dismiss the judicial review application. 114 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

II. Facts A. Background 2 The Applicant, Alexander Vavilov was born in Canada on June 3rd, 1994. Mr. Vavilov has a brother approximately 3 years his senior. Their parents, Andrey Bezrukov and Elena Vavilova entered Canada from Rus- sia some time prior to the birth of their children, and assumed the identi- ties of two deceased Canadians. The exact date of entry is unknown. The Canadian government issued passports to them under their assumed iden- tities. It is not disputed that those identity documents were obtained fraudulently. 3 While Mr. Vavilov’s parents were living in Canada, both completed post-secondary education and were employed under their assumed identi- ties. When the children were born, Ms. Vavilova became a stay-at-home mother and Mr. Bezrukov continued to run a successful business. In 1995, Mr. Bezrukov undertook post-secondary study in France. The fam- ily left Canada to take up residence in France. The children were 1 and 4 years old, respectively, at that time. It is also the last time any member of the family resided in Canada. The family lived in France until August of 1999, after which they moved to Boston, Massachusetts where Mr. Bezrukov began studies at Harvard’s John F. Kennedy School of Government. 4 While in Boston, Mr. Vavilov’s parents became naturalized American citizens under their assumed Canadian identities. After their naturaliza- tion, their sons obtained American citizenship. There is little other infor- mation in the record about Mr. Vavilov’s life until June 1st, 2010 when agents of the United States (US) Federal Bureau of Investigation entered the family home and arrested his parents. Both parents were charged with one count of conspiracy to act as unregistered agents of a foreign govern- ment and two counts of conspiracy to commit money laundering. 5 The charges related to operations referred to in the United States as the ‘illegals’ program. This constitutes a subversive program whereby foreign nationals, with the assistance of their governments, assume iden- tities and live in the United States while performing ‘deep cover’ foreign intelligence assignments. After undergoing extensive training in their own country, in this case, Russia, these agents work to obscure any ties between themselves and their true identities. They establish seemingly legitimate alternative lives, referred to as ‘legends’, all the while taking direction from the Russian Foreign Intelligence (SVR) service. Accord- ing to the charging documents, Mr. Vavilov’s parents were known to be Vavilov v. Canada (MCI) B. Richard Bell J. 115

part of this program since the early 1990s, and were collecting intelli- gence for the SVR, who paid for their services. On July 8, 2010, Mr. Vavilov’s parents pled guilty to the conspiracy charge and were returned to Russia in a spy swap the next day. 6 Mr. Vavilov and his brother used their Canadian passports to fly to Russia on July 5th, 2010. The American government revoked Mr. Vavilov’s passport and American citizenship and, on December 10, 2010, he and his brother were issued Russian passports and birth certifi- cates. Mr. Vavilov has renewed his Russian passport on at least one occasion.

B. Procedural History 7 In 2010 and 2011, Mr. Vavilov made two unsuccessful attempts to obtain a Canadian passport. In June of 2012, he applied for a Canadian student visa, which was issued and then cancelled in August of the same year as a result of security, identity, and citizenship concerns regarding Mr. Vavilov and his family. 8 Mr. Vavilov and his brother officially changed their surnames to Vavilov after Canadian officials informed the brother that new passport applications would not be granted if they relied on their parents’ assumed identities. Mr. Vavilov obtained an amended Ontario birth certificate on December 1, 2011, setting out his name as Alexander Philip Anthony Vavilov, and his parents’ true names and places of birth. Based on this amended birth certificate, he applied for and, on January 15, 2013, ob- tained a Certificate of Canadian Citizenship (the Certificate). In his ap- plication for the Certificate, Mr. Vavilov stated that his parents were not employed by a foreign government or international agency at the time of his birth. 9 With the new birth and citizenship certificates, Mr. Vavilov applied for an extension of his Canadian passport. When the Canadian govern- ment did not issue the passport in a timely manner, Mr. Vavilov com- menced an application for mandamus in the Federal Court. That applica- tion was discontinued on agreement between the parties that a decision would issue by July 19, 2013. 10 On July 18, 2013, the Registrar wrote to Mr. Vavilov (the fairness letter). Instead of providing him with a decision regarding his passport application, the Registrar informed him there was reason to believe the Certificate had been issued in error. The Registrar informed Mr. Vavilov he had reason to believe his parents were granted citizenship under as- 116 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

sumed identities and were employees of the SVR while in Canada. In the fairness letter the Registrar cited paragraph 3(2)(a) of the Citizenship Act and invited Mr. Vavilov to provide “any information” that would address the Registrar’s concerns within 30 days of the date of the letter. The Reg- istrar extended the deadline to accommodate requests for information by Mr. Vavilov pursuant to the Access to Information Act, RSC, 1985, c A- 1. 11 One of the requests for information resulted in some dispute between the parties. That dispute forms one of the grounds for relief on this judi- cial review application. Briefly, one of the documents disclosed to the Applicant shows that the Case Management Officer assigned to this mat- ter asked the Foreign Affairs Protocol Office for an opinion on Mr. Vavilov’s status. That office stated it could not provide an opinion be- cause Mr. Vavilov’s parents did not have diplomatic, consular, or other official status. Mr. Vavilov enquired as to why the opinion was sought and, furthermore, asked that the person who had requested the opinion recuse herself from any further involvement in the matter, she apparently having prejudged the issue. The Respondent counters that the opinion was not necessary as it was outside the mandate of the Department of Foreign Affairs and International Trade and, in any event, no opinion was provided. The Respondent claims there is simply no issue to be ad- dressed as a result of this disclosure. I agree with the position advanced by the Respondent. I am of the view there is no merit to the bias allega- tion raised by Mr. Vavilov. Officials are entitled to ask questions and seek opinions in the course of performing their duties without worrying about the spectre of a bias allegation. Nothing more will be said regard- ing this issue in the course of these reasons. 12 On August 15, 2014, the Registrar informed Mr. Vavilov his Certifi- cate was cancelled as of that date and that the Canadian government no longer “recognizes” him as a “citizen of Canada” and that he “no longer holds legal status” in Canada. The Registrar relied upon the same reasons as communicated in the fairness letter — his parents were not lawfully Canadian citizens or permanent residents at the time of his birth, and furthermore, they were, at the time of his birth, “employees or represent- atives of a foreign government” for the purposes of paragraph 3(2)(a) of the Citizenship Act.

III. Issues 13 The following issues are raised on this judicial review: Vavilov v. Canada (MCI) B. Richard Bell J. 117

1. Was there a breach of fairness with regard to disclosure of docu- ments to the Applicant? 2. Did the Registrar err in interpreting paragraph 3(2)(a) of the Citi- zenship Act? 3. Was the decision of the Registrar reasonable on the evidence before it?

IV. Relevant Provisions 14 For convenience, ss. 3(1)(a) and 3(2)(a) of the Citizenship Act are reproduced below: Persons who are citizens 3. (1) Subject to this Act, a person is a citizen if (a) the person was born in Canada after February 14, 1977; ... Not applicable to children of foreign diplomats, etc. (2) Paragraph (1)(a) does not apply to a person if, at the time of his birth, neither of his parents was a citizen or lawfully admitted to Can- ada for permanent residence and either of his parents was (a) a diplomatic or consular officer or other representative or em- ployee in Canada of a foreign government; Citoyens 3. (1) Sous r´eserve des autres dispositions de la pr´esente loi, a qualit´e de citoyen toute personne: a) n´ee au Canada apr`es le 14 f´evrier 1977; [...] Inapplicabilit´e aux enfants de diplomates etrangers,´ etc. (2) L’alin´ea (1)a) ne s’applique pas a` la personne dont, au moment de la naissance, les parents n’avaient qualit´e ni de citoyens ni de r´e- sidents permanents et dont le p`ere ou la m`ere etait:´ a) agent diplomatique ou consulaire, repr´esentant a` un autre titre ou au service au Canada d’un gouvernement etranger;´

V. Analysis A. Standard of Review 15 It is settled law that issues of procedural fairness are reviewed on the standard of correctness (See: C.U.P.E. v. Ontario (Minister of Labour), 2003 SCC 29, [2003] 1 S.C.R. 539 (S.C.C.); Khela v. Mission Institution, 118 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

2014 SCC 24, [2014] 1 S.C.R. 502 (S.C.C.)). It follows that the duty to disclose will be determined on this standard. 16 Mr. Vavilov does not make submissions on the appropriate standard of review to be applied to the Registrar’s interpretation of s. 3(2)(a). The Respondent makes lengthy submissions on the matter and arrives at the conclusion that reasonableness should apply. I respectfully disagree. I am of the view the interpretation of s. 3(2)(a) of the Citizenship Act is a question of law of general application across Canada and raises a pure question of statutory interpretation. Furthermore, no privative clause is engaged and the statutory scheme does not offer any basis upon which it can be said that the Registrar possesses any greater expertise than the courts in interpreting the impugned section. (See: Dunsmuir, above; Kandola (Guardian at Law) v. Canada (Minister of Citizenship and Im- migration), 2014 FCA 85, [2014] F.C.J. No. 322 (F.C.A.); and Kinsel v. Canada (Minister of Citizenship and Immigration), 2014 FCA 126, [2014] F.C.J. No. 781 (F.C.A.)). 17 Finally, the application of paragraph 3(2)(a) of the Citizenship Act to the facts raises an issue of mixed fact and law, and will attract a standard of reasonableness: Dunsmuir, above, at para 47.

B. Procedural Fairness 18 Mr. Vavilov contends the Registrar breached its duty of fairness owed to him by failing to disclose the documentation which prompted the first procedural fairness letter. He contends the content of the letter was insuf- ficient to allow him to address the concerns about his citizenship. The Registrar acknowledges he had a duty to allow Mr. Vavilov to respond, but contends the procedure adopted meets any duty of fairness required by Baker v. Canada (Minister of Citizenship & Immigration), [1999] 2 S.C.R. 817, [1999] S.C.J. No. 39 (S.C.C.). 19 I agree with the Respondent’s contention. In this case, the threshold for procedural fairness is not at the upper end given that Mr. Vavilov is a citizen of Russia, travels on a Russian passport, and would not have been rendered stateless regardless of the outcome of the enquiry. Although perhaps of limited relevance on the issue of the procedural fairness threshold, I would note that Mr. Vavilov has not spent any time in Can- ada since he was an infant. There is no requirement that the Registrar provide the Applicant with the complete documentation which formed the basis of his concerns. Although raised in the context of a visa appli- cation, the observations of Justice de Montigny of this Court (as he then Vavilov v. Canada (MCI) B. Richard Bell J. 119

was) in Nadarasa v. Canada (Minister of Citizenship & Immigration), 2009 FC 1112, [2009] F.C.J. No. 1350 (F.C.), recently followed by Barnes J. in Zhang v. Canada (Minister of Citizenship and Immigration), 2015 FC 463, 252 A.C.W.S. (3d) 778 (F.C.), are helpful in the present analysis: [25] But contrary to the applicant’s submission, the jurisprudence of this Court is not to the effect that an applicant must actually be given the document relied upon by the decision-maker, but that the infor- mation contained in that document be disclosed to the applicant so that he or she has an opportunity to know and respond to the case against him or her. The following quote from Justice Rothstein (then from this Court) in Dasent v. Canada (Minister of Citizenship & Im- migration) (1994), [1995] 1 F.C. 720 (Fed. T.D.), at para. 23, is illus- trative of that principle: The relevant point as I see it is whether the applicant had knowledge of the information so that he or she had the opportunity to correct prejudicial misunderstandings or misstatements. The source of the information is not of it- self a differentiating matter as long as it is not known to the applicant. The question is whether the applicant had the opportunity of dealing with the evidence. This is what the long-established authorities indicate the rules of pro- cedural fairness require. In the well known words of Lord Loreburn L.C. in Board of Education v. Rice, [1911] A.C.179 (H.L.) at page 182: They can obtain information in any way they think best, always giving a fair opportunity to those who are parties in the controversy for correcting or contradicting any rele- vant statement prejudicial to their view. 20 In this case, the Registrar informed Mr. Vavilov, via the procedural fairness letter, of his concerns in a manner that allowed for a meaningful response. The Registrar specifically set out the issues concerning the fraudulent identification used by Mr. Vavilov’s parents to obtain citizen- ship and his concerns about their status as employees or representatives of a foreign government at the time of his birth. Furthermore, when Mr. Vavilov’s counsel sought additional information, that information was provided by the Registrar. In my view, the procedure adopted by the Registrar met the requirements of procedural fairness. 120 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

C. Interpretation of s. 3(2)(a) 21 Mr. Vavilov’s parents were in Canada under assumed identities at the time of his birth. He acknowledges their Canadian passports were ob- tained by fraud. However, he contends his parents were “lawfully admit- ted to Canada” and are Canadian citizens because the fraudulently ob- tained documents were never revoked by the Minister of Citizenship and Immigration. The argument is devoid of any merit and to give it any credence by further analysis would be an affront to all those who attempt to come to this country lawfully and obtain valid Canadian citizenship. Because his parents were not Canadian citizens, if Mr. Vavilov’s claim to Canadian citizenship is to succeed, it must be based upon his birth in Canada. 22 The question to be answered, on the correctness standard, is whether the Registrar erred in finding that individuals living in Canada under an assumed identity and working to establish ‘deep cover’ operations in or- der to collect intelligence for a foreign government, are included in the definition of “a diplomatic or consular officer or other representative or employee in Canada of a foreign government” as contemplated by s. 3(2)(a) of the Citizenship Act. For the reasons that follow, I find the Reg- istrar did not err. 23 If one reads s. 3(2)(a) in a contextual and purposive manner, taking the plain meaning of the words, it must include representatives and em- ployees in Canada of foreign governments, regardless of diplomatic or consular status. To find otherwise would render the words “other repre- sentative or employee in Canada” meaningless. This would be inconsis- tent with any reasoned approach to statutory interpretation, and offends the rule that Parliament intends each word in a statute to have meaning (See: Ruth Sullivan, Statutory Interpretation, 2nd ed., (Irwin Law Inc. 2007, at 184 [Sullivan]). This rule flows from the assumption that the legislator avoids tautology. 24 The question which remains is whether those who establish them- selves, at the behest of a foreign government, for the purposes of gather- ing intelligence for that foreign government constitute “representatives or employees”. The fact the section refers to both employees and represent- atives is telling. My view is re-enforced by the French version which speaks even more broadly about those “repr´esentant a` un autre titre ou au service au Canada d’un gouvernement etranger”.´ The wording is clearly meant to cover individuals who are in Canada as agents of a foreign gov- ernment, whatever their mandate. In this case, the task was to steal iden- Vavilov v. Canada (MCI) B. Richard Bell J. 121

tities, obtain fraudulent citizenship and, with the benefit of that citizen- ship, further the fraud on one of our closest allies — the purpose of the fraud being to obtain intelligence and provide information to the Russian government. Anyone who moves to this country with the explicit goal of establishing a life to further a foreign intelligence operation, be it in this country or any other, is clearly doing so in the service of (French ver- sion), or as an employee or representative of, a foreign government. 25 In my view the Registrar correctly found that this scenario is captured by s. 3(2)(a) of the Citizenship Act. To conclude otherwise would lead to the absurd result that children of a foreign diplomat, registered at an em- bassy, who conducts spy operations, cannot claim Canadian citizenship by birth in Canada but children of those who enter unlawfully for the very same purpose, become Canadian citizens by birth. The proper appli- cation of the rules of statutory interpretation should not lead to absurd results (See: Sullivan, above, at 209).

D. Reasonableness 26 The final issue for determination is whether it was reasonable for the Registrar to conclude that Mr. Vavilov’s parents were in Canada as part of their SVR operation for the Russian government. For the reasons that follow, I find that it was. 27 I find there was sufficient evidence, when considering the arrest and conviction records and use of false identities by Mr. Vavilov’s parents, for the Registrar to conclude they were “illegals” working on a deep cover assignment for the SVR, while in Canada. In addition to the public record, the information contained in the internal analyst’s report is in- structive in that it speaks to the long term pattern one would expect to see from an illegal. This includes pursuing higher education and legitimate employment in a host country, in this case Canada, to establish a “leg- end” that becomes increasingly documented and plausible. The legend becomes so authentic that it appears to be reality. In the report to the Registrar, which was disclosed to Mr. Vavilov, the analyst states: Open-source information indicates that the SVR tasked Mr. Bezrukov with collecting intelligence from U.S. officials on topics related to U.S. foreign policy on a variety of topics related to America’s position on Central Asia, Russia, and a variety of national security issues (including the nuclear non-proliferation, the U.S. po- sition on Iran’s nuclear weapons program, and the U.S. foreign pol- icy objectives in Afghanistan). 122 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

Considering Mr. Bezrukov’s objectives, it is reasonable to believe that his pursuit of undergraduate (i.e.: Bachelor degree at York Uni- versity in Toronto, Canada) and graduate degrees in the fields of in- ternational business and public administration both enhance the strength of his legend. 28 The record contains no contradictory evidence. It was open to the Registrar to accept this report, which he reasonably did. I am satisfied the Registrar’s decision on the facts falls within the range of possible, ac- ceptable outcomes as contemplated by Dunsmuir, above, at para 47.

VI. Conclusion 29 Mr. Vavilov does not dispute his parents’ status as illegals in the United States, nor does he dispute that their Canadian citizenship and passports were obtained by fraud. There is adequate evidence on the re- cord to reasonably conclude that his parents’ presence in Canada consti- tuted part of their SVR mission for the Russian government. This ena- bled them to establish their legend. 30 The application for judicial review is dismissed. 31 I would certify the following questions of general importance: 1. What is the standard of review applicable to the determination of whether Mr. Vavilov is not a Canadian citizen by reason of the application of paragraph 3(2)(a) of the Citizenship Act? 2. Are the words “other representative or employee of a foreign gov- ernment in Canada” found in paragraph 3(2)(a) of the Citizenship Act limited to foreign nationals who benefit from diplomatic privi- leges and immunities?

Judgment THIS COURT’S JUDGMENT is that: 1. The application for judicial review is dismissed. 2. The following questions of general importance are certified: 1. What is the standard of review applicable to the determina- tion of whether Mr. Vavilov is not a Canadian citizen by reason of the application of paragraph 3(2)(a) of the Citi- zenship Act? 2. Are the words “other representative or employee of a for- eign government in Canada” found in paragraph 3(2)(a) of Vavilov v. Canada (MCI) B. Richard Bell J. 123

the Citizenship Act limited to foreign nationals who benefit from diplomatic privileges and immunities? Application dismissed. 124 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

[Indexed as: Tisson v. Canada (Minister of Citizenship and Immigration)] Tessa Tisson, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-3768-14 2015 FC 944, 2015 CF 944 Simon Fothergill J. Heard: June 10, 2015 Judgment: August 6, 2015 Immigration and citizenship –––– Admission — Application for temporary resident or immigrant visa — Inland applications — Application of human- itarian and compassionate considerations — Miscellaneous –––– Permanent residence — Applicant, citizen of St. Lucia, entered Canada in 2000 — She overstayed her visa and was arrested — Her application for exemption to permit her to apply for permanent residence from within Canada on humanitarian and compassionate (H&C) grounds was refused and she was deported — Applicant re-entered Canada in 2006 using valid passport issued under different surname and began common law relationship with father of her two Canadian-born chil- dren — Daughter suffered from craniofrontonasal dysplasia — Father became physically abusive and abandoned relationship — In 2014, immigration officer rejected applicant’s second H&C application for permanent residence from within Canada — Officer conceded that it was probably in best interests of chil- dren that they remain in Canada, but concluded that applicant had not submitted her H&C application with “clean hands” and put “considerable weight” on her bad faith and lack of candour — Applicant applied for judicial review pursuant to s. 72 of Immigration and Refugee Protection Act — Application granted — Officer did not apply correct legal test in assessing best interests of children, nor was his analysis reasonable — Officer improperly focused on level of hardship that daughter would experience if she were removed to St. Lucia — It was nec- essary for his analysis to address “unique and personal consequences” that re- moval from Canada would have for children — Several consequences of re- moval were not fully considered — Officer breached applicant’s right to procedural fairness by improperly relying on extrinsic evidence to assess daugh- ter’s medical condition — His reliance on results of Internet search that were not disclosed to applicant denied her opportunity to address information and breached her right to procedural fairness. Tisson v. Canada (MCI) 125

Immigration and citizenship –––– Admission — Application for temporary resident or immigrant visa — Inland applications — Procedure –––– Perma- nent residence — Applicant, citizen of St. Lucia, entered Canada in 2000 — She overstayed her visa and was arrested — Her application for exemption to permit her to apply for permanent residence from within Canada on humanitarian and compassionate (H&C) grounds was refused and she was deported — Applicant re-entered Canada in 2006 using valid passport issued under different surname and began common law relationship with father of her two Canadian-born chil- dren — Daughter suffered from craniofrontonasal dysplasia — Father became physically abusive and abandoned relationship — In 2014, immigration officer rejected applicant’s second H&C application for permanent residence from within Canada — Officer conceded that it was probably in best interests of chil- dren that they remain in Canada, but concluded that applicant had not submitted her H&C application with “clean hands” and put “considerable weight” on her bad faith and lack of candour — Applicant applied for judicial review pursuant to s. 72 of Immigration and Refugee Protection Act — Application granted — Officer did not apply correct legal test in assessing best interests of children, nor was his analysis reasonable — Officer improperly focused on level of hardship that daughter would experience if she were removed to St. Lucia — It was nec- essary for his analysis to address “unique and personal consequences” that re- moval from Canada would have for children — Several consequences of re- moval were not fully considered — Officer breached applicant’s right to procedural fairness by improperly relying on extrinsic evidence to assess daugh- ter’s medical condition — His reliance on results of Internet search that were not disclosed to applicant denied her opportunity to address information and breached her right to procedural fairness. Cases considered by Simon Fothergill J.: Adewole c. Canada (Ministre de la Citoyennet´e et de l’Immigration) (2014), 2014 CF 112, 2014 CarswellNat 207, 2014 FC 112, 2014 CarswellNat 770, (sub nom. Adewole v. Canada (Minister of Citizenship and Immigration)) 447 F.T.R. 156 (Eng.) (F.C.) — referred to Ali v. Canada (Minister of Citizenship and Immigration) (2014), 2014 FC 469, 2014 CarswellNat 1680, 2014 CF 469, 2014 CarswellNat 2251, 454 F.T.R. 310 (F.C.) — referred to Arulraj v. Canada (Minister of Citizenship & Immigration) (2006), 2006 FC 529, 2006 CarswellNat 1106, 2006 CF 529, 2006 CarswellNat 3740, [2006] F.C.J. No. 672 (F.C.) — referred to Baker v. Canada (Minister of Citizenship & Immigration) (1999), [1999] S.C.J. No. 39, 174 D.L.R. (4th) 193, 1999 CarswellNat 1124, 1999 CarswellNat 1125, 243 N.R. 22, 1 Imm. L.R. (3d) 1, 14 Admin. L.R. (3d) 173, [1999] 2 S.C.R. 817, [1999] F.C.J. No. 39 (S.C.C.) — referred to 126 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

Begum v. Canada (Minister of Citizenship and Immigration) (2013), 2013 FC 824, 2013 CarswellNat 2920, 2013 CF 824, 2013 CarswellNat 3534 (F.C.) — referred to Chandidas v. Canada (Minister of Citizenship and Immigration) (2013), 2013 FC 258, 2013 CarswellNat 505, 2013 CF 258, 2013 CarswellNat 1765, 16 Imm. L.R. (4th) 78, 429 F.T.R. 55 (Eng.), [2014] 3 F.C.R. 639 (F.C.) — referred to Forest Ethics Advocacy Assn. v. National Energy Board (2014), 2014 FCA 245, 2014 CarswellNat 4233, 465 N.R. 152, 2014 CAF 245, 2014 CarswellNat 6533 (F.C.A.) — referred to Hawthorne v. Canada (Minister of Citizenship & Immigration) (2002), 2002 FCA 475, 2002 CarswellNat 3444, 24 Imm. L.R. (3d) 34, 2002 CAF 475, 2002 CarswellNat 4276, 297 N.R. 187, [2002] F.C.J. No. 1687, 222 D.L.R. (4th) 265, [2003] 2 F.C. 555, 235 F.T.R. 158 (note) (Fed. C.A.) — considered Judnarine v. Canada (Minister of Citizenship and Immigration) (2013), 2013 FC 82, 2013 CarswellNat 107, 2013 CF 82, 2013 CarswellNat 475, 425 F.T.R. 312 (Eng.) (F.C.) — referred to Khosa v. Canada (Minister of Citizenship & Immigration) (2009), 2009 SCC 12, 2009 CarswellNat 434, 2009 CarswellNat 435, 82 Admin. L.R. (4th) 1, [2009] S.C.J. No. 12, 77 Imm. L.R. (3d) 1, 385 N.R. 206, 304 D.L.R. (4th) 1, (sub nom. Canada (Citizenship & Immigration) v. Khosa) [2009] 1 S.C.R. 339 (S.C.C.) — referred to Kisana v. Canada (Minister of Citizenship & Immigration) (2009), 2009 FCA 189, 2009 CarswellNat 1626, [2009] F.C.J. No. 713, 2009 CAF 189, 2009 CarswellNat 4008, 392 N.R. 163, [2010] 1 F.C.R. 360 (F.C.A.) — referred to Kolosovs v. Canada (Minister of Citizenship & Immigration) (2008), 2008 FC 165, 2008 CarswellNat 281, 2008 CF 165, 2008 CarswellNat 745, 323 F.T.R. 181 (Eng.), [2008] F.C.J. No. 211 (F.C.) — referred to Lopez Arteaga v. Canada (Minister of Citizenship and Immigration) (2013), 2013 FC 778, 2013 CarswellNat 2416, 2013 CF 778, 2013 CarswellNat 4269, (sub nom. Arteaga v. Canada (Minister of Citizenship and Immigra- tion)) 436 F.T.R. 281 (Eng.) (F.C.) — referred to Mandi v. Canada (Minister of Citizenship and Immigration) (2014), 2014 FC 257, 2014 CarswellNat 630, 2014 CF 257, 2014 CarswellNat 1254, 24 Imm. L.R. (4th) 248 (F.C.) — referred to Mangru v. Canada (Minister of Citizenship & Immigration) (2011), 2011 FC 779, 2011 CarswellNat 3296, 2011 CF 779, 2011 CarswellNat 2443, 2 Imm. L.R. (4th) 105, [2011] F.C.J. No. 978, [2011] A.C.F. No. 978, 392 F.T.R. 333 (Eng.) (F.C.) — referred to Re:Sound v. Fitness Industry Council of Canada (2014), 2014 FCA 48, 2014 CarswellNat 395, 455 N.R. 87, 2014 CAF 48, 2014 CarswellNat 2858, 120 Tisson v. Canada (MCI) Simon Fothergill J. 127

C.P.R. (4th) 287, [2014] F.C.J. No. 215, 72 Admin. L.R. (5th) 1, [2015] 2 F.C.R. 170 (F.C.A.) — referred to Webb v. Canada (Minister of Citizenship and Immigration) (2012), 2012 FC 1060, 2012 CarswellNat 3387, 2012 CF 1060, 2012 CarswellNat 4142, [2012] F.C.J. No. 1147, [2012] A.C.F. No. 1147, 417 F.T.R. 306 (Eng.) (F.C.) — referred to Weng (Litigation guardian of) v. Canada (Minister of Citizenship and Immigra- tion) (2014), 2014 FC 778, 2014 CarswellNat 3016, 2014 CarswellNat 3673, 29 Imm. L.R. (4th) 152 (F.C.) — referred to Williams v. Canada (Minister of Citizenship & Immigration) (2012), 2012 FC 166, 2012 CarswellNat 382, 2012 CF 166, 2012 CarswellNat 1330, [2012] F.C.J. No. 184 (F.C.) — followed Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 25(1) — considered s. 72 — pursuant to

APPLICATION for judicial review of decision of immigration officer, refusing applicant’s request to apply for permanent residence from within Canada on hu- manitarian and compassionate grounds.

Leigh Salsberg, for Applicant Ada Mok, for Respondent

Simon Fothergill J.: I. Introduction 1 Tessa Tisson has brought an application for judicial review pursuant to s 72 of the Immigration and Refugee Protection Act, SC 2001, c 27 [the IRPA]. She challenges the decision of an immigration officer [the Officer] to refuse her request to apply for permanent residence from within Canada on humanitarian and compassionate [H&C] grounds in accordance with s 25(1) of the IRPA. 2 For the reasons that follow, I have concluded that the Officer did not apply the correct legal test in assessing the best interests of Ms. Tisson’s children. In addition, the Officer breached Ms. Tisson’s right to procedu- ral fairness by improperly relying on extrinsic evidence to assess her daughter’s medical condition. 3 The application for judicial review is therefore allowed and the matter is remitted to a different immigration officer for re-determination. 128 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

II. Background 4 Ms. Tisson is a citizen of St. Lucia. She has two Canadian-born chil- dren: a seven year-old son and a five year-old daughter. Ms. Tisson’s daughter was born with a genetic condition known as “craniofrontonasal dysplasia,” which can result in physical malformation of the head. 5 Ms. Tisson alleges that she experienced sexual abuse at the hands of various family members throughout her childhood and into her teens. She states that prior to leaving St. Lucia she had no safe or permanent place to live. 6 Ms. Tisson first entered Canada in March, 2000. She met the father of her children, who is a Canadian citizen, in 2002. Ms. Tisson overstayed her visa and was arrested in February, 2003 because she was in Canada without status and was working without authorization. Ms. Tisson ap- plied for a Pre-Removal Risk Assessment [PRRA] which resulted in an adverse decision in December, 2003. She did not seek leave to challenge the decision in this Court and she did not appear for her scheduled re- moval in January, 2004. 7 Ms. Tisson was arrested again in November, 2005. She then made her first application for an exemption to permit her to apply for permanent residence from within Canada on H&C grounds. The first application was refused in November, 2005. Ms. Tisson did not seek leave to chal- lenge the decision in this Court and she was deported to St. Lucia. 8 Ms. Tisson entered Canada for a second time in December, 2006, us- ing a valid passport issued under a different surname. Ms. Tisson then began a common-law relationship with the father of her children. In 2008, Ms. Tisson gave birth to her son. In 2010, she gave birth to her daughter. The father of her children became physically abusive when Ms. Tisson was pregnant with her second child. He abandoned the relation- ship in 2013 when Ms. Tisson threatened to call the police. Ms. Tisson alleges that her former common-law partner had previously offered to sponsor her for permanent residence, but no application was ever made. 9 Ms. Tisson made a second H&C application in February, 2014, which was rejected on April 8, 2014. This decision is the subject of the present application for judicial review.

III. The Officer’s Decision 10 In his decision, the Officer first addressed the best interests of Ms. Tisson’s two children. While observing that they were unlikely to “suffer Tisson v. Canada (MCI) Simon Fothergill J. 129

unduly” if they lived in St. Lucia, the Officer conceded that it was “prob- ably in the children’s best interests that they remain in Canada, where services and standards of living are higher than would likely be for them in St. Lucia.” The Officer found this to be a positive factor in his consid- eration of Ms. Tisson’s H&C application, but he nevertheless concluded that “this is not an important factor in this case.” 11 The Officer then described Ms. Tisson’s deceitful behaviour and the lack of candour in her interactions with Canadian immigration authori- ties. In particular, the Officer noted that Ms. Tisson had twice stayed beyond the period that was authorized upon her entry into Canada, that she had failed to report for removal, that she had worked without authori- zation, and that she had disguised her identity upon her return to Canada. The Officer concluded that Ms. Tisson had not submitted her H&C appli- cation with “clean hands,” and put “considerable weight on Ms. Tisson’s bad faith and lack of candor.” 12 The Officer also observed that Ms. Tisson appeared to have misrepre- sented her past in St. Lucia. In 2004, Ms. Tisson stated in her first H&C application that she was at risk in St. Lucia because she was a lesbian and the state authorities in St. Lucia would be unable to protect her from persecution. However, in her second H&C application Ms. Tisson did not mention a risk of persecution due to her sexual orientation, and in- stead claimed that the risk she faced was from her former abusers. 13 Given the inconsistency between the two accounts of the risk that Ms. Tisson allegedly faced in St. Lucia, the Officer concluded that one of them must have involved misrepresentation. The Officer reasoned that if the sexual abuse had in fact occurred, then the trauma was not as severe as Ms. Tisson claimed; if it was, then it would have been included in Ms. Tisson’s first H&C application.

IV. Issues 14 Ms. Tisson raised a number of issues in support of her application for judicial review. Only two of them are determinative: A. Whether the Officer applied the correct legal test in assessing the best interests of the children; and B. Whether the Officer breached Ms. Tisson’s right to procedural fairness by relying on extrinsic evidence to assess the medical condition of her daughter. 130 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

V. Analysis A. Whether the Officer applied the correct legal test in assessing the best interests of Ms. Tisson’s children 15 Whether the Officer applied the right legal test in assessing the best interests of the children[BIOC] is a question of law to be reviewed against the standard of correctness (Judnarine v. Canada (Minister of Citizenship and Immigration), 2013 FC 82 (F.C.) at para 15). The Of- ficer’s treatment of the evidence is to be reviewed against the standard of reasonableness (Mandi v. Canada (Minister of Citizenship and Immigra- tion), 2014 FC 257 (F.C.) at para 19). 16 In Williams v. Canada (Minister of Citizenship & Immigration), 2012 FC 166 (F.C.) [Williams ] at para 63, Justice Russell adopted a three-step approach to assessing a child’s best interests: an officer must establish first what those interests are; second, the degree to which the child’s in- terests are compromised by one potential decision over another; and fi- nally, the weight that the child’s interests should be given in the ultimate balancing of the factors to be assessed in the application (see also Chandidas v. Canada (Minister of Citizenship and Immigration), 2013 FC 258 (F.C.)). However, as noted by Justice Mosley in Webb v. Canada (Minister of Citizenship and Immigration), 2012 FC 1060 (F.C.) at para 13, the guidelines proposed in Williams may not readily conform to the circumstances of each case and appellate jurisprudence does not require that immigration officers adhere to a specific formula when assessing the BIOC. Nevertheless, an officer is required to examine the BIOC “with care” and to weigh them against other factors (Kisana v. Canada (Minister of Citizenship & Immigration), 2009 FCA 189 (F.C.A.) at para 24). Ultimately, an officer must be “alert, alive and sensitive” to the BIOC in order to satisfy the correct test (Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 (S.C.C.) at para 75; Kolosovs v. Canada (Minister of Citizenship & Immigration), 2008 FC 165 (F.C.) [Kolosovs ]). 17 In this case, I am not satisfied that the Officer applied the correct legal test to his consideration of the BIOC. Nor was his analysis reasona- ble. According to the Officer’s notes, there “would be some disruption involved and, for [Ms. Tisson’s son], a change in schools and friends.” With respect to Ms. Tisson’s daughter, the Officer acknowledged that her doctor was unaware of any hospitals in St. Lucia that were capable of providing any surgical treatment that may be required. The Officer noted that there were no photos of Ms. Tisson’s daughter included in the appli- Tisson v. Canada (MCI) Simon Fothergill J. 131

cation, and so it was difficult for him to see “how severe the conditions might be for her.” Nevertheless, the Officer concluded that it was not apparent “that surgical care will be required or that she will experience significant problems, should she go [to St. Lucia] and remain without surgical care.” 18 The Officer’s BIOC analysis improperly focused on the level of hard- ship that Ms. Tisson’s daughter would experience if she were removed to St. Lucia, as evidenced by his use of the terms “severe” and “signifi- cant.” Applying a hardship threshold to an analysis of the best interests of the child has repeatedly been found by this Court to be an error of law (Arulraj v. Canada (Minister of Citizenship & Immigration), 2006 FC 529 (F.C.) at para 14; Mangru v. Canada (Minister of Citizenship & Im- migration), 2011 FC 779 (F.C.) at paras 24, 27; Williams at paras 59-62; see also Weng (Litigation guardian of) v. Canada (Minister of Citizenship and Immigration), 2014 FC 778 (F.C.) at para 23). As noted in Williams at para 64, when assessing the BIOC “there is no hardship threshold, such that if the circumstances of the child reach a certain point on that hardship scale only then will a child’s best interests be so signifi- cantly ‘negatively impacted’ as to warrant positive consideration.” 19 In order to demonstrate that the Officer was alert, alive, and sensitive to the BIOC, it was necessary for his analysis to address the “unique and personal consequences” that removal from Canada would have for Ms. Tisson’s children (Ali v. Canada (Minister of Citizenship and Immigra- tion), 2014 FC 469 (F.C.) at para 16). In this case, several consequences of removal do not appear to have been fully considered, including the inadequacy of medical care for Ms. Tisson’s daughter, the lack of social services (on which Ms. Tisson and her children are heavily dependent), and the real risk of homelessness for the children in St. Lucia. 20 As the Federal Court of Appeal held in Hawthorne v. Canada (Minister of Citizenship & Immigration) [2002 CarswellNat 3444 (Fed. C.A.)] at para 52: [52] The requirement that officers’ reasons clearly demonstrate that the best interests of an affected child have received careful attention no doubt imposes an administrative burden. But this is as it should be. Rigorous process requirements are fully justified for the determi- nation of subsection 114(2) [the predecessor to s 25(1) of the IRPA] applications that may adversely affect the welfare of children with the right to reside in Canada: vital interests of the vulnerable are at stake and opportunities for substantive judicial review are limited. 132 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

B. Whether the Officer breached Ms. Tisson’s right to procedural fairness by relying on extrinsic evidence to assess the medical condition of Ms. Tisson’s daughter 21 Questions of procedural fairness and natural justice are reviewable by this Court against the standard of correctness (Khosa v. Canada (Minister of Citizenship & Immigration), 2009 SCC 12 (S.C.C.) at para 43; Re:Sound v. Fitness Industry Council of Canada, 2014 FCA 48 (F.C.A.) [Re:Sound v. Fitness Industry Council of Canada] at para 34). Nevertheless, some deference is owed by this Court to the RPD’s proce- dural choices (Re:Sound v. Fitness Industry Council of Canada at para 42; Forest Ethics Advocacy Assn. v. National Energy Board, 2014 FCA 245 (F.C.A.) at paras 70, 81. This may include procedural choices re- garding the disclosure of information (Re:Sound v. Fitness Industry Council of Canada at para 37). 22 Disclosure of information may be necessary to provide the affected party with a reasonable opportunity for meaningful participation in the decision-making process (Adewole c. Canada (Ministre de la Citoyennet´e et de l’Immigration), 2014 FC 112 (F.C.) at paras 27-28). When a decision-maker unilaterally consults information found on the Internet, and this could not have been reasonably anticipated, then fair- ness may require that the person affected by the decision be given an opportunity to challenge its relevance or validity (Lopez Arteaga v. Canada (Minister of Citizenship and Immigration), 2013 FC 778 (F.C.) at para 24; Begum v. Canada (Minister of Citizenship and Immigration), 2013 FC 824 (F.C.)at para 20). 23 In this case, the Officer’s decision included the following statement: I looked up descriptions of [Ms. Tisson’s daughter’s] conditions at Wikipedia and followed a few of the related links. These showed a number of photos of children with varying degrees of these condi- tions. Their appearances ranged from mildly abnormal to severely disfigured. 24 The record disclosed to Ms. Tisson and submitted to this Court did not include the on-line photographs that were viewed by the Officer. Nor is it clear what inferences the Officer drew from viewing them. Because Ms. Tisson’s daughter was described by her doctor as “cur- rently...[appearing] to be mildly affected,” the implication is that the on- line photographs contributed to the Officer’s conclusion that she may not “experience significant problems in St. Lucia” or require “surgical care” in the future. However, according to the doctor who is treating Ms. Tis- Tisson v. Canada (MCI) Simon Fothergill J. 133

son’s daughter, “decisions with respect to surgery are delayed until ap- proximately 5-7 years of age, when the skull and orbital growth are al- most complete.” At the time of the Officer’s decision, Ms. Tisson’s daughter was not yet five years of age. 25 I conclude that the Officer’s reliance on the results of an Internet search that were not disclosed to Ms. Tisson denied her the opportunity to address the information, and thereby breached her right to procedural fairness.

VI. Conclusion 26 For the foregoing reasons, the application for judicial review is al- lowed and the matter is remitted to a different immigration officer for re- determination.

Judgment THIS COURT’S JUDGMENT is that the application for judicial re- view is allowed and the matter is remitted to a different immigration of- ficer for re-determination. No question is certified for appeal. Application granted. 134 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

[Indexed as: Sydoruk v. Canada (Minister of Citizenship and Immigration)] Oksana Sydoruk, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-8012-14 2015 FC 945, 2015 CF 945 Simon Fothergill J. Heard: June 16, 2015 Judgment: August 6, 2015 Immigration and citizenship –––– Admission — Immigrants — Skilled workers — Categories (point system) — Arranged employment –––– Appli- cant was Ukrainian citizen — Applicant met her sister’s employer in May 2011 while visiting Canada and he was impressed with her but said she would need to have more experience before he could offer her job with his company — Appli- cant obtained more experience and was offered position as bookkeeper — Ap- plicant brought application for permanent residence in federal skilled worker class as bookkeeper — Application was dismissed — Visa officer questioned authenticity of job offer applicant had received — Applicant was unable to allay officer’s concerns — Applicant brought application for judicial review — Ap- plication granted; matter remitted to different visa officer for re-determina- tion — Officer’s assessment of genuineness of applicant’s job offer was not con- ducted in accordance with prescribed regulatory scheme and it was therefore unreasonable — Applicant was not made aware of basis for officer’s suspicion and did not have reasonable opportunity to respond — Officer’s decision was not reasonable — Officer concluded that applicant’s job offer was not genuine and awarded her no points for Arranged Employment Offer but his notes showed he had fundamental misunderstanding of situation — Applicant did not receive job offer when she first met her sister’s employer in May 2011 so it was hardly surprising that she did not immediately visit workplace to find out more about business or meet her future co-workers — Job offer was made in writing several months later when applicant was in Ukraine acquiring further work ex- perience with company there — There was no correlation between officer’s as- sessment of applicant’s job offer and criteria that he was required to apply pur- suant to s 200(5) of Regulations which are primarily concerned with integrity of prospective employer and are mandatory — Officer was preoccupied with credi- bility and qualifications of applicant — It was unclear whether result would have been the same if job offer had been properly assessed — Officer’s conclu- Sydoruk v. Canada (MCI) 135 sion that employment offer was not genuine was fatal to application — As of- ficer’s assessment of genuineness of applicant’s employment offer was not con- ducted in accordance with s 200(5) of Regulations, his decision cannot be said to fall within range of possible, acceptable outcomes that are defensible in respect of facts and law — Officer’s decision was not procedurally fair — While of- ficer’s duty of fairness was at low end of spectrum, it still required him to in- form applicant of his concerns so that there is opportunity to respond, particu- larly as his concerns related to authenticity or credibility of evidence provided. Immigration and citizenship –––– Admission — Application for temporary resident or immigrant visa — Powers and duties of visa or immigration of- ficer — Procedural fairness –––– Applicant was Ukrainian citizen — Applicant met her sister’s employer in May 2011 while visiting Canada and he was im- pressed with her but said she would need to have more experience before he could offer her job with his company — Applicant obtained more experience and was offered position as bookkeeper — Applicant brought application for permanent residence in federal skilled worker class as bookkeeper — Applica- tion was dismissed — Visa officer questioned authenticity of job offer applicant had received — Applicant was unable to allay officer’s concerns — Applicant brought application for judicial review — Application granted; matter remitted to different visa officer for re-determination — Officer’s assessment of genuine- ness of applicant’s job offer was not conducted in accordance with prescribed regulatory scheme and it was therefore unreasonable — Applicant was not made aware of basis for officer’s suspicion and did not have reasonable opportunity to respond — Officer’s decision was not reasonable — Officer concluded that ap- plicant’s job offer was not genuine and awarded her no points for Arranged Em- ployment Offer but his notes showed he had fundamental misunderstanding of situation — Applicant did not receive job offer when she first met her sister’s employer in May 2011 so it was hardly surprising that she did not immediately visit workplace to find out more about business or meet her future co-work- ers — Job offer was made in writing several months later when applicant was in Ukraine acquiring further work experience with company there — There was no correlation between officer’s assessment of applicant’s job offer and criteria that he was required to apply pursuant to s 200(5) of Regulations which are primarily concerned with integrity of prospective employer and are mandatory — As of- ficer’s assessment of genuineness of applicant’s employment offer was not con- ducted in accordance with s 200(5) of Regulations, his decision could not be said to fall within range of possible, acceptable outcomes that are defensible in respect of facts and law — Officer’s decision was not procedurally fair — While officer’s duty of fairness was at low end of spectrum, it still required him to inform applicant of his concerns so that there is opportunity to respond, particu- larly as his concerns related to authenticity or credibility of evidence pro- vided — It was unclear whether officer communicated to applicant basis for sus- picions that job offer was not genuine and she was not given opportunity to 136 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th) disabuse him of this unwarranted suspicions — Officer’s decision was procedur- ally unfair. Cases considered by Simon Fothergill J.: British Columbia (Securities Commission) v. McLean (2013), 2013 SCC 67, 2013 CarswellBC 3618, 2013 CarswellBC 3619, 366 D.L.R. (4th) 30, [2014] 2 W.W.R. 415, (sub nom. McLean v. British Columbia Securities Commis- sion) 452 N.R. 340, 53 B.C.L.R. (5th) 1, (sub nom. McLean v. British Columbia (Securities Commission)) [2013] 3 S.C.R. 895, [2013] S.C.J. No. 67, (sub nom. McLean v. British Columbia Securities Commission) 347 B.C.A.C. 1, (sub nom. McLean v. British Columbia Securities Commission) 593 W.A.C. 1, 64 Admin. L.R. (5th) 237 (S.C.C.) — followed Kamchibekov v. Canada (Minister of Citizenship & Immigration) (2011), 2011 FC 1411, 2011 CarswellNat 5837, 2011 CF 1411, 2011 CarswellNat 5285, [2011] F.C.J. No. 1782, [2011] A.C.F. No. 1782 (F.C.) — referred to Keryakous v. Canada (Minister of Citizenship and Immigration) (2015), 2015 FC 325, 2015 CarswellNat 599, 2015 CarswellNat 2166 (F.C.) — referred to Khosa v. Canada (Minister of Citizenship & Immigration) (2009), 2009 SCC 12, 2009 CarswellNat 434, 2009 CarswellNat 435, 82 Admin. L.R. (4th) 1, [2009] S.C.J. No. 12, 77 Imm. L.R. (3d) 1, 385 N.R. 206, 304 D.L.R. (4th) 1, (sub nom. Canada (Citizenship & Immigration) v. Khosa) [2009] 1 S.C.R. 339 (S.C.C.) — referred to N.L.N.U. v. Newfoundland & Labrador (Treasury Board) (2011), 2011 SCC 62, 2011 CarswellNfld 414, 2011 CarswellNfld 415, D.T.E. 2012T-7, 340 D.L.R. (4th) 17, (sub nom. Nfld. and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board)) 2011 C.L.L.C. 220-008, (sub nom. Newfoundland & Labrador Nurses’ Union v. Newfoundland & Labrador (Treasury Board)) 424 N.R. 220, (sub nom. Newfoundland & Labrador Nurses’ Union v. Newfoundland & Labrador (Treasury Board)) [2011] 3 S.C.R. 708, [2011] S.C.J. No. 62, 213 L.A.C. (4th) 95, (sub nom. Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board)) 986 A.P.R. 340, (sub nom. Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board)) 317 Nfld. & P.E.I.R. 340, 97 C.C.E.L. (3d) 199, 38 Admin. L.R. (5th) 255 (S.C.C.) — distinguished New Brunswick (Board of Management) v. Dunsmuir (2008), 2008 SCC 9, 2008 CarswellNB 124, 2008 CarswellNB 125, D.T.E. 2008T-223, [2008] S.C.J. No. 9, (sub nom. Dunsmuir v. New Brunswick) 2008 C.L.L.C. 220-020, 64 C.C.E.L. (3d) 1, 69 Imm. L.R. (3d) 1, 69 Admin. L.R. (4th) 1, 372 N.R. 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] A.C.S. No. 9, 329 N.B.R. (2d) 1, (sub nom. Dunsmuir v. New Brunswick) [2008] 1 S.C.R. 190, 844 A.P.R. 1, (sub nom. Dunsmuir v. New Brunswick) 95 L.C.R. 65, 2008 CSC 9 (S.C.C.) — referred to Sydoruk v. Canada (MCI) Simon Fothergill J. 137

Patel v. Canada (Minister of Citizenship & Immigration) (2011), 2011 FC 571, 2011 CarswellNat 1657, 2011 CF 571, 2011 CarswellNat 3016, [2011] F.C.J. No. 714 (F.C.) — referred to Patel v. Canada (Minister of Citizenship & Immigration) (2002), 2002 FCA 55, 2002 CarswellNat 301, [2002] F.C.J. No. 178, 2002 CAF 55, 2002 Car- swellNat 1290, 288 N.R. 48, 23 Imm. L.R. (3d) 161, 219 F.T.R. 159 (note) (Fed. C.A.) — referred to Talpur v. Canada (Minister of Citizenship & Immigration) (2012), 2012 FC 25, 2012 CarswellNat 42, 2012 CF 25, 2012 CarswellNat 298, 4 Imm. L.R. (4th) 143, [2012] F.C.J. No. 22, [2012] A.C.F. No. 22 (F.C.) — referred to Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 12(2) — referred to s. 72 — pursuant to Regulations considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Immigration and Refugee Protection Regulations, SOR/2002-227 s. 75 — considered s. 76(1)(a) — considered s. 82(2)(c) — considered s. 200(5) — considered s. 203(1) — considered

APPLICATION for judicial review of refusal of application for permanent resi- dence in skilled workers class.

Inna Kogan, for Applicant Aleksandra Lipska, for Respondent

Simon Fothergill J.: I. Introduction 1 Oksana Sydoruk has brought an application for judicial review pursu- ant to s 72 of the Immigration and Refugee Protection Act, SC 2001, c 27 [the IRPA]. She challenges a decision of a visa officer [the Officer] to refuse her application for a permanent resident visa under the federal skilled worker class, a category of the economic class referred to in s 12(2) of the IRPA. 2 For the reasons that follow, I find that the Officer’s assessment of the genuineness of Ms. Sydoruk’s job offer was not conducted in accordance with the prescribed regulatory scheme, and it was therefore unreasona- 138 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

ble. I also find that Ms. Sydoruk was not made aware of the basis for the Officer’s suspicion, and she therefore did not have a reasonable opportu- nity to respond. The application for judicial review is allowed.

II. Background 3 Ms. Sydoruk is a citizen of Ukraine. In September, 2010, she came to Canada to visit her sister. Ms. Sydoruk’s sister works for Koss Aero- space, a Canadian company located in Mississauga, Ontario. 4 In May, 2011, Ms. Sydoruk was introduced to Drago Kajic, President of Koss Aerospace, who interviewed her for a position as a bookkeeper with the company. Ms. Sydoruk made a positive impression, but Mr. Kajic said that she required additional work experience before he could offer her a job. It was agreed that any hiring decision would be post- poned for several months. 5 Ms. Sydoruk left Canada in July, 2011 and returned to Ukraine. She found employment as a bookkeeper with a company called Plastics Ukraine. Approximately one year later, Ms. Sydoruk had a second inter- view with Mr. Kajic by telephone. 6 Mr. Kajic decided to hire Ms. Sydoruk. He obtained a positive Ar- ranged Employment Opinion [AEO] from Service Canada in October, 2012, and a formal offer of employment was extended to Ms. Sydoruk in December, 2012. In February, 2013, Ms. Sydoruk applied for a perma- nent resident visa as a member of the federal skilled worker class. 7 In September, 2014, Ms. Sydoruk was invited to attend an interview at the Canadian Embassy in Kiev, Ukraine. During the interview, the Of- ficer questioned the authenticity of the job offer from Koss Aerospace. Ms. Sydoruk was unable to allay the Officer’s concerns. In a decision dated September 29, 2014, Ms. Sydoruk was informed that she did not meet the requirements of the federal skilled worker class and her applica- tion was refused.

IV. Issues 8 This application for judicial review raises the following issues: A. Was the Officer’s decision reasonable? B. Was the Officer’s decision procedurally fair? Sydoruk v. Canada (MCI) Simon Fothergill J. 139

V. Analysis 9 A visa officer’s determination of an application for permanent resi- dence as a member of the federal skilled worker class involves findings of fact and law, and is to be reviewed by this Court against the standard of reasonableness (Patel v. Canada (Minister of Citizenship & Immigra- tion), 2011 FC 571 (F.C.) [Patel] at para 18). 10 Questions of procedural fairness are to be reviewed by this Court against the standard of correctness (Patel at para 18; Khosa v. Canada (Minister of Citizenship & Immigration), 2009 SCC 12 (S.C.C.) at para 43).

A. Was the Officer’s decision reasonable? 11 Federal skilled workers are described in s 75 of the Immigration and Refugee Protection Regulations, SOR 2002-227 [the Regulations] as people who may become permanent residents on the basis of their ability to become economically established in Canada. Visa officers award points to applicants based on the factors listed in s 76(1)(a) of the Regu- lations. These include education, proficiency in English and French, ex- perience, age, arranged employment and adaptability. Applicants must receive at least 67 points to be eligible for a federal skilled worker visa. 12 Under s 82(2)(c) of the Regulations, applicants from outside Canada receive ten points for arranged employment provided that the visa officer approves the job offer based on an opinion provided by the Department of Human Resources and Skills Development [HRSDC]. A visa officer is not bound by the HRSDC opinion. It is for the officer to determine whether the job offer meets the requirements of s 203(1) of the Regula- tions, including whether it is genuine. 13 Whether a job offer is genuine is determined in accordance with s 200(5) of the Regulations, which at the time of the Officer’s decision read as follows: 200. (5) A determination of whether an offer of employment is genu- ine shall be based on the following factors: (a) whether the offer is made by an employer that is actively en- gaged in the business in respect of which the offer is made unless the offer is made for employment as a live-in caregiver; (b) whether the offer is consistent with the reasonable employ- ment needs of the employer; 140 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

(c) whether the terms of the offer are terms that the employer is reasonably able to fulfil; and (d) the past compliance of the employer, or any person who re- cruited the foreign national for the employer, with the federal or provincial laws that regulate employment, or the recruiting of employees, in the province in which it is intended that the foreign national work. 14 In this case, the Officer concluded that Ms. Sydoruk’s job offer was not genuine and he therefore awarded her no points for her Arranged Employment Offer from Koss Aerospace: Following your interview at this Embassy and careful review of all the documentation on your application I cannot conclude that this of- fer was made in good faith and is genuine pursuant to Regulation 82 of the Immigration and Refugee Protection Regulations. You were given an opportunity to respond to my concerns with respect to your job offer in the course of the interview at the Embassy but failed to do so. No points can be awarded therefore for your Arranged Em- ployment Offer. You have not obtained the minimum number of points, currently 67, required for a permanent resident visa. You have therefore not satis- fied me that you will be able to become economically established in Canada. 15 The Officer’s concerns were further elucidated in the notes contained in the Global Case Management System (GCMS) that were prepared fol- lowing his interview with Ms. Sydoruk and which form part of the Of- ficer’s decision: Explained to PA that I had serious concerns with respect to the au- thenticity of PA’s job offer fm CDA; It’s not clear how PA was se- lected for the position of a bookkeeper and what was the selection criteria given that PA had no work experience and did not have fluent English at the time of her interview with the president of the com- pany; PA indicated that she was offered a job as PA’s purported em- ployer was planning to expand his business in Eastern Europe and needed new employees for his new office; PA did not know when and where her employer was planning to expand his business and could not explain why he hadn’t done it so far; PA advised that her employer was happy with PA’s job interview of May, 2011 yet PA failed to visit the place of her potential employment/find out more about nature of its business, meet her future co-workers etc; I suspect that PA’s sister who has been working in Cda for the same employer might have come into agreement with MR Cajic [sic] and arranged Sydoruk v. Canada (MCI) Simon Fothergill J. 141

current job offer in order to facilitate her sister’s (PA) entry to Cda; PA could not provide any credible explanation and dispel my con- cerns that were conveyed to her during the interview; I’m not satis- fied therefore that PA’s job offer is a genuine one and cannot accredit any points for it; PA has obtained insufficient points to qualify for immigration to Canada, the minimum requirement being 67 points. Application refused. [Emphasis added.] 16 The Officer’s GCMS notes betray a fundamental misunderstanding. Ms. Sydoruk was not offered a job in May, 2011, and it is therefore hardly surprising that she did not immediately visit the workplace to find out more about the business or meet her future co-workers. The job offer was made in writing several months later when Ms. Sydoruk was in Ukraine acquiring further work experience with Plastics Ukraine. 17 Quite apart from this factual error, there does not appear to be any correlation between the Officer’s assessment of Ms. Sydoruk’s job offer and the criteria that he was required to apply pursuant to s 200(5) of the Regulations. The factors enumerated in s 200(5) are primarily concerned with the integrity of the prospective employer. The Officer in this case was preoccupied with the credibility and qualifications of Ms. Sydoruk. It is unclear whether the result would have been the same if the job offer had been properly assessed in accordance with s 200(5). What is clear is that the Officer’s conclusion that the employment offer was not genuine was fatal to Ms. Sydoruk’s application. 18 This is not a case where deficient reasons may be rescued in the man- ner contemplated in N.L.N.U. v. Newfoundland & Labrador (Treasury Board), 2011 SCC 62 (S.C.C.). The Officer was required to assess Ms. Sydoruk’s job offer in accordance with s 200(5) of the Regulations. The criteria are mandatory, not optional. As Justice Moldaver remarked in British Columbia (Securities Commission) v. McLean, 2013 SCC 67 (S.C.C.) at para 38, where the ordinary tools of statutory interpretation lead to a single reasonable interpretation and the administrative decision- maker adopts a different interpretation, its interpretation will necessarily be unreasonable; the “range of reasonable outcomes” will necessarily be limited to a single reasonable interpretation and the administrative deci- sion-maker must adopt it. 19 Because the Officer’s assessment of the genuineness of Ms. Sydoruk’s employment offer was not conducted in accordance with s 200(5) of the Regulations, his decision cannot be said to fall within a 142 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

range of possible, acceptable outcomes that are defensible in respect of the facts and law (New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9 (S.C.C.) at para 47). The application for judicial review must be allowed.

B. Was the Officer’s decision procedurally fair? 20 The content of the duty of fairness owed by a visa officer when deter- mining a visa application by an applicant in the independent category is at the lower end of the range (Patel v. Canada (Minister of Citizenship & Immigration), 2002 FCA 55 (Fed. C.A.) at para 10). A visa officer has no duty to inform an applicant of any concerns regarding the application that arise directly from the requirements of the legislation or regulations (Kamchibekov v. Canada (Minister of Citizenship & Immigration), 2011 FC 1411 (F.C.) at para 26). 21 Even if the duty of fairness is at the low end of the spectrum, it never- theless requires visa officers to inform applicants of their concerns so that applicants have an opportunity to respond, particularly where those concerns relate to the authenticity or credibility of evidence provided by the applicant (Talpur v. Canada (Minister of Citizenship & Immigration), 2012 FC 25 (F.C.) at para 21). In this case, the authenticity of the job offer from Koss Aerospace was in doubt. While it appears from the Of- ficer’s GCMS notes that he raised this concern with Ms. Sydoruk during the interview, it is unclear whether he communicated the basis for his suspicion. As mentioned above, the GCMS notes include the following: I suspect that PA’s sister who has been working in Cda for the same employer might have come into agreement with MR Cajic [sic] and arranged current job offer in order to facilitate her sister’s (PA) entry to Cda; PA could not provide any credible explanation and dispel my concerns that were conveyed to her during the interview; I’m not sat- isfied therefore that PA’s job offer is a genuine one and cannot ac- credit any points for it; 22 There is nothing in the record to indicate that Ms. Sydoruk was made aware of the Officer’s suspicion that her sister had conspired with Mr. Kajic to concoct a fraudulent job offer, nor does there appear to be any objective basis for the Officer’s suspicion. Ms. Sydoruk was never given an opportunity to disabuse the officer of his unwarranted speculation, and accordingly the Officer’s decision was procedurally unfair (Keryakous v. Canada (Minister of Citizenship and Immigration), 2015 FC 325 (F.C.) at para 20). Sydoruk v. Canada (MCI) Simon Fothergill J. 143

VI. Conclusion 23 For the foregoing reasons, the application for judicial review is al- lowed and the matter is remitted to a different visa officer for re-determi- nation. No question is certified for appeal.

Judgment THIS COURT’S JUDGMENT is that the application for judicial re- view is allowed and the matter is remitted to a different visa officer for re-determination. No question is certified for appeal. Application granted. 144 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

[Indexed as: Memon v. Canada (Minister of Public Safety and Emergency Preparedness)] Javed Memon, Applicant and The Minister of Public Safety and Emergency Preparedness, Respondent Federal Court Docket: IMM-3039-15 2015 FC 908, 2015 CF 908 Peter Annis J. Heard: July 7, 2015 Judgment: July 24, 2015 Immigration and citizenship –––– Exclusion and removal — Removal from Canada — Removal orders — Miscellaneous –––– Ministerial relief — For- eign national was Pakistani national who had been member of Muttahida Quami Movement-Altaf — Foreign national came to Canada in June 1998 using fraud- ulent passport — Foreign national unsuccessfully applied for refugee protec- tion — Foreign national married Canadian citizen in November 1999 and was granted permanent residence in principle in March 2000 — Foreign national was ultimately found to be inadmissible to Canada due to involvement in terrorist organization — Canada Border Services Agency (“CBSA”) recommended that ministerial relief be denied — Jurisprudence regarding ministerial relief re- mained in state of flux for many years — Minister of Public Safety and Emer- gency Preparedness never made determination — Foreign national commenced application for leave to bring application for judicial review, essentially seeking to bar removal from Canada based on abuse of process — Foreign national brought motion for interim stay of application for ministerial relief — Motion dismissed — Foreign national failed to establish serious issue to be tried — While foreign national had been victim of some unaccounted delay approaching what might be considered unreasonable, length of delay was overstated — Two years of unaccounted delay had occurred between 2000 and 2003, but subse- quent period in excess of five years to complete all proceedings relating to inad- missibility was not untoward — Most of that delay was also not attributable to minister — Considerable delay after 2008 related to state of flux regarding test to be applied in ministerial relief decision — At least part of this delay was rea- sonable — Foreign national appeared to have agreed to and contributed to de- lay — There was further unexplained delay of about 20 months after Supreme Court of Canada released decision in another case, but foreign national again contributed to delay — Abuse of process argument was not raised until re- cently — Delay in itself did not give rise to claim of abuse of process in this Memon v. Canada (Minister of Public Safety) 145

case — Foreign national failed to establish significant prejudice — Foreign na- tional also failed to establish irreparable harm or that balance of convenience was in favour — Nothing would be gained from staying minister’s determination. Cases considered by Peter Annis J.: Agraira v. Canada (Minister of Public Safety and Emergency Preparedness) (2009), 2009 FC 1302, 2009 CarswellNat 4438, 2009 CF 1302, 2009 Car- swellNat 5509, 87 Imm. L.R. (3d) 135, 357 F.T.R. 246 (Eng.), [2009] F.C.J. No. 1664 (F.C.) — followed Agraira v. Canada (Minister of Public Safety and Emergency Preparedness) (2011), 2011 FCA 103, 2011 CarswellNat 639, 2011 CAF 103, 96 Imm. L.R. (3d) 20, 2011 CarswellNat 2494, 415 N.R. 121, [2011] F.C.J. No. 407, [2011] A.C.F. No. 407, [2012] 4 F.C.R. 538 (F.C.A.) — considered Agraira v. Canada (Minister of Public Safety and Emergency Preparedness) (2013), 2013 SCC 36, 2013 CarswellNat 1983, 2013 CarswellNat 1984, 52 Admin. L.R. (5th) 183, 360 D.L.R. (4th) 411, 16 Imm. L.R. (4th) 173, [2013] S.C.J. No. 36, 446 N.R. 65, [2013] 2 S.C.R. 559 (S.C.C.) — considered Almrei v. Canada (Minister of Citizenship and Immigration) (2014), 2014 FC 1002, 2014 CarswellNat 4738, 2014 CF 1002, 2014 CarswellNat 6307, 31 Imm. L.R. (4th) 92, 86 Admin. L.R. (5th) 128 (F.C.) — considered American Cyanamid Co. v. Ethicon Ltd. (1975), [1975] A.C. 396, [1975] 1 All E.R. 504, [1975] F.S.R. 101, [1975] R.P.C. 531, 119 Sol. Jo. 136, [1975] 2 W.L.R. 316, [1975] UKHL 1 (U.K. H.L.) — considered Beltran v. Canada (Minister of Citizenship & Immigration) (2011), 2011 FC 516, 2011 CarswellNat 1437, 2011 CF 516, 2011 CarswellNat 2619, 234 C.R.R. (2d) 145, [2011] F.C.J. No. 633 (F.C.) — considered Blencoe v. British Columbia (Human Rights Commission) (2000), 2000 SCC 44, 2000 CarswellBC 1860, 2000 CarswellBC 1861, 3 C.C.E.L. (3d) 165, [2000] S.C.J. No. 43, 81 B.C.L.R. (3d) 1, 190 D.L.R. (4th) 513, [2000] 10 W.W.R. 567, 23 Admin. L.R. (3d) 175, 2000 C.L.L.C. 230-040, 260 N.R. 1, (sub nom. British Columbia (Human Rights Commission) v. Blencoe) 77 C.R.R. (2d) 189, 141 B.C.A.C. 161, 231 W.A.C. 161, [2000] 2 S.C.R. 307, (sub nom. British Columbia (Human Rights Commission) v. Blencoe) 38 C.H.R.R. D/153, REJB 2000-20288, 2000 CSC 44 (S.C.C.) — followed Bruzzese v. Canada (Minister of Public Safety and Emergency Preparedness) (June 23, 2014), Doc. IMM-3119-14 (F.C.) — referred to C.B. Powell Ltd. c. Canada (Agence des services frontaliers) (2010), 2010 FCA 61, 2010 CarswellNat 391, 2010 CAF 61, 2010 CarswellNat 1197, (sub nom. Powell (C.B.) Ltd. v. Canada Border Services Agency (President)) 400 N.R. 367, [2010] F.C.J. No. 274, [2011] 2 F.C.R. 332 (F.C.A.) — considered C.B. Powell Ltd. c. Canada (Agence des services frontaliers) (2011), 2011 Car- swellNat 2391, [2011] S.C.C.A. No. 267 (S.C.C.) — referred to 146 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

Canada (Minister of Citizenship & Immigration) v. Parekh (2010), 2010 FC 692, 2010 CarswellNat 1994, 372 F.T.R. 196 (Eng.), [2012] 1 F.C.R. 169, 2010 CF 692, 2010 CarswellNat 6193, [2010] F.C.J. No. 856 (F.C.) — distinguished Charkaoui, Re (2008), 2008 SCC 38, 2008 CarswellNat 1898, 2008 CarswellNat 1899, 70 Imm. L.R. (3d) 1, [2008] S.C.J. No. 39, 376 N.R. 154, 294 D.L.R. (4th) 478, 58 C.R. (6th) 45, (sub nom. Charkaoui v. Canada (Minister of Citizenship and Immigration)) [2008] 2 S.C.R. 326, (sub nom. Charkaoui v. Canada (Minister of Citizenship & Immigration)) 175 C.R.R. (2d) 120 (S.C.C.) — referred to Czesak v. Canada (Minister of Citizenship and Immigration) (2013), 2013 FC 1149, 2013 CarswellNat 4195, 2013 CF 1149, 2013 CarswellNat 4476 (F.C.) — referred to Hassanzadeh v. Canada (Minister of Citizenship & Immigration) (2005), 2005 FC 902, 2005 CarswellNat 1777, 2005 CF 902, 2005 CarswellNat 2581, 47 Imm. L.R. (3d) 251, [2005] 4 F.C.R. 430, 276 F.T.R. 117, [2005] F.C.J. No. 1121, [2005] A.C.F. No. 1121 (F.C.) — referred to John Doe v. Canada (Minister of Citizenship & Immigration) (2007), 2007 FC 327, 2007 CarswellNat 718, 2007 CF 327, 2007 CarswellNat 1933, 61 Imm. L.R. (3d) 134, [2007] F.C.J. No. 456 (F.C.) — referred to Kanagaratnam v. Canada (Minister of Citizenship and Immigration) (August 28, 2013), Doc. Ottawa IMM-5387-13 (F.C.) — referred to Mahjoub, Re (2013), [2013] F.C.J. No. 1216, 2013 FC 1095, 2013 CarswellNat 6395, 26 Imm. L.R. (4th) 180 (F.C.) — referred to Membreno-Garcia v. Canada (Minister of Employment & Immigration) (1992), 7 Admin. L.R. (2d) 38, [1992] 3 F.C. 306, 17 Imm. L.R. (2d) 291, 55 F.T.R. 104, 93 D.L.R. (4th) 620, 1992 CarswellNat 63, 1992 CarswellNat 602, [1992] F.C.J. No. 535 (Fed. T.D.) — referred to Metropolitan Stores (MTS) Ltd. v. Manitoba Food & Commercial Workers, Local 832 (1987), 38 D.L.R. (4th) 321, 73 N.R. 341, (sub nom. Manitoba (Attorney General) v. Metropolitan Stores (M.T.S.) Ltd.) [1987] 3 W.W.R. 1, 46 Man. R. (2d) 241, (sub nom. Manitoba (Attorney General) v. Metropolitan Stores (M.T.S.) Ltd.) 25 Admin. L.R. 20, (sub nom. Manitoba (Attorney General) v. Metropolitan Stores (M.T.S.) Ltd.) 87 C.L.L.C. 14,015, 18 C.P.C. (2d) 273, [1987] D.L.Q. 235, 1987 CarswellMan 176, (sub nom. Manitoba (Attorney General) v. Metropolitan Stores Ltd.) [1987] 1 S.C.R. 110, 1987 CarswellMan 272, [1987] S.C.J. No. 6, EYB 1987-67148 (S.C.C.) — referred to Moulton Contracting Ltd. v. British Columbia (2013), 2013 SCC 26, 2013 Car- swellBC 1158, 2013 CarswellBC 1159, 357 D.L.R. (4th) 236, 43 B.C.L.R. (5th) 1, [2013] 7 W.W.R. 1, 443 N.R. 303, (sub nom. Behn v. Moulton Contracting Ltd.) [2013] 3 C.N.L.R. 125, 333 B.C.A.C. 34, 571 W.A.C. 34, Memon v. Canada (Minister of Public Safety) Peter Annis J. 147

(sub nom. Behn v. Moulton Contracting Ltd.) [2013] 2 S.C.R. 227, [2013] S.C.J. No. 26, [2013] A.C.S. No. 26 (S.C.C.) — referred to Nalliah v. Canada (Solicitor General) (2004), 2004 FC 1649, 2004 CF 1649, 2004 CarswellNat 4305, 2004 CarswellNat 4333, [2004] F.C.J. No. 2005, [2005] 3 F.C.R. 210, 264 F.T.R. 148 (F.C.) — referred to Toth v. Canada (Minister of Employment & Immigration) (1988), 86 N.R. 302, 6 Imm. L.R. (2d) 123, 1988 CarswellNat 64, [1988] F.C.J. No. 587, 1988 Car- swellNat 1571 (Fed. C.A.) — followed Turbo Resources Ltd. v. Petro-Canada Inc. (1989), 91 N.R. 341, 22 C.I.P.R. 172, 24 C.P.R. (3d) 1, 1989 CarswellNat 579, 39 F.T.R. 240 (note), 1989 CarswellNat 626, [1989] 2 F.C. 451, [1989] F.C.J. No. 14 (Fed. C.A.) — referred to Tursunbayev v. Canada (Minister of Public Safety and Emergency Prepared- ness) (2012), [2012] F.C.J. No. 1700, 2012 FC 532 (F.C.) — referred to United States v. Tollman (2006), 2006 CarswellOnt 5545, 144 C.R.R. (2d) 1, 212 C.C.C. (3d) 511, 271 D.L.R. (4th) 578, [2006] O.J. No. 3672 (Ont. S.C.J.) — considered Valle Lopes v. Canada (Minister of Citizenship & Immigration) (2010), 2010 FC 403, 2010 CarswellNat 872, 88 Imm. L.R. (3d) 25, 2010 CF 403, 2010 Car- swellNat 2631, 6 Admin. L.R. (5th) 257, 367 F.T.R. 41 (Eng.) (F.C.) — considered Statutes considered: Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 s. 7 — considered Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 34 — considered s. 34(1)(f) — considered s. 34(2) — considered s. 37(1)(b) — considered s. 44(1) — considered

MOTION by foreign national for interim stay of application for ministerial relief.

Lorne Waldman, for Applicant Jamie Todd, for Respondent

Peter Annis J.: I. Introduction 1 This is a motion brought by the Applicant seeking an Order staying the processing of his pending application for Ministerial Relief pursuant 148 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

to the former subsection 34(2) of the Immigration and Refugee Protec- tion Act, SC 2001, c 27 [IRPA or the Act] on an interim basis until the determination of his application for leave and for judicial review.

II. Background 2 The Applicant is a Pakistani national who became a supporter of the Muttahida Quami Movement-Altaf [MQM-A] in Pakistan in 1992 and a member of that organization in 1994. He allegedly participated in recruit- ment and fundraising initiatives for the MQM-A, as well as peaceful demonstrations and acted as a support worker for the president of the Kharadar unit. His evidence is that he was arrested by police in 1995 and charged with violating laws prohibiting the assembly of more than four persons, but was released with a warning. 3 According to the Applicants’ claims, in September 1996, he partici- pated in a peaceful demonstration against the police’s refusal to investi- gate the kidnapping, torture and murder of a MQM-A member by mem- bers of its rival, the Muttahida Quami Movement-Haqiqi [MQM-H]. Shortly afterwards, he was detained and tortured by police for his role in the protest. 4 The Applicant states that, after this incident, he no longer took part in demonstrations continued to be involved with the MQM-A and he cam- paigned for a MQM-A provincial candidate in the January 1997 elec- tions. Following the election, the MQM-H members targeted, harassed and attacked him and in December 1997 he was kidnapped, detained and tortured by unknown individuals who wanted him to cease his activities with MQM-A. After his release he went into hiding and decided to leave Pakistan. 5 The Applicant arrived in Canada on June 15, 1998 using a fraudulent passport and made a claim for refugee protection the following day. His refugee claim was denied by the Immigration and Refugee Board [IRB] in June 1999. 6 On November 19, 1999, the Applicant married a Canadian citizen who went on to sponsor him and submit a Request for Exemption from Immigration Visa Requirement under Humanitarian and Compassionate [H&C] grounds on January 24, 2000. The H&C exemption was granted and took effect as an application for permanent residence and the appli- cation for permanent residence was approved in principle on March 13, 2000. Memon v. Canada (Minister of Public Safety) Peter Annis J. 149

7 In the course of processing his application for permanent residence, the Applicant was interviewed on June 13, 2000, during which he de- scribed his involvement with the MQM-A. On some unstated date in 2003, Citizenship and Immigration Canada [CIC] sent a fairness letter to the Applicant, giving him an opportunity to provide submissions relating to his involvement with the MQM-A. He replied with the application for Ministerial Relief on December 17, 2003. 8 The Applicant was interviewed by the Canada Border Services Agency [CBSA] on September 14, 2004 and based on the information obtained in that interview, the CBSA held that there were reasonable grounds to believe that the Applicant was inadmissible to Canada pursu- ant to paragraph 34(1)(f) of the IRPA. A report regarding his admissibil- ity was prepared pursuant to subsection 44(1) of the IRPA on April 18, 2005. 9 On November 30, 2005 the IRB found that the Applicant was not inadmissible to Canada, but the Respondent appealed the IRB decision and the Immigration Appeal Division [IAD] found that the Applicant was inadmissible to Canada on October 16, 2007. A removal order was issued against him. 10 The Applicant provided further submissions to the CBSA on January 6, 2006. He also applied for leave and for judicial review of the IAD decision in this court, which was dismissed on May 14, 2008. 11 The CBSA made recommendations to the Minister to deny the Minis- terial relief, which were disclosed to the Applicant in April 2008. He provided additional submissions in response on April 23, 2008 and De- cember 4, 2008, but no decision was taken by the Minister. 12 On December 31, 2009, Justice Mosley set aside the Ministerial relief decision in Agraira v. Canada (Minister of Public Safety and Emergency Preparedness), 2009 FC 1302 (F.C.) [Agraira] for applying too narrow a test. On March 17, 2011, this decision was reversed by the Federal Court of Appeal in Agraira v. Canada (Minister of Public Safety and Emergency Preparedness), 2011 FCA 103 (F.C.A.), outlining that the principal, if not the only, consideration in the processing of a Ministerial relief application is national security and public safety and that relief is clearly intended to be exceptional. 13 In December 2012, a second CBSA recommendation to deny Minis- terial relief was disclosed to the Applicant based upon the reasons in the 150 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

Federal Court of Appeal decision in Agraira. The recommendation indi- cated as follows: Due to a number of FCC decisions, including the FCA decision in Canada (Public Safety and Emergency Preparedness) v. Agraira, 2011 FCA 103, leave to appeal to the SCC granted (December 8, 2011), File No. 34258, a final recommendation was not delivered to the Minister of Public Safety for decision because the relevant Min- ister relief considerations changed. 14 The Applicant requested extensions to make submissions twice: on December 18, 2012 and on January 9, 2013. The CBSA granted both requests. On February 21, 2013 the Applicant responded to the second CBSA disclosure with further submissions and he requested that a deci- sion by the Minister be delayed until after the Supreme Court decision in Agraira. 15 On June 20, 2013, the Supreme Court released its decision Agraira v. Canada (Minister of Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559 (S.C.C.), which confirmed that the predom- inant considerations in granting Ministerial relief are national security and public safety, but that personal factors of an applicant may be con- sidered insofar as they relate to determining whether the applicant’s pres- ence would be detrimental to the national interest. 16 On March 10, 2015, a third recommendation to deny Ministerial Re- lief was disclosed to the Applicant by CBSA. On April 6, 2015, the Ap- plicant requested an extension to provide submissions, which CBSA granted on April 8, 2015. The Applicant’s submissions in response to CBSA’s latest disclosure were received on June 9, 2015. The submis- sions contained the following comment: The CBSA has delayed 12 years in providing an answer to this min- isterial relief application. The delay has caused intense emotional and psychological distress to Mr. Memon and his family. The delay is so severe and has caused such severe psychological distress so as to constitute a breach of section seven. [Footnote omitted.] 17 The June 9 submissions also included a section entitled “Delay is an Abuse of Process” containing submissions and citing jurisprudence in support of this submission. It also contained submissions alleging that the Minister failed to apply the Agraira factors and that the MQM-A is not a terrorist organization. Memon v. Canada (Minister of Public Safety) Peter Annis J. 151

18 The Applicant thereafter requested a three-week extension to allow for further submissions, which was granted by the CBSA. The Appli- cant’s further submissions were received on July 2, 2015. He submitted that “the delay of 13 years was so extreme and the prejudice so severe that the Minister must exercise his discretion and allow the application” and included submissions of procedural and severe emotional prejudice, along with an argument based on section 7 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Sched- ule B to the Canada Act 1982 (UK), 1982, c 11 [the Charter]. The sub- missions also contained a confidential forensic psychological assessment dated June 24, 2015 from Dr. Warren Weir. 19 The Applicant’s Ministerial relief application remains outstanding and cannot be rendered until such time as the Applicant’s submissions are considered and a further recommendation is provided to the Minister.

III. Submissions A. Serious Issue (1) Delay as an Abuse of Process 20 The Applicant submits that the underlying application raises the seri- ous issue of whether the unexplained and extreme delay in processing the Ministerial relief application constitutes an abuse of process that would warrant providing him an appropriate remedy before the Minister renders a decision. 21 The Applicant’s primary position is that there are serious reasons for believing that the delay amounts to an abuse of process as characterized by the Supreme Court in Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307 (S.C.C.) [Blencoe]. 22 The Applicant argues that the delay in this case is substantial and has caused him severe prejudice. It has impaired his ability to answer the complaint against him, has caused him severe emotional prejudice and because the delay itself is “so oppressive as to taint the proceedings” (cit- ing Blencoe at para 121). The Applicant submits that the concerns raised in the recent CBSA recommendations have changed, it is now alleged that he had in-depth involvement with the MQM-A, and that he has been unable to receive a response from the MQM-A in order to defend himself against these allegations due to the passage of time. On the issue of the length of the delay, the Applicant submits that there is no reasonable ex- planation for the delay because the issues at hand are not complex and 152 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

there is nothing inherent to the administrative process that requires sev- eral years for a decision. Finally, the Applicant submits that all of the information necessary for these proceedings was available at the time of the Applicant’s original application in 2003 and the cause of the delay rests entirely on the Respondent(see Canada (Minister of Citizenship & Immigration) v. Parekh, 2010 FC 692 (F.C.) at para 56, (2010), [2012] 1 F.C.R. 169 (F.C.) per Tremblay-Lamer J [Parekh]). 23 The Respondent contends that to obtain a permanent stay based on abuse of process, the Applicant must also demonstrate that if the Minister were to make a decision, the abuse in question would be “manifested, perpetuated or aggravated” to such an extent as to constitute one of the “clearest of cases” warranting a stay of proceedings (citing Mahjoub, Re, 2013 FC 1095 (F.C.) at paras 383 & 491). It is the Respondent’s position that this is not one of the “clearest of cases” — the processing time of the application has been lengthy but not excessively long, the Applicant has suffered no prejudice from the delay, there are alternative and more ap- propriate remedies available to the Applicant, the Applicant has not out- lined any conduct that can be characterized as intentionally abusive or in bad faith, and the harm to the public interest if the determination is halted outweighs any damage to the public interest caused by the administrative delay in the process (citing Blencoe at paras 101, 120-121, Charkaoui, Re, 2008 SCC 38 (S.C.C.) at para 76, [2008] 2 S.C.R. 326 (S.C.C.)). 24 Further, the appropriate time to determine Ministerial Relief was after a conclusive determination on his inadmissibility had been made, which in this case occurred on May 14, 2008 when the Federal Court dismissed leave for his judicial review of the IAD decision (citing Hassanzadeh v. Canada (Minister of Citizenship & Immigration), 2005 FC 902, [2005] 4 F.C.R. 430 (F.C.)). Further, the Respondent submits that the changes in the jurisprudence caused by the Federal Court, the Federal Court of Ap- peal and Supreme Court decisions involving Mr. Ramadan Agraira (Agraira v. Canada (Minister of Public Safety and Emergency Prepared- ness), 2013 SCC 36 (S.C.C.) at paras 86-87, [2013] 2 S.C.R. 559 (S.C.C.) [Agraira SCC], Agraira v. Canada (Minister of Public Safety and Emergency Preparedness), 2011 FCA 103, 415 N.R. 121 (F.C.A.) [Agraira FCA], setting aside Agraira v. Canada (Minister of Public Safety and Emergency Preparedness), 2009 FC 1302, 357 F.T.R. 246 (Eng.) (F.C.) [Agraira FC]) would have affected the processing time for the Ministerial relief applications. Memon v. Canada (Minister of Public Safety) Peter Annis J. 153

25 The Respondent argues that “absent exceptional circumstances, par- ties cannot proceed to the court system until the administrative process has run its course,” so the application is premature because the adminis- trative process is still ongoing, the Applicant has other available, appro- priate and effective remedies, and he will not be prejudiced by waiting for a decision to be made (citing C.B. Powell Ltd. c. Canada (Agence des services frontaliers), 2010 FCA 61, [2010] F.C.J. No. 274 (F.C.A.) at paras 30-31 [C.B. Powell], leave to appeal to Supreme Court of Canada refused, [2011] S.C.C.A. No. 267 (S.C.C.), [2011] 2 F.C.R. 332 (F.C.A.), Bruzzese v. Canada (Minister of Public Safety and Emergency Prepared- ness) [(June 23, 2014), Doc. IMM-3119-14 (F.C.)] at 5 (unpublished)).

(2) Section 7 of the Charter 26 It has also been contended by the Applicant that the prolonged delay in this case renders the determination process unfair and contrary to sec- tion 7 of the Charter. It is the Applicant’s position that the principles of fundamental justice include the right to a fair hearing in a reasonable time and excessive administrative delay has been previously held to be a breach of fundamental justice (citing Blencoe). The Court finds no rea- sonable basis for this contention in the jurisprudence in the circum- stances alleged by the Applicant and will not respond to the submissions in a stay application.

B. Irreparable Harm 27 The Applicant submits that he will suffer irreparable harm if the stay is not granted because he will be subjected to continued abuse due to the associated delay and prejudice. The Applicant’s position is that a contin- uation of the proceedings related to his Ministerial relief application amounts to an abuse of process and to continue to subject him to these proceedings would harm him and the public’s confidence in the fairness of the proceedings, neither of which can be remedied after the fact (citing John Doe v. Canada (Minister of Citizenship & Immigration), 2007 FC 327 (F.C.) at para 18, per Phelan J [John Doe], Tursunbayev v. Canada (Minister of Public Safety and Emergency Preparedness) [2012 FC 532 (F.C.)], IMM-2220-12, May 4, 2012, per Russell J (unpublished) [Tur- sunbayev], Kanagaratnam v. Canada (Minister of Citizenship and Immi- gration) [(August 28, 2013), Doc. Ottawa IMM-5387-13 (F.C.)], per Manson J (unpublished) [Kanagaratnam (2013)]). 154 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

28 The Respondent submits that if the Court grants the stay, it will only serve to further delay the processing of the application. In the Respon- dent’s estimation, the only harm feared by the Applicant is that a deci- sion will be made and that this is not irreparable harm since he would be able to seek judicial review of an unfavourable decision. The Respondent notes that the Applicant has himself contributed to the delay by request- ing extensions of time and for a delay until after the Supreme Court’s decisions in Agraira SCC. Any prejudice to his ability to defend the alle- gations has already occurred and would not be perpetuated by proceeding with the Ministerial Relief decision.

C. Balance of Convenience 29 It is the Applicant’s position that if the Court is satisfied that he has demonstrated a serious issue and irreparable harm, the balance of conve- nience will flow (citing Membreno-Garcia v. Canada (Minister of Employment & Immigration), [1992] 3 F.C. 306, 55 F.T.R. 104 (Fed. T.D.)). The Applicant argues that the balance of convenience favours maintaining the status quo, particularly since the Respondent has delayed his application for almost 13 years and there is no evidence that the Min- ister will be prejudiced if the stay is granted to relieve him of the ongoing abuse of process (citing Turbo Resources Ltd. v. Petro-Canada Inc. [1989 CarswellNat 579 (Fed. C.A.)] at para 27). 30 The Respondent argues that contrary to the Applicant’s submissions, the balance of convenience is a distinct portion of the tripartite test that must be met (citing Nalliah v. Canada (Solicitor General), 2004 FC 1649 (F.C.) at 38, (2004), [2005] 3 F.C.R. 210 (F.C.)). It is the Respon- dent’s position that Canadian society has a compelling interest in having a final decision rendered on issues of terrorism and that the balance of convenience favours the Minister in maintaining its discretion to render its decision, as intended by Parliament.

IV. Analysis A. Irreparable harm remains the essential issue for determination 31 The tripartite test enunciated in Toth v. Canada (Minister of Employment & Immigration) (1988), 86 N.R. 302, 6 Imm. L.R. (2d) 123 (Fed. C.A.) [Toth] governs whether or not to grant a stay. It must be determined that there is a serious issue to be tried, that the Applicant would suffer irreparable harm by reason of his or her deportation, and that the balance of convenience lies in the Applicant’s favour. The Toth Memon v. Canada (Minister of Public Safety) Peter Annis J. 155

test is conjunctive and the Applicant must satisfy each branch of the test to be successful. 32 The Applicant argues that he need only demonstrate a serious issue of an abuse of power by delay in an administrative process in order to suc- ceed on his motion for an interim stay. Once the Court is satisfied that the first factor of the standard tripartite test for an interim stay is met, then based upon the jurisprudence described below, there is no need for the Applicant to demonstrate irreparable harm or the balance of conve- nience for the prohibition order to issue. His argument is set out at para 73 of his memorandum as follows: 73. In this case, the Applicant will suffer irreparable harm if the stay is not granted because the applicant will be subjected to continued abuse as a result of the delay and the prejudice associated with it. In John Doe v. Canada (M.C.I.) the Court granted a stay in the middle of a hearing noting that “a continuance of proceedings may well cause prejudice to both the individual and to the public interest by continuing a process which may be found to be abusive.” Such is the situation in the case at bar. The Applicant’s position is that a continu- ation of the proceedings amounts to an abuse of process. As such, the Applicant should not be subjected to proceedings which are later found to be abusive. To do so would harm the Applicant and the public’s confidence in the fairness of the proceedings in ways which cannot be remedied after the fact. 33 While it is obvious that prejudice by delay is a form of irreparable harm, the Applicant only deals with the prejudice required to demon- strate abuse of process as a factor under the serious issue step of the test. In this regard, he stresses that the Court should not be applying a legal standard of a probability or higher as described in paragraph 37 of his memorandum as follows: 37. With respect to the serious issue, in order to obtain a stay, the Applicant need only show that the application before the Court is not frivolous or vexatious: The guiding principle in granting an interlocutory injunc- tion is the balance of convenience; there is no requirement that before an interlocutory injunction is granted the plaintiff should satisfy the court that there is a “probability”, a “prima facie case” or a “strong prima fa- cie case”: that if the action goes to trial he will succeed; but before any question of balance of convenience can arise the party seeking the injunction must satisfy the court that his claim is neither frivolous nor vexatious; in 156 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

other words that the evidence before the court discloses that there is a serious question to be tried... (Turbo Re- sources Ltd. v. Petro Canada Inc., [1989] 2 F.C. 451 at para. 19). 34 In my view, dealing with the prejudice issue under the serious issue analysis is insufficient for the purposes of establishing irreparable harm under the Toth test. It is beyond contention that the downgrading of the first prong of the tripartite test in an interim application from a “strong prima facie” requirement to a “serious issue” was the recognition that the court’s focus should be on the clear and convincing evidence establishing a probability of irreparable harm between the date of the stay or injunc- tion application and the final order sought by the applicant. A test that the alleged wrong not be “vexatious or frivolous” is a direction to the motions court that the outcome turns on the interim nature of the order, not the probative level of the substantive injury alleged. The limited role of the court at the interlocutory stage was well described by Lord Diplock in American Cyanamid Co. v. Ethicon Ltd., [1975] 1 All E.R. 504 (U.K. H.L.) (adopted in Metropolitan Stores (MTS) Ltd. v. Manitoba Food & Commercial Workers, Local 832, [1987] 1 S.C.R. 110 (S.C.C.) at para 83): It is no part of the Court’s function at this stage of the litigation to try to resolve conflicts of evidence on affidavits as to facts on which the claims of either party may ultimately depend nor to decide difficult questions of law which call for detailed argument and mature consid- erations. These are matters to be dealt with at trial. 35 The fact that an abuse of process argument may be unencumbered by some of the strictures of other doctrines plays no role in changing the essential nature and issue of an interim application (Moulton Contracting Ltd. v. British Columbia, 2013 SCC 26, [2013] 2 S.C.R. 227 (S.C.C.)). 36 Similarly, the fact that an abuse of process for delay requires the ap- plicant to demonstrate significant prejudice, which may be a factor con- sidered under the “serious issue” step, does not exempt normal consider- ation of the prejudice issue for the purposes of irreparable harm. This requires demonstrating with clear and convincing evidence the likelihood that serious prejudice will arise, with the focus being on the period be- tween the stay order and the final determination in the judicial review application, including the issue of alternative remedies. 37 In other words, demonstrating a possibility of significant prejudice on the final order does not meet the requirements of demonstrating irrepara- ble harm on the basis of a probability for the intervening period. Memon v. Canada (Minister of Public Safety) Peter Annis J. 157

B. Guiding Principles on Delay as an Abuse of Process 38 Any application disrupting an administrative process that is underway will be granted only in exceptional circumstances. The exceptional na- ture of the Applicant’s motion in the logic underlying this rule is cap- tured at paragraphs 31 to 33 of the Federal Court of Appeal’s decision in C.B. Powell, excerpts of which are as follows: [31] Administrative law judgments and textbooks describe this rule in many ways: the doctrine of exhaustion, the doctrine of adequate alternative remedies, the doctrine against fragmentation or bifurca- tion of administrative proceedings, the rule against interlocutory judi- cial reviews and the objection against premature judicial reviews. All of these express the same concept: absent exceptional circumstances, parties cannot proceed to the court system until the administrative process has run its course. ... [32] This prevents fragmentation of the administrative process and piecemeal court proceedings, eliminates the large costs and delays associated with premature forays to court and avoids the waste asso- ciated with hearing an interlocutory judicial review when the appli- cant for judicial review may succeed at the end of the administrative process anyway: see, e.g., Consolidated Maybrun, supra at paragraph 38; Greater Moncton International Airport Authority v. Public Ser- vice Alliance of Canada, 2008 FCA 68at paragraph 1; Ontario Col- lege of Art v. Ontario (Human Rights Commission) (1992), 99 D.L.R. (4th) 738 (Ont. Div. Ct.). Further, only at the end of the administra- tive process will a reviewing court have all of the administrative de- cision-maker’s findings; these findings may be suffused with exper- tise, legitimate policy judgments and valuable regulatory experience: see, e.g., Consolidated Maybrun, supra at paragraph 43; Delmas v. Vancouver Stock Exchange (1994), 119 D.L.R. (4th) 136 (B.C.S.C.), aff’d (1995), 130 D.L.R. (4th) 461 (B.C.C.A.); Jafine v. College of Veterinarians (Ontario) (1991), 5 O.R. (3d) 439 (Gen. Div.). Finally, this approach is consistent with and supports the concept of judicial respect for administrative decision-makers who, like judges, have de- cision-making responsibilities to discharge: Dunsmuir v. New Bruns- wick, [2008] 1 S.C.R. 190 at paragraph 48. [33] ... Suffice to say, the authorities show that very few circum- stances qualify as “exceptional” and the threshold for exceptionality is high: see, generally, D.J.M. Brown and J.M. Evans, Judicial Re- view of Administrative Action in Canada (loose-leaf) (Toronto: Can- vasback Publishing, 2007) at 3:2200, 3:2300 and 3:4000 and David J. Mullan, Administrative Law (Toronto: Irwin Law, 2001) at pages 485-494. Exceptional circumstances are best illustrated by the very 158 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

few modern cases where courts have granted prohibition or injunc- tion against administrative decision-makers before or during their proceedings. Concerns about procedural fairness or bias, the presence of an important legal or constitutional issue, or the fact that all parties have consented to early recourse to the courts are not exceptional circumstances allowing parties to bypass an administrative process, as long as that process allows the issues to be raised and an effective remedy to be granted: see Harelkin, supra; Okwuobi, supra at paragraphs 38-55; University of Toronto v. C.U.E.W, Local 2 (1988), 55 D.L.R. (4th) 128 (Ont. Div. Ct.). As I shall soon demonstrate, the presence of so-called jurisdictional issues is not an exceptional cir- cumstance justifying early recourse to courts. [Emphasis added.] 39 To establish an abuse of process due to delay, the Applicant must demonstrate based on an exceptional standard such that the administra- tive process in question is brought into disrepute. This applies to both the issue of unreasonable delay and to whether the delay has significantly prejudiced him. Justice Bastarache, speaking for the Supreme Court ma- jority in Blencoe at paragraph 115, summed up the law with respect to the high standard that must be met before lengthy delays not constituting procedural unfairness are sufficient to establish an abuse of process: [115] I would be prepared to recognize that unacceptable delay may amount to an abuse of process in certain circumstances even where the fairness of the hearing has not been compromised. Where inordi- nate delay has directly caused significant psychological harm to a person, or attached a stigma to a person’s reputation, such that the human rights system would be brought into disrepute, such prejudice may be sufficient to constitute an abuse of process. The doctrine of abuse of process is not limited to acts giving rise to an unfair hearing; there may be cases of abuse of process for other than evidentiary rea- sons brought about by delay. It must however be emphasized that few lengthy delays will meet this threshold. I caution that in cases where there is no prejudice to hearing fairness, the delay must be clearly unacceptable and have directly caused a significant prejudice to amount to an abuse of process. It must be a delay that would, in the circumstances of the case, bring the human rights system into disrepute. [Emphasis added.] 40 Justice Lebel, speaking for the minority in Blencoe, described the threshold for delay for an abuse of process not involving fairness consid- Memon v. Canada (Minister of Public Safety) Peter Annis J. 159

erations in a similar fashion, as one constituting a “shocking abuse,” at paragraph 182: [182] The approach of the courts should change when it appears that the hearing will remain fair, in spite of the delay and when the delay has not risen to the level of a shocking abuse, notwithstanding its seriousness. More limited and narrowly focused remedies would then become appropriate [thereafter referring to a mandamus procedure, or an order for an expedited hearing]. [Emphasis added.] 41 Justice Bastarache at paragraph 122 of Blencoe describes the factors (enumerated by my numbering in the following passage) in determining whether the delay is abusive: [122] The determination of whether a delay has become inordinate depends on [1]the nature of the case and its complexity, [2] the facts and issues, [3] the purpose and nature of the proceedings, [4] whether the respondent contributed to the delay or waived the delay, and [5] other circumstances of the case. As previously mentioned, the deter- mination of whether a delay is inordinate is not based on the length of the delay alone, but on contextual factors, including the nature of the various rights at stake in the proceedings, in the attempt to deter- mine whether the community’s sense of fairness would be offended by the delay. [Emphasis added.] 42 The highlighted portion of paragraph 122 of Blencoe emphasizes the various rights at stake in the proceedings as being factors in attempting to determine whether the community’s sense of fairness would be offended by the delay. The Respondent argues that “other circumstances of the case” play an important role in the security certificate proceedings where it has been clearly determined by the Supreme Court in Agraira that sub- section 34(2) is intended to protect Canada, and that it should not be transformed into an alternative form of humanitarian review (Agraira SCC at paras 86-87). They also argue that the unsettled state of the Min- ister’s test for relief by the series of cases involving Mr. Agraira contrib- uted to the delay in processing the Applicant’s application.

C. Federal Court jurisprudence on delay as an abuse of process 43 In Almrei v. Canada (Minister of Citizenship and Immigration), 2014 FC 1002, 247 A.C.W.S. (3d) 650 (F.C.) [Almrei], Mr. Justice Richard Mosley rejected a motion for an order that the application for leave and for judicial review was premature. The application was for a declaration 160 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

that the question of Mr. Almrei’s admissibility was, among other things, an abuse of process. Mr. Almrei sought an injunction enjoining the Min- ister from finding the applicant inadmissible. The decision by Justice Mosley followed an interim stay order granted by Justice Richard Boivin. 44 Mr. Almrei had been required to defend his admissibility three times since 2001, the first two times on the basis of a flawed procedure, and the third when the claims against him were not reasonable. Mr. Almrei was held in detention for over seven years during these events. After being accepted in February 2012 at the first stage of a humanitarian and com- passionate application, he was required to bring a mandamus application to compel the Minister to make a decision on his request for permanent residence because of the delay. Four days prior to the hearing Mr. Almrei was provided with a procedural fairness letter indicating that the Minister was considering finding him inadmissible under paragraph 37(1)(b) of the Act. Mr. Almrei then brought the application for declaratory and in- junctive relief. 45 Justice Boivin found that the interlocutory application staying the de- termination of Mr. Almrei’s admissibility delayed bringing forward the new allegation for approximately 12 years. Justice Mosley agreed, and also found that the fairness letter misrepresented that there was new in- formation forming the basis of the fresh allegation of inadmissibility which the question had arisen collaterally or incidentally in the security certificate proceedings. He concluded that Mr. Almrei had been undoubt- edly prejudiced, thereby alluding to what was, in essence, an attempt to re-litigate a claim after two failed security certificates had been issued. 46 He also found the public interest in proceeding to determination was not significant when the allegations against the Applicant related to the commission of a passport and other fraudulent documents. Although seri- ous, he concluded they were not of the same order as a crime against humanity, citing Mr. Justice James Russell in Valle Lopes v. Canada (Minister of Citizenship & Immigration), 2010 FC 403, 367 F.T.R. 41 (Eng.) (F.C.) at paragraph 87: [87] Finally, when granting relief for abuse of process, one must bal- ance competing public interests. While it is not necessary to canvass all arguments under this heading, it will suffice to say that there is significant public interest behind the enactment of paragraph 35(1)(a) and the general condemnation of crimes against humanity committed abroad. Those interests militate in favour of getting at the truth and holding those accused of committing such crimes accountable, even Memon v. Canada (Minister of Public Safety) Peter Annis J. 161

though much time has passed. As stated in Al Yamani above, at para- graph 38: [38] While the respondent does not challenge the appli- cant’s assertions that he provided assistance to Canadian authorities, by providing information, it is unlikely that the Canadian public would agree that such assistance should be sufficient to grant an individual a full pardon from such crimes. 47 Justice Mosley also relied upon the decision of Mr. Justice Sean Har- rington in Beltran v. Canada (Minister of Citizenship & Immigration), 2011 FC 516, 204 A.C.W.S. (3d) 602 (F.C.) [Beltran]. This was a case where the Minister’s delay was considered inexcusable and, similarly, the Minister had been aware of all the relevant information for 22 years. At paragraph 54, Justice Harrington reached this conclusion: [54] It is a fundamental principle of natural justice and the rule of law under which we live that a person be given a fair opportunity to answer the case against him. That opportunity has been lost. It was abusive to issue an opinion in 2009 that Mr. Beltran is inadmissible considering that the authorities had been aware of his situation for 22 years. 48 In addition, Justice Mosley was critical that the Minister acted at the last moment effectively pre-empting a judicial hearing on an application for mandamus that may have resulted in a positive remedy for the Mr. Almrei in his efforts to obtain permanent resident status. 49 The learned Judge also found Mr. Almrei’s exceptional circumstances to be relevant — he had been detained under strict custody for over seven years in a maximum security in a provincial remand facility under harsh conditions and thereafter released under very strict limitations. Such treatment exceeded any prison sentence or other punishment that could have been expected had he been charged and convicted for the of- fences that were now being used to serve as a basis for the inadmissibil- ity proceeding. Such facts he concluded engages the liberty interest of the individual under section 7 of the Charter. 50 Justice Mosley was not satisfied that Mr. Almrei had an alternative remedy available to him that was an adequate effective recourse to the allegations against him under paragraph 37(1)(b) of the Act. 51 The Court notes that, despite the foregoing circumstances in Almrei that are of considerably higher probative persuasion than those in the present matter, Justice Mosley emphasized on a number of occasions the 162 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

exceptional nature of the intervening order which he concluded was only met in the final analysis of all the circumstances. 52 The Applicant cites other cases in support of his position. In Tursun- bayev, Mr. Justice James Russell accepted an abuse of process argument at an early stage of the admissibility process. However, it should be noted that this was a case of disguised extradition involving an allegation of bad faith against the Minister. This involves entirely different consid- erations warranting an early intervention than are raised in this matter. United States v. Tollman (2006), 271 D.L.R. (4th) 578, [2006] O.J. No. 3672 (Ont. S.C.J.) (QL), also cited by the Applicant, is another decision concerning an allegation of the Minister’s bad faith involving disguised extradition. 53 More recently in Kanagaratnam (2013), Mr. Justice Michael Manson granted a stay prohibiting a Ministerial delegate from making a decision on whether the applicant posed a danger to the security of Canada, where there had been a twelve year delay between the finding that the applicant faced a risk of torture and the Ministerial delegate’s assessment. It is to be noted that no action whatsoever was taken for 11 years before the Minister took action and the applicant received the CBSA’s position. That case is comparable to those of Beltran and Almrei where there was an inordinate delay in bringing forward what appeared to be a new or abandoned matter, somewhat analogous to the line of reasoning in the doctrine of laches. That is not the case here as there were ongoing processes where the delay relates to the various steps that occurred with- out any sense that the matter had been dropped. 54 In John Doe, Mr. Justice Michael Phelan granted a stay in the middle of a hearing noting that “a continuance of proceedings may well cause prejudice to both the individual and to the public interest by continuing a process which may be found to be abusive.” This was a case where the IRB had admitted exculpatory evidence from several witnesses where the applicant would not be in a position to cross-examine them because the government considered it too costly to require their appearance, which raised a serious issue therefore of procedural fairness. I find no serious procedural fairness issues arising in this matter. 55 In Parekh, the respondent pled guilty to making false representations on his family’s citizenship applications in 2002. The Minister of Citizen- ship and Immigration delayed bringing citizenship revocation proceed- ings for about five years. The Court concluded that there was an abuse of process because, as in this case, the Minister alone bore responsibility for Memon v. Canada (Minister of Public Safety) Peter Annis J. 163

the delay, which was unexplained and unwarranted, the respondents ad- mitted all the relevant facts, the proceeding was not complex, and the delay was not a result of procedural safeguards for the respondent. The Court concluded that the proceedings were inordinate and unconsciona- ble to the point of being oppressive. 56 The Parekh case is distinguishable from the facts in this matter, which concerns inadmissibility proceedings arising from the Applicant’s involvement in a terrorist organization and having been the subject of protracted administrative processes. There was no evidence of the severe prejudice to the Applicant and to that extent it would appear to be an outlier in the cases based on delay to establish abuse of process. In Bel- tran, based on the Blencoe decision, the Court noted at paragraph 36 that “a state caused delay, without more, will not warrant a stay as an abuse of process at common law” and that “there must be proof of significant prejudice.” Certainly in this matter the Applicant is alleging both proce- dural and severe psychological prejudicial consequences.

D. Application to the Present Case (1) Serious Issue (a) Delay 57 The Applicant submits that the process was unreasonably delayed for almost 12 years without any inherent reason for the delay and without the Applicant being responsible for any of the delay. While it is beyond question that the Applicant has been a victim of some unaccounted delay approaching what may be considered unreasonable, I find his submission significantly overstated the length of the delay, or the fact that he partici- pated extensively in the process. 58 There was some unaccounted delay between the period when the Ap- plicant was first interviewed on June 13, 2000, when the Applicant de- scribed his involvement with the MQM-A, and some unstated date in 2003 when CIC provided him the fairness letter enclosing its intended recommendation (approximately three years later). I would estimate the unaccounted delay being two years, if the processing was operating effi- ciently without backlog. The Respondent offered no evidence to explain this delay. 59 However, with respect to the more than five year delay from when the Applicant received his fairness letter in 2003 to the completion of processing the inadmissibility issue through all of the stages of the IRB, 164 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

IAD and leave application ending in December 2008, I find that the de- lay was not untoward and mostly not attributable to the Minister. 60 Thereafter, while there was considerable delay, there is no question that the test to be applied in a Ministerial Relief decision was in flux due to the decisions in the Agraira cases as they progressed through the three court levels to be concluded in the Supreme Court. Justice Mosley of the Federal Court, in setting aside the Minister’s decision in Agraira FC, certified a question that went to the heart of the Minister’s exercise of discretion, i.e. whether the Minister was required to consider any specific factors in assessing whether a foreign national’s presence in Canada would be contrary to the national interest. In doing so, he confirmed that the issue was serious and one of general importance. 61 The decision of the Federal Court of Appeal in Agraira FCA con- firmed the wisdom in holding off on making decisions that were not at least clear on their facts, thereby overturning the Federal Court decision and removing humanitarian and compassionate factors from the test. As soon as leave was granted six months later to appeal the decision of the Federal Court of Appeal to the Supreme Court of Canada, the appropriate test remained in flux until modified by the final decision of the Supreme Court. 62 In the face of the Agraira leave application, the CBSA decided to proceed with the new fairness letter in 2012. It is noted above that situa- tion of delay was explained by the unsettled determination of the Min- ister’s test that remained unresolved by the decision of the Federal Court of Appeal. I think the delay was reasonable in the circumstances up to this point given the complications of proceeding to render decisions based on a standard that was in flux and the subsequent litigation that could arise should that standard be modified and an attempt made to is- sue a new decision. 63 However in doing so, the Minister was aware that leave had been granted to appeal the decision of the Federal Court of Appeal to the Su- preme Court, meaning that the question of the proper test for Ministerial Relief was one of national importance on which there was some doubt about its correctness. There is probably less justification in declining to proceed to make a decision when it had the Federal Court of Appeal de- cision in hand. 64 However, it is important to note that the Applicant appears to have agreed to and contributed to the Minister’s delaying exercise of Ministe- rial Relief. He requested extensions to make submissions twice: on De- Memon v. Canada (Minister of Public Safety) Peter Annis J. 165

cember 18, 2012 and on January 9, 2013. The CBSA granted both re- quests. On February 21, 2013, the Applicant responded to the second CBSA disclosure with further submissions, which it is understood would further delay the Minister’s decision. Most importantly, he requested that a decision by the Minister be delayed until a Supreme Court ruling was issued in Agraira. 65 On June 20, 2013, the Supreme Court released its decision. There is certainly some unaccounted delay on CBSA’s part as it waited until March 10, 2015 (a further 20 months) before providing the third fairness letter to the Applicant. No explanation was provided for this delay. While I expect there may have been a backlog of similar Ministerial Re- lief cases standing in abeyance awaiting the Supreme Court decision in Agraira, without evidence this remains an unexplained delay. 66 In any event, from March 10, 2015 onward, the Applicant contributed in deferring the Minister’s decision. On April 6, 2015, the Applicant re- quested an extension to provide submissions, which CBSA granted on April 8, 2015. The Applicant’s submissions in response to CBSA’s latest disclosure were received on June 9, 2015. It should be noted that it was only at this time that the abuse of process issue was raised. 67 The Applicant thereafter requested a three-week extension to allow for further submissions, which was granted by the CBSA. The Appli- cant’s further submissions were received on July 2, 2015 submitting that “the delay of 13 years was so extreme and the prejudice so severe that the Minister must exercise his discretion and allow the application.” The July 2 submissions are similar to those made in this stay application. 68 If the Minister decides to decline relief in the decision that is the sub- ject of a judicial review application, then the same issues will be central to the application, as are being raised in the underlying application to this stay proceeding. 69 It is also noted that the late filing of the submissions raised new and considerably more complex issues for consideration, which in turn would not have enabled the Minister to provide a target date for the Ministerial Relief decision. 70 Moreover, this case demonstrates some of the unique challenges fac- ing the administrators in this area during the relevant time period. There are obvious quantitative challenges raised by the large number of appli- cations and procedures. In addition, the issues raised were often com- plex, multifaceted and interconnected, not to mention invariably involv- 166 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

ing interventions by the Federal Court, and sometimes concerning questions of national importance. 71 In conclusion, while there was some untoward delay in the processing of the Applicant’s Ministerial Relief application, I do not find that the circumstances of the delay in this case approaches anything described in the cases relied upon by the Applicant or that the delay is of an excep- tional nature, particularly having regard to the serious nature of the inad- missibility allegations made against the Applicant. 72 There is no basis therefore, to conclude that the delay, absent consid- eration of other issues such as serious prejudice to the Applicant or the public interest involving the enjoining of the exercise of Ministerial Re- lief, could give rise to a claim of abuse of process.

(b) Procedural Prejudice to the Applicant 73 The Applicant claims that the most recent fairness letter raised new allegations that the Applicant was involved in the MQM-A in an in-depth way. He analogizes his situation to that in Beltran of the Minister keep- ing information up its sleeve for 20 years to reassess the same informa- tion. He claims that he would have been in a much better position to lead evidence to rebut these allegations had they been raised in previous proceedings. 74 After carefully reviewing the allegations in the three fairness letters, I do not agree that new issues were raised. The Applicant provided a chart selecting the statements in the 2008 recommendation for comparison with statements in the 2015 recommendation, which I set out below: Memon v. Canada (Minister of Public Safety) Peter Annis J. 167

2008 Recommendation 2015 Recommendation Mr. Memon aware of MQM-A’s Given Mr. Memon’s level of in- involvement in violence, as tes- volvement with the MQM-A, tified at IRB hearing that he was which included functioning in a aware of violence, specifically support role to the local presi- fistfights, taking place between dent, his level of education and the MQM factions, and also that period of involvement in Kara- “certain party members had tak- chi, the historical stronghold of en to criminal acts to sustain the organization, it is unreasona- themselves.” Mr. Memon stated ble that Mr. Memon would not in an interview with the CBSA have been aware of the MQM- that although there was no vio- A’s involvement in terrorist ac- lence in his area, he was aware tivities. of instances in other areas. Mr. Memon’s involvement with Mr. Memon voluntarily became the MQM-A is more extensive involved with the MQM-A gain- than he admits, as in IRB testi- ing what he termed official mony he states his membership membership after having already in 1994 resulted from the fact been affiliated with the organi- that “he had done a lot for the zation for two years. He was party and for the country.” promoted to higher responsibili- ties within his local unit, eventu- ally being responsible for activities such as demonstra- tions. He was relied heavily up- on by his unit, including the local president, to whom Mr. Memon functioned in a support capacity. Mr. Memon stated himself that the unit used him extensively, focusing on his high level of education and skills. Given the level of education Mr. Memon had attained prior to be- coming involved in the MQM- A, coupled with the level of support he provided to the or- ganization, it is reasonable to conclude that he was considered 168 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

2008 Recommendation 2015 Recommendation a valuable asset by, at minimum, his local leadership. Mr. Memon significantly com- Mr. Memon consistently dis- mitted to the organization, as he played commitment to the resumed his activities after he MQM-A by resuming his in- was detained and tortured, and volvement after each respective after he had fled Karachi and detention, kidnapping or episode gone to a different part of the of physical abuse. It is clear country. This demonstrates a from the information on record considerable level of commit- that he elevated the needs of the ment and dedication to the organization above his own safe- MQM-A and its goals. ty at the time. Moreover, Mr. Memon continued his involve- ment in the MQM-A even after having to relocate from Karachi to Hyderabad. This action fur- ther demonstrates his commit- ment to the organization as he continued to work for the MQM-A even after leaving his home unit. Mr. Memon provided a broad range of support to the organization, in fact not limited to his local unit, but also in re- lation to operations in the Hy- derabad area. 75 As far as I am able to determine, all three fairness letters are based upon information provided by the Applicant. On that premise alone, I do not see how any issue of a new allegation that takes the Applicant by surprise could possibly arise. 76 I agree that the opinions expressed on the basis of the Applicant’s statements are somewhat more critical of his involvement in the MQM- A, but they do not qualitatively change what the reports say. 77 For example in the upper row, the remarks in 2008 recounting the acknowledgment by the Applicant that certain criminal acts were under- taken by the MQM-A and that violence occurred in other areas form the basis for the conclusion in 2015 that “it is not unreasonable that he would Memon v. Canada (Minister of Public Safety) Peter Annis J. 169

not have been aware of the MQM-A’s involvement in terrorist activities” given that this is the conclusion that must be found by the Minister for inadmissibility. In addition, the statement in 2015 that the Applicant functioned in a support role to the local president because of his high level of education is found elsewhere in the 2008 letter: “Mr. Memon indicated that he served as “support worker” to the unit president, Zaheer Ahmed, due to his level of education.” 78 In the second row, the statement in 2015 that “[he] was relied heavily upon by his unit, including the local president, to whom Mr. Memon functioned in a support capacity,” assuming that is the new allegation being complained of by the Applicant, is supported by his statements to the CBSA. In addition, the fairness letter of 2008 includes similar state- ments, such as “Mr. Memon enjoyed a position of responsibility and trust within the MQM-A, drafting MQM-A propaganda, as well as organizing and leading protests and fundraising drives”. 79 In the circumstances, if the Applicant thought he did not enjoy a posi- tion of responsibility and trust with the president for whom he was a support worker, this is something that ought to have been addressed by him. In fact, he obtained a letter from the MQM International Secretariat for the purpose of his 2013 submissions contradicting this evidence. 80 To the extent that the Applicant thought that the CBSA’s opinion that “he was considered a valuable asset by his local leadership” was not a reasonable inference, his counsel could have challenged this finding as being speculative. In any event, I do not find that the opinion adds any- thing to what was contained in the 2008 fairness letter on this issue. 81 In addition, it appears that the CBSA abandoned the significant nega- tive conclusion in the 2008 application that, “it is likely that Mr. Memon’s membership in support for the organization continued on his arrival to Canada.” Such a conclusion would have strongly supported a denial of relief by the Minister. 82 The third and final finding concerning the Applicant’s “commitment to the organization” is found in the 2008 recommendation. The underly- ing statements of commitment, such as continuing to work after being kidnapped and tortured twice and after fleeing to Karachi in a different part of the country, is found in the 2008 report. I do not see any qualita- tive difference between the statements. 83 Finally, as an overarching response to the Applicant’s submissions, it appears that these new issues were allegedly raised for the first time in the Applicant’s 2015 response. If the process goes forward, the CBSA 170 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

would have the option to withdraw the additional inferences prior to placing the final recommendation before the Minister for consideration. In regard to the procedural unfairness, I conclude that these allegations are premature.

(c) Emotional prejudice of the Applicant 84 The Applicant and his wife have filed affidavits describing emotional, psychological, and practical hardships that they claim arose from the un- certainty surrounding the Applicant’s immigration status in Canada. The principal evidence in support is an assessment by a psychologist diagnos- ing the Applicant as suffering from a “major Depressive Disorder” which he categorizes in the “severe” range and includes significant agitation and suicidal intention. 85 The principal problem with this forensic report (defined as a report obtained for the purpose of litigation) is the absence of any underlying medical records describing a chronic problem over time for which the Applicant has been treated by a physician. The Applicant only met with this particular psychologist for two hour-long meetings prior to the draft- ing of the June 24, 2015 report which was ordered by counsel for the purpose of this and related proceedings. 86 Where claims of severe emotional depression over a very lengthy pe- riod of time are concerned, the Court’s expectation would be that medi- cal information from family practitioners, who if sufficiently concerned would have prescribed appropriate treatment, would have been submitted to the Court. If extremely serious, the Applicant would have been re- ferred to a psychologist or psychiatrist for assessment and treatment. There would have been medical records available from treating physi- cians, hospitals or drugstores, as these are normally provided to the court in litigation were claims are made based upon the severe emotional con- dition of the patient. 87 Relying on the fact that Dr. Weir made no mention of what treatment the Applicant received, I conclude that none was provided over the previ- ous 12 years, or even since 2008 when the Applicant claims that the medical condition first arose. The analysis was based upon a self-report- ing questionnaire. I agree with the Respondent that the Applicant is highly motivated to remain in Canada. Moreover, if the Applicant was susceptible to this type of severe emotional condition, at the sufficiently exceptional level to meet the high threshold of an abuse of process, one would have thought that it would have manifested itself long before 12 Memon v. Canada (Minister of Public Safety) Peter Annis J. 171

years had passed and that it would have required earlier medical attention. 88 I also agree with the Respondent’s submissions that the report ap- pears to have been made to support legal arguments rather than repre- senting a comprehensive analysis and long standing treatment plan. The psychologist offers opinions that the deportation would be “catastrophic” for the Applicant. On the other hand, the physician opines that “where a positive resolution to Mr. Memon’s immigration situation ... of a sense of a secure immigration status in Canada ... a prognosis would be favour- able, especially as they both present as people with considerable inner resilience.” 89 I have expressed my view in the past that the Canadian legal system has extensive experience in dealing with forensic experts testifying on matters relating to technical evidence for the purpose of assisting courts in their determinations (Czesak v. Canada (Minister of Citizenship and Immigration), 2013 FC 1149 (F.C.) at paras 37-40, (2013), 235 A.C.W.S. (3d) 1054 (F.C.)). From that experience, the courts have developed what I would describe as a highly guarded and cautionary view on conclusions of forensic experts which have not undergone a rigorous validation pro- cess under court procedures. This would be all the more so for medical opinions when they are not based upon a pre-existing medical file, as is normally the situation when they are offered. 90 This skepticism is accounted for in an adversarial context, because the court normally faces diametrically opposing opinions from experts. This is particularly the situation where physicians opine on the psycho- logical frailties of the claimant where no objective corroborating evi- dence exists to support the claims found in the medical files upon which the opinion is based. The lack of probative value of such reports is even more so where the physician appears to be advocating on the Applicant’s behalf in the guise of an opinion on the very issues that determine the case. 91 I conclude that the evidence is insufficient to support the Applicant’s claims of severe emotional problems and other hardship beyond those suffered by unsuccessful refugee claimants facing the prospect of being removed from Canada. I am not suggesting in any way that such emo- tional hardship is not likely in a removal case or that there may be trou- bles of anxiety or depression. However, the jurisprudence repeats over and over again that this rarely meets the threshold for serious considera- tion unless demonstrated to be exceptional and usually relating to the 172 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

personal safety of the Applicant upon return to the country of origin, bearing in mind that the Minister is not carrying out an H&C application. 92 In addition, while sympathetic to the situation of the Applicant, I note Dr. Weir’s opinion that the Applicant demonstrates considerable inner resilience. I think it cannot be predicted that these problems are perma- nent, such that the strength of character of the Applicant would prevail upon his return to Pakistan.

(d) Conclusion on Serious Issue 93 The delay in processing the Ministerial Relief application was not ac- ceptable as it exceeded the reasonable norms. However, much of the de- lay was accounted for or explained by the intervening procedures, the extenuating circumstances surrounding the Minister’s legal test under section 34 of the Act and the Applicant’s own contribution to the delay. I cannot find that a serious issue exists and that the delay reaches an op- pressive stage without more supporting evidence. 94 The evidence on prejudice does not support the Applicant’s claim for an abuse of process. The allegations of procedural unfairness do not at- tain a level of a serious issue. Furthermore, in considering an abuse of process claim at the serious issue stage, the Applicant’s claims must be balanced against other factors underlying a Ministerial Relief applica- tion. In particular, the objective of the protection and safety of Canadian society by facilitating removal of foreign nationals who constitute a risk to Canadian safety and security must be considered. This is a factor where the underlying evidence relates to being a member of a terrorist organization. Bearing in mind the exceptional nature of the Applicant’s claim and taking the matter as a whole, compared against the backdrop of the jurisprudence in this area, I conclude that the Applicant has not established that there is a serious issue of an abuse of process.

(2) Irreparable harm and balance of convenience 95 In light of the Court’s preceding analysis on the absence of procedu- ral or emotional, psychological and practical prejudice, the Applicant has not established by clear and probative evidence that he would likely suf- fer irreparable harm in the intervening period until the underlying appli- cation is determined. 96 I also agree with the Respondent’s submission that the delay in ac- companying emotional distress will continue, whether or not the stay is Memon v. Canada (Minister of Public Safety) Peter Annis J. 173

granted until the underlying application for leave and for judicial review is finally determined. 97 Moreover, the Court finds that an alternative remedy exists by the very nature of the Applicant’s latest submissions to the Minister. By rais- ing the issue of abuse of process with similar particulars raised in this matter, this issue will squarely arise in any judicial review application taken from an unsuccessful determination by the Minister. In such cir- cumstances, the Court would be aware of the CBSA’s response to the Applicant’s latest submissions and the Minister’s decision. 98 As a result, not only is there no need for the prohibition application, but by the Minister expediting the relief determination process, which is reasonable in the circumstances, and assuming the two applications would, if necessary, be heard at the same time, the Applicant avoids the risk of greater delay. This is meant for the Applicant to avoid any unto- ward risk of failing to stay the Ministerial Relief, only to occasion further delay as that process would continue to completion and thereafter be the subject of a judicial challenge that may follow from an unsuccessful re- sult. This would meet both parties’ objectives: the Applicant’s desire having a speedy determination of his situation to limit the anxiety and depression caused by delay of the final decision; and the Minister’s de- sire to remove inadmissible claimants not deserving of relief under sub- section 34(2) of the Act as soon as possible. 99 Given the parties’ concern for avoiding further untoward delay, in ad- dition to my conclusions on serious issue and irreparable harm, the bal- ance of convenience would favour the Respondent.

V. Conclusion 100 For all of the foregoing reasons, the motion is dismissed. The Re- spondent did not seek costs and none will be ordered.

Order THIS COURT ORDERS that the motion is dismissed and no costs are ordered. Motion dismissed.