IMMIGRATION LAW REPORTER Fourth Series/Quatri`Eme S´Erie Recueil De Jurisprudence En Droit De L’Immigration VOLUME 8 (Cited 8 Imm

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IMMIGRATION LAW REPORTER Fourth Series/Quatri`eme s´erie Recueil de jurisprudence en droit de l’immigration VOLUME 8 (Cited 8 Imm. L.R. (4th))

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ISSN 0835-3808 ISBN 978-0-7798-4652-8 Printed in Canada by Thomson Reuters

CARSWELL, A DIVISION OF THOMSON REUTERS CANADA LIMITED One Corporate Plaza Customer Relations 2075 Kennedy Road Toronto 1-416-609-3800 Toronto, Ontario Elsewhere in Canada/U.S. 1-800-387-5164 M1T 3V4 Fax 1-416-298-5082 www.carswell.com E-mail www.carswell.com/email Ramon Alcaraz v. Canada (MCI) 175

[Indexed as: Ramon Alcaraz v. Canada (Minister of Citizenship & Immigration)] Luis Alcides Ramon Alcaraz, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-8451-11 2012 FC 639 Donald J. Rennie J. Heard: May 16, 2012 Judgment: May 24, 2012 Immigration and citizenship –––– Refugee protection — Removal — Pre- Removal Risk Assessment (PRRA) — Miscellaneous –––– Applicant, citizen of Mexico, and partner E fled Mexico because they feared persecution due to sexual orientation and because applicant’s father was head of local drug cartel — Applicant and partner filed for refugee status in Canada in 2008 — Refu- gee Protection Division (RPD) rejected claims on grounds of credibility and state protection — Applicant married Canadian after he and E separated — Ap- plicant filed Pre-Removal Risk Assessment (PRRA) application separately from E and included translated birth certificate and parents’ marriage certificate to prove he was son of drug cartel leader — Officer refused PRRA application — Applicant applied for judicial review of officer’s decision — Application granted — Officer made decision without reviewing record and without regard to evidence in record — Applicant and E had separated by time they submitted respective PRRA applications — Officer did not mention why applicant’s supporting documents were rejected — Officer relied entirely on RPD’s decision for summary of facts — Omissions, coupled with officer’s erroneous statement that applicant and E were still spouses, created impression that officer failed to review application in its entirety and that relevant evidence in file was not considered — Matter was referred back for reconsideration before different PRRA officer. Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 112 — pursuant to

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

Bola Adetunji, for Applicant 176 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

Margherita Braccio, for Respondent

Donald J. Rennie J.:

1 The applicant seeks judicial review of a decision of Senior Immigra- tion Officer L. Zucarelli (Officer), dated October 15, 2011, refusing the applicant’s Pre-Removal Risk Assessment (PRRA) application pursuant to section 112 of the Immigration and Refugee Protection Act, SC 2001, c 27 (IRPA). For the reasons that follow the application is granted.

Facts 2 The applicant is a citizen of Mexico. He and his partner at the time, Eric Castillo Ramirez, fled Mexico in 2008 because they feared persecution based on sexual orientation and based on the applicant’s relationship to his father. Before the Refugee Protection Division (RPD) the applicant testified that his father was the head of a drug cartel in Juarez and has been in prison since June 2001. In 2005, the applicant was pressured to assist the drug cartel in its activities by communicating with his father in prison and he was threatened if he did not comply. He fled Mexico City to Villa Hermosa as a result, where he met Eric in May 2006. 3 The applicant also testified that he and Eric were attacked by four armed men in April 2008 and again ordered to assist in communicating with the applicant’s father. The applicant tried to report this incident to the Attorney General’s office and to the General Secretary of Public Se- curity, but neither office would assist him. The applicant was approached again in July 2008 and was told that the only way to be safe was to coop- erate, that there were orders to execute Eric to force the applicant to comply. The applicant and Eric also both lost their jobs at a bank because of their connection to the applicant’s father. They fled to Canada in October 2008 and made claims for refugee protection on April 3, 2009. 4 The RPD refused the applicant’s and Eric’s refugee claims on Febru- ary 4, 2011, on grounds of credibility and state protection. The RPD found that the applicant had not presented credible evidence that he was the son of a drug cartel leader, nor that he and Eric faced persecution in Mexico on the basis of their sexual orientation. 5 The applicant submitted his PRRA application, separately from Eric, since they were no longer in a relationship. In his application he indicated that he was now married to Philip Dale Anthony, a Canadian citizen. The applicant was not assisted by counsel in preparing and submit- Ramon Alcaraz v. Canada (MCI) Donald J. Rennie J. 177

ting his PRRA application and there is a dispute between the parties regarding the documents that were submitted as part of the application. 6 By letter dated October 15, 2011, the Officer refused the applicant’s PRRA application, along with Eric’s PRRA application. The Officer refers to the applicant and Eric as common-law spouses in the Notes to File and the decision. 7 The Officer noted that only new evidence arising after the RPD’s decision could be considered. The Officer stated that the applicant and Eric provided several news articles and a magazine in Spanish, but had not provided translations into English or French and therefore they were not considered. 8 After reviewing the background facts and the RPD decision the Of- ficer found that the risks identified in the application were essentially the same as those found not to be credible by the RPD. The Officer noted that reiteration of a risk scenario found not credible, “unaccompanied by objective corroborative evidence, neither overcomes the credibility concerns of the RPD nor provides sufficient evidence of a forward-looking risk to the applicants.” 9 The Officer noted that the applicant and Eric provided country reports and articles but did not link this general documentary evidence to their personal circumstances. The Officer then reviewed general documentary evidence on state protection in Mexico, concluding that state protection is adequate. The application was therefore refused.

Standard of Review and Issue 10 The issue whether the Officer’s decision is unreasonable because it was made without regard to relevant evidence is to be assessed against a standard of reasonableness. It may be, however, that whereas in this case, the Officer did not consider pertinent evidence at all, the decision is to be reviewed on the basis of correctness. This question need not be determined for the purposes of this application as the decision in question cannot be sustained even when assessed on the basis of the lower standard of reasonableness.

Analysis 11 The applicant’s core submission relates to the alleged failure of the Officer to consider evidence submitted as part of the PRRA application. These include the applicant’s birth certificate and his parents’ marriage certificate, as well as photographs, all of which prove that he was in fact 178 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

the son of a drug cartel leader. The applicant also argues that the Officer erroneously stated that none of the submitted articles were translated, as translations were provided. The respondent counters these arguments with reference to affidavits from the officer and from Canada Border Services Agency (CBSA) Removals Officer, I. Pachynskyy, as well as the Certified Tribunal Record, to demonstrate that most of the documents alleged to have not been considered were not actually before the Officer in her decision. 12 However, the application should be granted on the basis that the Of- ficer made her decision without reviewing the record before her and without regard to the evidence that was in the record. The applicant and Eric had separated by the time they submitted their PRRA applications. Their applications were submitted separately and each application included statements that they were no longer common-law spouses. The applicant’s application clearly identified Philip Dale Anthony as the applicant’s spouse in several places. 13 While the applicant’s marital status was not pertinent to the PRRA determination this error provides context to the central allegation that the Officer did not, and could not have, reviewed the application in its entirety before rendering her decision. 14 The applicant submitted translations of his birth certificate and his parents’ marriage certificate with his PRRA application. These documents were relevant as they responded directly and in a material way to the RPD’s finding that the applicant had not established his relationship to Alcides Roman Magana, the drug cartel leader. 15 While the translated version of the marriage and birth certificates appear in the record, the applicant (likely inadvertently) failed to submit copies of the original documents with the translations which would have meant these documents could not be given any probative value. How- ever, the Officer makes no mention of the translations, even to explain why they could not be considered. In addition, the Officer made no reference in her decision to the written narratives of the applicant or Eric, instead relies entirely on the RPD decision for her summary of the facts. I note as well that the affidavit evidence as to what was before the PRRA Officer at the time of the decision changed and was at variance with the content of the certified tribunal record. 16 These omissions, coupled with the Officer’s erroneous statement that the applicant and Eric were still spouses, creates a strong impression that Ramon Alcaraz v. Canada (MCI) Donald J. Rennie J. 179 the Officer failed to review the application in its entirety and that relevant evidence in the file was not considered.

Judgment THIS COURT’S JUDGMENT is that the application for judicial review is granted. The matter is referred back to Citizenship and Immigra- tion Canada for reconsideration before a different Pre-Removal Risk As- sessment officer. There is no question for certification. Application granted; matter remitted for redetermination. 180 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

[Indexed as: Es-Sayyid v. Canada (Minister of Public Safety & Emergency Preparedness)] Al-Munzir Es-Sayyid, Appellant and The Minister of Public Safety and Emergency Preparedness, Respondent Federal Court of Appeal Docket: A-483-11 2012 FCA 59 Carolyn Layden-Stevenson, Johanne Gauthier, David Stratas JJ.A. Heard: February 16, 2012 Judgment: February 20, 2012* Immigration and citizenship –––– Exclusion and removal — Removal from Canada — Removal orders — General principles –––– Applicant arrived in Canada at age of 7 with his family in 1996 — Applicant was granted refugee status in 2003 — In 2009, refugee was deemed inadmissible to Canada as result of numerous criminal convictions for incidents taking place beginning in 2004 — Board determined applicant to be danger to Canada, and issued removal order — Applicant’s application for judicial review and stay was dismissed — Applicant appealed — Appeal dismissed — Applicant’s allegation that there was unconscious bias on part of judge was without any support whatsoever — Any fully-informed, reasonable person would conclude that judge considered material before him and decided matter before him in open-minded, independent and impartial way. Cases considered: American Cyanamid Co. v. Ethicon Ltd. (1975), [1975] 2 W.L.R. 316, 119 Sol. Jo. 136, [1975] 1 All E.R. 504, [1975] F.S.R. 101, [1975] R.P.C. 531, [1975] A.C. 396, 1975 UKHL 1 (U.K. H.L.) — followed Canada (Solicitor General) v. Subhaschandran (2005), 2005 FCA 27, 2005 Car- swellNat 184, 2005 CarswellNat 1129, (sub nom. Subhaschandran v. Canada (Solicitor General)) 249 D.L.R. (4th) 269, 2005 CAF 27, 50 Imm. L.R. (3d) 119, 331 N.R. 182, (sub nom. Subhaschandran v. Canada

*Appeal refused at Es-Sayyid v. Canada (Minister of Public Safety and Emergency Preparedness) (2012), 2012 CarswellNat 3811, 2012 CarswellNat 3812 (S.C.C.). Es-Sayyid v. Canada 181

(Solicitor General)) [2005] 3 F.C.R. 255, [2005] F.C.J. No. 107 (F.C.A.) — referred to Committee for Justice & Liberty v. Canada (National Energy Board) (1976), [1978] 1 S.C.R. 369, 68 D.L.R. (3d) 716, 9 N.R. 115, 1976 CarswellNat 434, 1976 CarswellNat 434F, [1976] S.C.J. No. 118, [1976] A.C.S. No. 118 (S.C.C.) — followed Janssen-Ortho Inc. v. Apotex Inc. (2009), 2009 FCA 212, 2009 CarswellNat 1851, 392 N.R. 71, 75 C.P.R. (4th) 411, 2009 CarswellNat 5168, 2009 CAF 212, [2009] F.C.J. No. 730 (F.C.A.) — followed Mahjoub v. Canada (Minister of Citizenship & Immigration) (2011), 2011 Car- swellNat 4269, 2011 FCA 294, 2011 CAF 294, 2011 CarswellNat 5200, 341 D.L.R. (4th) 681, (sub nom. Mahjoub, Re v.) 426 N.R. 49, 4 Imm. L.R. (4th) 1 (F.C.A.) — referred to National Justice Compania Naviera SA v. Prudential Assurance Co. (1993), [1993] F.S.R. 563, (sub nom. “Ikarian Reefer” (The)) [1993] 2 Lloyd’s Rep. 68 (Eng. Comm. Ct.) — referred to R. v. Abbey (1982), [1982] 2 S.C.R. 24, 138 D.L.R. (3d) 202, 43 N.R. 30, 39 B.C.L.R. 201, 29 C.R. (3d) 193, 68 C.C.C. (2d) 394, [1983] 1 W.W.R. 251, 1982 CarswellBC 230, 1982 CarswellBC 740, [1982] S.C.J. No. 59 (S.C.C.) — followed R. v. Mohan (1994), 18 O.R. (3d) 160 (note), 29 C.R. (4th) 243, 71 O.A.C. 241, 166 N.R. 245, 89 C.C.C. (3d) 402, 114 D.L.R. (4th) 419, [1994] 2 S.C.R. 9, 1994 CarswellOnt 1155, 1994 CarswellOnt 66, EYB 1994-67655, [1994] S.C.J. No. 36 (S.C.C.) — followed R. v. S. (R.D.) (1997), 161 N.S.R. (2d) 241, 477 A.P.R. 241, 151 D.L.R. (4th) 193, 118 C.C.C. (3d) 353, 1997 CarswellNS 301, 1997 CarswellNS 302, 10 C.R. (5th) 1, 218 N.R. 1, 1 Admin. L.R. (3d) 74, [1997] 3 S.C.R. 484, [1997] S.C.J. No. 84 (S.C.C.) — considered R. v. Teskey (2007), 364 N.R. 164, 404 W.A.C. 361, 74 Alta. L.R. (4th) 1, 2007 CarswellAlta 750, 2007 CarswellAlta 751, 2007 SCC 25, 47 C.R. (6th) 78, [2007] 8 W.W.R. 385, 280 D.L.R. (4th) 486, 220 C.C.C. (3d) 1, 412 A.R. 361, [2007] 2 S.C.R. 267, [2007] S.C.J. No. 25 (S.C.C.) — referred to RJR-MacDonald Inc. v. Canada (Attorney General) (1994), [1994] 1 S.C.R. 311, 1994 CarswellQue 120F, 1994 CarswellQue 120, 54 C.P.R. (3d) 114, (sub nom. RJR-MacDonald Inc. c. Canada (Procureur général)) 164 N.R. 1, (sub nom. RJR-MacDonald Inc. c. Canada (Procureur général)) 60 Q.A.C. 241, 111 D.L.R. (4th) 385, EYB 1994-28671, [1994] A.C.S. No. 17, [1994] S.C.J. No. 17 (S.C.C.) — followed Roberts v. R. (2003), 2003 SCC 45, 2003 CarswellNat 2822, 2003 CarswellNat 2823, 19 B.C.L.R. (4th) 195, [2004] 2 W.W.R. 1, (sub nom. Wewayakum Indian Band v. Canada) 309 N.R. 201, (sub nom. Wewayakum Indian Band v. Canada) [2003] 2 S.C.R. 259, 231 D.L.R. (4th) 1, 7 Admin. L.R. (4th) 1, 40 C.P.C. (5th) 1, (sub nom. Wewaykum Indian Band v. Canada) [2004] 1 182 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

C.N.L.R. 342, REJB 2003-47809, (sub nom. Wewaykum Indian Band v. Canada) [2003] S.C.J. No. 50 (S.C.C.) — considered Tesoro v. Canada (Minister of Citizenship & Immigration) (2005), 2005 Car- swellNat 1083, 2005 FCA 148, 2005 CarswellNat 2049, 334 N.R. 306, 2005 CAF 148, [2005] 4 F.C.R. 210, [2005] F.C.J. No. 698 (F.C.A.) — referred to Toth v. Canada (Minister of Employment & Immigration) (1988), 86 N.R. 302, 6 Imm. L.R. (2d) 123, 1988 CarswellNat 64, 1988 CarswellNat 1571, [1988] F.C.J. No. 587 (Fed. C.A.) — followed Zundel v. Canada (Minister of Citizenship & Immigration) (2004), 2004 Car- swellNat 4262, 2004 FCA 394, 2004 CAF 394, 2004 CarswellNat 4749, (sub nom. Z¨undel, Re) 331 N.R. 180, [2004] F.C.J. No. 1982 (Fed. C.A.) — referred to Statutes considered: Federal Courts Act, R.S.C. 1985, c. F-7 Generally — referred to Immigration and Refugee Protection Act, S.C. 2001, c. 27 Pt. 1, Div. 8 — referred to s. 72(2)(e) — considered s. 75(2) — referred to Rules considered: Federal Courts Rules, SOR/98-106 R. 2 — considered R. 52.2 — considered R. 52.2(2) — referred to R. 53(1) — considered

APPEAL by applicant from judgment, reported at Es-Sayyid v. Canada (Minister of Public Safety & Emergency Preparedness) (2011), [2011] F.C.J. No. 1816, 2011 CF 1489, 2011 FC 1489, 2011 CarswellNat 5443, 2011 Car- swellNat 5840 (F.C.), dismissing applicant’s application for judicial review and stay of removal order.

Barbara Jackman, Sarah L. Boyd, for Appellant Ian Hicks, for Respondent

Per curiam:

1 The appellant, a Convention refugee, wants to remain in Canada. The Minister disagrees. He issued a danger opinion: the appellant is a danger to the public and would not be at risk if returned to his country of origin Es-Sayyid v. Canada Per curiam 183

because of changed country conditions. Based on this danger opinion, the Minister intends to enforce a removal order against the appellant. 2 In response, the appellant filed an application for leave and judicial review of the danger opinion in the Federal Court. He also moved for a stay of the removal order. 3 On the stay motion, the parties filed evidence and written submissions. Oral submissions were received by way of teleconference. The Federal Court (per Justice Shore) denied the stay: [Es-Sayyid v. Canada (Minister of Public Safety & Emergency Preparedness)] 2011 FC 1489 (F.C.). This is an appeal from that decision. 4 In this appeal, the appellant seeks to quash the denial of the stay on the basis that the judge is biased. The appellant does not suggest that the judge is biased in all cases. Indeed, the appellant stated in this Court that the judge is conscientious and takes each case seriously. Rather, the appellant says that the judge has a bias only in a limited category of cases œ this case falling within it œ namely cases where criminality is involved. Further, the judge’s bias is said to be “unconscious,” stemming from a “fixation” about “enforcement.” 5 For the reasons that follow, we would dismiss the appeal.

A. The stay motion in the Federal Court 6 In the immigration context, the leading case on stays is Toth v. Canada (Minister of Employment & Immigration) (1988), 86 N.R. 302 (Fed. C.A.). Although pre-dating the Supreme Court’s seminal stay decision in RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311 (S.C.C.), Toth is not inconsistent with that decision, as both are based on American Cyanamid Co. v. Ethicon Ltd., [1975] A.C. 396 (U.K. H.L.). 7 To grant a stay, the Court must be convinced that a serious issue exists, irreparable harm would result if the removal is not stayed, and the balance of convenience favours staying the removal. The test is conjunc- tive. All three branches must be satisfied. 8 We shall set out a brief summary of the facts relevant to the parties’ arguments concerning the stay motion in the Federal Court in order to situate the issues that the judge had to consider. 9 At the time of the stay motion, the appellant was twenty-two years of age and has been in Canada since he was seven. 184 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

10 Central to the appellant’s submissions on the stay motion was his allegation that he faces danger if he were removed from Canada and sent back to Egypt. This danger stems from his parents’ persecution in Egypt, including instances of extrajudicial detention and torture. While out of Egypt, his father was convicted in absentia for ties to terrorist groups. Ultimately, the appellant and his family fled to Canada and claimed refugee protection. Today, the appellant says he has no relationship with his parents’ extended family, and has no memory of ever living in Egypt. Some of his close relatives are now naturalized Canadians. 11 Among other things, the appellant contended that although the regime in Egypt had changed, the old security apparatus remains and poses a threat to the appellant. 12 In response to the stay motion, the Minister emphasized the appellant’s criminal record in Canada. Over the last seven years, the appellant was convicted of armed robbery, robbery, conspiracy to commit robbery, theft, carrying a concealed weapon, assault, possession of heroin while incarcerated, uttering threats, possession of property obtained by crime, and obstructing a police officer. This is only a partial summary of the convictions. Some victims were female escorts and patrons at a private club. Weapons included a knife and a shotgun. 13 The Minister, relying on the danger opinion, submitted in the Federal Court that the appellant no longer has a well-founded fear of persecution in Egypt and no longer faces a risk of harm in Egypt. In the Minister’s view, the regime in Egypt has been overthrown, members of the group Al Jihad (of which the appellant’s father was allegedly once a member) have been released from prison, and arrests currently happening in Egypt do not involve family members of persons considered to be former politi- cal dissidents. 14 As stated earlier, the parties filed their materials and written evidence. The stay motion came before the judge. A teleconference hearing took place. 15 At the outset of the teleconference hearing, the appellant alleged that the judge was biased in cases involving criminality. He asked the judge to recuse himself. At this time, the appellant referred only to statistics compiled by counsel concerning the Minister’s success rate in cases such as this. 16 Although it appears that an opinion report (the “opinion”) analyzing the judge’s cases was in preparation, it had not been finalized. Therefore, it was not filed before the judge in support of the allegation of bias. Es-Sayyid v. Canada Per curiam 185

17 After receiving the parties’ oral submissions on whether he should recuse, the judge declined to recuse himself. He assured counsel that he was not biased and that he approached each matter with an open mind. 18 After receiving the parties’ oral submissions on the merits of the matter, the judge reserved for a short time. Ultimately, he accepted the Min- ister’s position and dismissed the stay motion, finding that none of the branches of the test for a stay had been met. 19 In this Court, the appellant appeals from the refusal of the stay.

B. Events before the hearing of this appeal 20 The appellant sought an interim stay in this Court, preventing his removal from Canada pending the disposition of this appeal. In support of this, the appellant filed the opinion that had been under preparation. This Court granted the interim stay by order dated January 6, 2012. 21 The appellant has included the opinion in the appeal book. At the hearing of this appeal, this Court expressed concern that it should not have been included because it did not form part of the evidentiary record before the Federal Court and considered by the judge. In response, the appellant attempted to justify its inclusion, relying upon time pressures, the quick pace of the matter, and the lack of advance notice about the identity of the judge hearing the stay motion in the Federal Court. 22 The presence of the opinion in the motion record for the interim stay does not mean that it can be included in the appeal book. Normally only those materials that were before the Federal Court can be included in the appeal book. 23 The appellant did not bring a formal motion to include the opinion as fresh evidence in this appeal, though some of his submissions can be taken as a plea to consider it on that basis. We need not consider whether the opinion could meet the test for fresh evidence because we find later in these reasons that the opinion is inadmissible and, in any event, owing to its flaws, is of no assistance to us on the issues in this appeal. 24 Also filed for the first time on appeal was an affidavit attaching De- partment of Justice submissions in nine other cases. Like the opinion, it should not have been included in the appeal book without bringing a motion for fresh evidence. The affidavit is inadmissible. 186 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

C. The bias allegations 25 As mentioned earlier, in this Court, the appellant again alleges bias. He relies on three particular grounds: (1) The judge is unconsciously biased in cases such as this. Here, the appellant offers the opinion in support; (2) The judge created a reasonable apprehension of bias by copying into his reasons dismissing the stay motion most of the Minister’s written submissions, without attribution; and (3) The judge created a reasonable apprehension of bias by delving far too deeply into the merits of the matter, rather than engaging in the normally cursory examination done under the “arguable case” branch of the test for granting a stay. The appellant says that these three grounds support and reinforce each other and must lead to the conclusion that the judge should have recused himself.

D. Jurisdictional considerations 26 The parties agree that there are severe jurisdictional restrictions on this Court hearing appeals in matters such as this. 27 The decision under appeal is an interlocutory decision and, except in well-defined, narrow circumstances, appeals are not available. Paragraph 72(2)(e) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the “Act”) bars an appeal from an interlocutory judgment of the Federal Court. Paragraph 72(2)(e) appears in Division 8 of the Act. Provisions in Division 8, such as paragraph 72(2)(e), prevail over any inconsistent provisions of the Federal Courts Act, R.S.C. 1985, c. F-7, including the provisions concerning appeals: subsection 75(2) of the Act. 28 The well-defined, narrow circumstances are where a judge refuses to exercise jurisdiction to decide the matter (Canada (Solicitor General) v. Subhaschandran, 2005 FCA 27 (F.C.A.)) and where there is a reasonable apprehension of bias on the part of the judge (Zundel v. Canada (Minister of Citizenship & Immigration), 2004 FCA 394 (Fed. C.A.)). However, this Court does not have jurisdiction to hear appeals based on submissions, even submissions that appear to possess considerable merit, that errors of law have been committed (Mahjoub v. Canada (Minister of Citizenship & Immigration), 2011 FCA 294 (F.C.A.)). 29 In our view, based on these authorities, we find that this Court has jurisdiction to hear the appellant’s appeal based on the ground that the Es-Sayyid v. Canada Per curiam 187

judge was unconsciously biased and that his copying of the Minister’s written submissions without attribution created a reasonable apprehension of bias. These are the first and second of the three grounds for appeal set out above. 30 The jurisdiction of this Court to consider the third ground raised by the appellant is more problematic. To reiterate, this was the judge’s excessive delving into the merits of the matter under the arguable case branch of the stay test. 31 Based on the reasons written by the judge, the judge did engage in a microscopic examination of the merits of the matter under the arguable case branch of the test, embarking upon twenty-four detailed paragraphs of each of the appellant’s arguments concerning the danger assessment and a further eight detailed paragraphs concerning the risk assessment. Subject to certain well-defined exceptions, not present here, this is not the approach called for under the Toth test for a stay. 32 In future cases, the approach followed by the judge should be avoided. Further, in the leave application in this case, the judge hearing the matter should disregard the judge’s microscopic examination of the merits of the matter under the arguable case branch of the test. 33 The appellant submits that the judge’s approach is indicative of bias. To us, this is not a submission about bias. Instead, it smacks of a submission about the merits of the judge’s decisionmaking, a matter that cannot be appealed to this Court. 34 Therefore, remaining before us are two grounds offered by the appellant in support of bias, a matter that can be appealed to this Court. To reiterate, these are the grounds based on unconscious bias and the unat- tributed copying in the reasons.

E. Analysis 35 The parties agree that the following test applies: [T]he apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information... [The] test is “what would an informed person, viewing the matter realistically and practically-and having thought the matter through- conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly.” (Committee for Justice & Liberty v. Canada (National Energy Board) (1976), [1978] 1 S.C.R. 369 (S.C.C.) at page 394.) 188 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

(1) Alleged unconscious bias by the judge 36 As mentioned previously, the opinion, authored by a law professor, has been offered in support of this ground. 37 The opinion examines 54 of the judge’s decisions in this area and purports to analyze them, placing particular emphasis on their outcomes, not on whether they were well-founded on the facts and the law. Ulti- mately, the opinion concludes that “it is more likely than not that [the judge] will enter a courtroom in these kinds of cases without the kind of open mind that is needed to give a fair hearing to both parties.” 38 As the Supreme Court has said, an allegation of bias of the sort made here “calls into question not simply the personal integrity of the judge, but the integrity of the entire administration of justice”: R. v. S. (R.D.), [1997] 3 S.C.R. 484 (S.C.C.) at paragraph 113. 39 There is a strong presumption that judges will carry out their duties properly, and with integrity: S. (R.D.), supra at paragraph 32 per L’Heureux-Dub´e J. and McLachlin J. (as she then was), and at paragraphs 116-17 per Major J.; R. v. Teskey, 2007 SCC 25, [2007] 2 S.C.R. 267 (S.C.C.)per Abella J.; Roberts v. R., 2003 SCC 45, [2003] 2 S.C.R. 259 (S.C.C.) per McLachlin C.J. This presumption can be rebut- ted only by a “serious” and “substantial” demonstration made by “con- vincing evidence”: Wewaykum, supra at paragraph 76; S. (R.D.), supra at paragraph 32. 40 The opinion offered in support of this allegation of bias falls well short of the mark. In fact, in these circumstances, for the reasons set out below, the opinion is inadmissible and, in any event, no weight can be accorded to it. 41 First, the opinion is inadmissible. Expert evidence is admissible when it is “necessary in the sense that it provide[s] information ‘which is likely to be outside the experience and knowledge of a judge’”: R. v. Mohan, [1994] 2 S.C.R. 9 (S.C.C.), citing R. v. Abbey, [1982] 2 S.C.R. 24 (S.C.C.). Stripped to its essence, the opinion merely summarizes legal decisions, offers legal submissions on those decisions, and then expresses the author’s personal views on the ultimate issue that is for this Court to decide, namely whether there is a reasonable apprehension of bias. In actuality, the opinion is analogous to a memorandum of fact and law. It fails the Mohan test. 42 Second, at the hearing, we drew to the attention of counsel that Rule 52.2 of the Federal Courts Rules, SOR/ 98-106 had not been followed. Es-Sayyid v. Canada Per curiam 189

That Rule sets out an exacting procedure that must be followed for the admission of expert evidence, a procedure that, among other things, is designed to enhance the independence and objectivity of experts on whom the courts may rely: see Rule 52.2(2) and the Code of Conduct for Expert Witnesses in the Schedule to the Rules. 43 Third, and related to the non-compliance with Rule 52.2, we have grave concerns about the objectivity and independence of the opinion. There has been much judicial commentary on the desirability of experts being independent of the parties and objective and impartial in their opinions: see, for example, National Justice Compania Naviera SA v. Prudential Assurance Co., [1993] 2 Lloyd’s Rep. 68 (Eng. Comm. Ct.), at pages 81-82. Some of the schedules to the opinion reveal editorial comments about some of the decisions using language that is gratuitous, intemperate and ideological. Further, the opinion expresses dislike for some of the jurisprudence of the Federal Court and this Court. This colours the opinion’s assessment of the judge’s decisions, many of which follow this jurisprudence. 44 Fourth, this opinion is in draft form and is unsigned. 45 Quite aside from admissibility, we can accord this opinion no weight. The opinion is a statistical analysis by someone with no statistical exper- tise of 54 cases decided by the judge between 2005-2010 involving “cases in which criminality was a relevant feature of the immigration or refugee law issues in the case.” The limitations of statistics are well- known. Even in the specific areas where statistics are acknowledged to be useful (not here), the degree of usefulness is linked to the scientific methodology followed and the intellectual rigour used in their compila- tion and analysis. Here, the lack of acceptable methodology and intellectual rigour, along with several obvious errors, reduces the weight of this opinion to naught. There are many examples, but a few will suffice: • The 54 cases that make up the statistical analysis were found by a student acting for counsel for the appellant. The law professor did not undertake his own case law research. • The opinion does not examine all of the judge’s relevant decisions since appointment. It is unknown why the 2005-2010 period was chosen and whether all of the relevant decisions of the judge in that period were examined. We were advised at the hearing that the 54 decisions were gathered from an electronic database. How- ever, counsel for the appellant acknowledged that this database may not include all of the judge’s decisions on stay motions. 190 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

• A number of the 54 decisions are not analogous to this case, i.e., a number do not concern stays. One of the cases does not even involve criminality. • The opinion does not say that any of the 54 decisions was wrongly decided on the facts and the law. No attempt was made to review the records of the cases in order to see whether the judge reached fair and arguable outcomes. • The opinion is internally inconsistent. There are many examples of this, but one will suffice. The opinion tells us that the statistics on the 54 cases are “impossible to ignore,” it later tells us that the 54 cases cannot be used to “establish actual bias per se,” and then it tells us that only one example of “problematic judging” is enough to establish bias. • The opinion alleges that the judge is biased because the judge uses the balance of convenience branch of the test and the existence of criminality to “zealously and rhetorically deepen the lack of merit in the motion.” Far from being an example of bias, this is an example of adherence to a statement by this Court that the protection of the Canadian public is a paramount factor under the balance of convenience branch: Tesoro v. Canada (Minister of Citizenship & Immigration), 2005 FCA 148 (F.C.A.). On other occasions, the opinion does not take into account the law that the judge must consider, law that results in relief being granted only exception- ally, regardless of the judge deciding the matter. In this regard, the opinion does not consider the decisions of other judges deciding matters such as this, nor does it consider the success rate of parties before those other judges. • The opinion alleges that the judge applies a test more favourable to the Minister on the “serious issue” branch of the test for a stay. In support of this, the opinion notes that in one case brought by the Minister, the judge used the expression “not frivolous or vexa- tious” rather than the expressions “serious issue,” “arguable issue,” and “arguable case,” expressions that are used by the judge in cases brought by individuals. But often the particular expression used in reasons by a judge is influenced by the expression used by the parties in their submissions. And, as those familiar with the law in this area know, these terms are often used interchangeably. Es-Sayyid v. Canada Per curiam 191

• The opinion suggests that the judge is biased in his treatment of questions proposed for certification. That serious allegation is based on only ten cases, and no evidence is offered to suggest that any of the questions proposed in those cases met the test for certification. From this, the opinion concludes that the judge does not want to be judged and “does not have an expansive enough view of law and of the world.” This pattern of reasoning in the opinion œ slight evidence, questionable analysis, extreme conclusion œ happens at several places in the opinion. 46 Our rejection of the opinion œ for many reasons œ leaves the appellant’s allegation of unconscious bias on the part of the judge without any support whatsoever. Therefore, we reject this allegation. 47 Before leaving this issue, we wish to make three final comments. 48 First, we note that because the opinion states that bias was most apparent on stay motions, we examined those cases with particular attention. We saw nothing in them that would give the informed and reasonable person, viewing the matter realistically and practically, any reason to think that the judge decided in a biased way. 49 Second, counsel for the appellant urged us, regardless of the weight we might give to the opinion, to consider the statistics concerning the outcomes reached by the judge. In our view, such statistics, without more, are of no probative value on the issue of bias. 50 Finally, the Supreme Court has said that alleging bias is “a serious step that should not be undertaken lightly”: S. (R.D.), supra at paragraph 113. Given the harm caused to the administration of justice when unsub- stantiated allegations are made, and given the serious shortcomings of the opinion tendered in this case, we cannot help but express our deep disappointment.

(2) The judge’s reasons 51 The appellant is correct that the judge copied into his decision, almost verbatim, much of the Minister’s written submissions, without attribution. Indeed, the judge substantially copied 62 of 66 paragraphs of the Minister’s written submissions. 52 The judge’s copying must be placed in its proper context. 192 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

53 First, at the beginning of his analysis, the judge wrote the following: [20] The Court, subsequent to reading all of the submitted materials, having heard both parties in a teleconference hearing and reflected on the matter, agrees with the position of the Respondent [Minister]. [21] The Applicant fails to raise an arguable issue in his underlying application and fails to establish that he would face irreparable harm if the stay scheduled for the 19th, 20th or 21st of December, 2011 were not granted. The Court agrees with the Respondent that the balance of convenience weighs in favour of the public interest in this case. The Applicant is a foreign national who is to be removed subsequent to his having been determined to be inadmissible for serious criminality, all of which is explained below[.] This was the judge’s original prose. 54 In argument before us, counsel for the appellant admitted that if the judge had written only these two paragraphs and nothing else, the reasons would have been sufficient and would not have created any apprehension of bias. 55 Second, the appellant asked the judge to render judgment very quickly in order to facilitate onward review and the judge acceded to that request. Seen in this light, the judge’s resort to copying of the 62 paragraphs from the Minister’s written submissions could be seen as an attempt œ quick, convenient and shorthand, yet ill-advised œ to outline the Minister’s position that he had adopted. 56 Third, the nature of the teleconference hearing conducted by the judge forms part of the context. At the hearing of this appeal, we informed the parties that we had obtained the Registrar’s minutes of the teleconference hearing and we invited the parties to make submissions on what we had learned from those minutes. 57 The minutes show that the teleconference lasted just under two hours. All but twenty-five minutes of the hearing concerned the merits of the stay motion. Those twenty-five minutes concerned the request that the judge recuse himself. During the entire hearing, the judge asked many questions of both parties. Counsel for the appellant estimated that teleconference hearings concerning stay motions take between 30 and 45 minutes on average, and, on occasion, an hour. Accepting that estimate for argument’s sake, the argument on the merits in this case lasted double the average. 58 The appellant notes that the judge has engaged in the copying of a party’s submissions without attribution in other cases. Indeed, the judge Es-Sayyid v. Canada Per curiam 193

has done this in varying degrees in some other cases, but not just in cases involving the Minister and not just in cases involving criminality. We do not think that this furthers the appellant’s argument that the judge was biased in favour of the Minister in this case. 59 On a fair construction of the judge’s reasons, viewed in light of the foregoing contextual facts, we are of the view that any fully-informed, reasonable person would conclude that the judge considered the material before him and the parties’ submissions and decided the matter before him in an open-minded, independent and impartial way. 60 Therefore, we reject the appellant’s submission that there was bias or a reasonable apprehension of bias in the case arising from the unat- tributed copying of the Minister’s submissions. However, more must be said. 61 This Court has warned against the practice of copying a substantial part of a party’s written submissions without acknowledging that it is doing so: Janssen-Ortho Inc. v. Apotex Inc., 2009 FCA 212 (F.C.A.). Copying the bulk of a party’s written submissions “may lead to the impression that the judge has not done the work which he is called upon to do, namely, to examine all of the evidence before him and to make the appropriate findings” (at paragraph 77). As the appellant has observed, submissions of the Minister copied, without attribution, into reasons will be seen by later readers as the reasons of the judge, when in fact the Minister drafted them. 62 We reiterate the warning in Janssen-Ortho Inc. in the strongest possible terms. Judges should draft their own prose, explaining the basis for their decisions. Adopting or incorporating into the reasons, with attribution, portions of the written submissions is permissible. But that is subject to an important overriding consideration œ in the end, the reasons must always be, and be seen to be, the end-product of the judge’s own assessment of the key issues raised in the case. In this regard, we empha- size (and appellant’s counsel agreed) that only a paragraph or two may suffice in cases such as this. Here, the issues were straight-forward, the law was well-settled, and speed was of the essence. 63 Absolutely nothing good can come from the practice followed by the judge in this case, i.e., copying a substantial portion of one of the parties’ submissions without attribution. It creates a cloud over those who engage in it and harms the reputation of the administration of justice. This practice must stop. 194 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

(3) The grounds taken together 64 In the event that we found that none of the grounds individually established bias, the appellant asked us to consider the matter globally. Looking at the overall circumstances and assessing them all together, would an informed person, viewing the matter realistically and practically, consider that the judge was, or appeared to be, biased? Based on the above analysis, we answer this in the negative.

F. Further relief requested 65 Earlier, we noted that this Court granted an interim stay preventing the Minister from carrying out the removal order “until the disposition of [this] appeal by this Court.” 66 In the event that this Court were to dismiss the appeal, the appellant requested that this Court delay the coming into force of its judgment until the Supreme Court decided his application for leave to appeal. On the appellant’s view of the January 6, 2012 interim stay order, this would prevent the Minister from carrying out the removal order until that time. The Minister opposes. 67 This Court has the jurisdiction to grant such relief in its judgment: Federal Courts Rules, Rule 53(1) (ability to attach terms to an “order”) and Rule 2 (an “order” includes a judgment). 68 In light of the reasons for granting of the interim stay, it makes sense to delay the coming into force of our judgment by three weeks, i.e., March 12, 2012. For clarity, the words “until the disposition of [this] appeal by this Court” in the interim stay order of January 6, 2012 shall be interpreted to mean March 12, 2012. This would allow counsel for the appellant, if so advised, to take whatever steps may be appropriate in the Supreme Court of Canada. 69 Therefore, we shall dismiss the appeal. Our judgment shall not take effect until March 12, 2012, at which time the interim stay granted by order of this Court on January 6, 2012 shall expire. Appeal dismissed. Shirazi v. Canada (MCI) 195

[Indexed as: Shirazi v. Canada (Minister of Citizenship & Immigration)] Farha Farook Shirazi, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-2817-11 2012 FC 306 Andr´e F.J. Scott J. Heard: January 10, 2012 Judgment: March 14, 2012 Immigration and citizenship –––– Admission — Immigrants — Skilled workers — Categories (point system) — Miscellaneous –––– Applicant was citizen of India — She held bachelor of commerce degree, diploma in computer education, and diploma in international trade from India — She held several positions in secretarial field — Applicant filed application for permanent residence as member of Federal Skilled Worker (“FSW”) class — Officer concluded that applicant did not satisfy requirements of Immigration and Refugee Protection Act and Regulations and was therefore inadmissible under secretary category of FSW class — Applicant brought application for judicial review of officer’s decision — Application granted — Matter was remitted to case processing pilot for reconsideration by another officer — Officer’s decision was unreasonable, as it lacked transparency and intelligibility — Officer rejected letter from former employer provided by applicant, but reasons were not provided — Officer’s affidavit failed to provide sufficient details to explain basis for officer’s conclusion that she was not satisfied that applicant had performed substantial number of main duties set out in regulations. Cases considered by Andr´e F.J. Scott J.: Ali v. Canada (Minister of Citizenship & Immigration) (2011), 2011 Car- swellNat 4591, 2011 FC 1247, 2011 CF 1247, 2011 CarswellNat 5676, [2011] F.C.J. No. 1536 (F.C.) — considered Gulati v. Canada (Minister of Citizenship & Immigration) (2010), 89 Imm. L.R. (3d) 238, 2010 CF 451, 2010 CarswellNat 4178, 2010 FC 451, 2010 Car- swellNat 1743, [2010] F.C.J. No. 771 (F.C.) — considered Hajariwala v. Canada (Minister of Employment & Immigration) (1988), [1989] 2 F.C. 79, 34 Admin. L.R. 206, 23 F.T.R. 241, 1988 CarswellNat 74, 1988 CarswellNat 742, 6 Imm. L.R. (2d) 222, [1988] F.C.J. No. 1021 (Fed. T.D.) — considered 196 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

Kniazeva v. Canada (Minister of Citizenship & Immigration) (2006), 2006 Car- swellNat 472, 2006 CF 268, 2006 CarswellNat 2836, 52 Imm. L.R. (3d) 298, 2006 FC 268, 288 F.T.R. 282 (Eng.), [2006] A.C.F. No. 336, [2006] F.C.J. No. 336 (F.C.) — referred to New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1, 69 Admin. L.R. (4th) 1, 69 Imm. L.R. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) [2008] 1 S.C.R. 190, 844 A.P.R. 1, (sub nom. Dunsmuir v. New Brunswick) 2008 C.L.L.C. 220-020, D.T.E. 2008T-223, 329 N.B.R. (2d) 1, (sub nom. Dunsmuir v. New Brunswick) 170 L.A.C. (4th) 1, (sub nom. Dunsmuir v. New Brunswick) 291 D.L.R. (4th) 577, 2008 CarswellNB 124, 2008 CarswellNB 125, 2008 SCC 9, 64 C.C.E.L. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) 95 L.C.R. 65, [2008] S.C.J. No. 9, [2008] A.C.S. No. 9 (S.C.C.) — followed Sandhu v. Canada (Minister of Citizenship & Immigration) (2010), 2010 Car- swellNat 3100, 2010 CF 759, 90 Imm. L.R. (3d) 301, 2010 FC 759, 2010 CarswellNat 2412, 371 F.T.R. 239 (F.C.) — considered Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Generally — referred to s. 11(1) — considered s. 12(2) — considered Regulations considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Immigration and Refugee Protection Regulations, SOR/2002-227 Generally — referred to s. 72(1) — pursuant to s. 75(1) — considered s. 75(2) — considered s. 75(2)(c) — considered s. 75(3) — considered s. 80(1) — considered

APPLICATION for judicial review of Citizenship and Immigration Canada case officer’s decision to deny application for permanent residence.

Mtre Jean-Fran¸cois Bertrand, for Applicant Mtre Catherine Brisebois, for Respondent Shirazi v. Canada (MCI) Andr´e F.J. Scott J. 197

Andr´e F.J. Scott J.: I. Introduction 1 This is an application by Farha Farook Shirazi (Ms. Shirazi), pursuant to subsection 72(1) of the Immigration and refugee Protection Act, SC 2001, c 27 [IRPA], for judicial review of a decision of M. Pendleton, Case Officer at Citizenship and Immigration Canada (the officer) rendered April 14, 2011, denying Ms. Shirazi’s application for permanent residence as a member of the Federal Skilled Worker [FSW] class. 2 For the reasons that follow, this application for judicial review is granted.

II. Background A. Facts 3 Ms. Shirazi is a citizen of India, born in Surat, on September 10, 1975. 4 Ms. Shirazi is married with two children. She holds a Bachelor of Commerce and a diploma in Computer Education from the D.R.K. Col- lege of Commerce, in India and a diploma in International Trade from Mumbai. 5 Her resume reveals that she held several positions in the secretarial field. From October 1999 to September 2001 she worked as a secretary for Al-Rods est., in Sharjah, U.A.E. From November 2002 to February 2006, she worked as an Executive Secretary for Avon Appliances in Mumbai. Ms. Shirazi then worked for Standard Carpets in Sharjah until April 2007. Finally, she joined the “Happy Home English School” in Sharjah from September 2008 to this date (see paras 7 to 15 of the Affi- davit of Farha Farook Shirazi). 6 In July 2007, she filed an application under the FSW class. 7 On October 9, 2007, Ms. Shirazi received an acknowledgement of application from the Canadian High Commission in London, England. 8 On March 11, 2010, Ms. Shirazi was informed that her application was sent to the Case Processing Pilot in Ottawa. 9 The Officer concluded that Ms. Shirazi did not satisfy the requirements of the IRPA and the Immigration and Refugee Protection Regula- tions, SOR/2002-227 [IRPR]. Therefore, she was inadmissible under de FSW class, more particularly under the secretary category. 198 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

B. Officer’s decision 10 The Officer assessed Ms. Shirazi’s application and awarded points as follows: Points assessed Maximum Age 10 10 Education 22 25 Experience 19 21 Arranged employment 0 10 Official language pro- 14 24 ficiency Adaptability 0 10 TOTAL 65 100 11 In order to be accepted under the FSW class, Ms. Shirazi needed a minimum of 67 points. However, as the table above indicates, Ms. Shirazi only scored 65 points out of a maximum of 100 points. 12 The portion of the decision that is at issue, in this case, relates to the Officer’s rating in the “Experience” category. 13 As evidence of her experience in the secretarial field, Ms. Shirazi provided several letters from past employers. According to the Officer, of all the documents submitted, only two contained details of her duties (see pages 49 to 59 of the Applicant’s Record). The Officer assessed Ms. Shirazi’s work experience using these two letters. The Officer compared the duties listed in these letters to the description in the National Occupa- tional Classification [NOC] and found that only one letter (see the letter from Avon Appliances, pages 49 to 57) demonstrated that Ms. Shirazi had performed a number of the duties listed in the NOC code 1241 [NOC 1241]. The Officer writes: “that letter, from Avon Appliances, covers a period of employment of three years, but less than 4 years” (see page 2 of the Tribunal Record). 14 Ms. Shirazi was awarded 19 points instead of 21 points in the experience category because of the length of her tenure at Avon. The Officer calculated Work Experience points “based upon the dates of employment as provided by the letter from Avon Appliances. The dates of [employment] are indicated as 5 November 2002 to 28 February 2006. This is a total of 39 months of employment, or three (3) years but less than four (4) years. As per section 80(1) of the [IRPR], [the Officer] awarded 19 Shirazi v. Canada (MCI) Andr´e F.J. Scott J. 199

points for work experience based on this assessment” (see para 16 of the Affidavit of Meghan Pendleton dated November 18, 2011).

III. Issue and standard of review A. Issue • Did the officer err in finding that Ms. Shirazi failed to satisfy the requirements found in subsection 75(2) of the IRPR?

B. Standard of Review 15 “The assessment of an application for permanent residence under the [FSW] class is an exercise of discretion that should be given a high degree of deference” (see Ali v. Canada (Minister of Citizenship & Immi- gration), 2011 FC 1247, [2011] F.C.J. No. 1536 (F.C.) at para 26; Kniazeva v. Canada (Minister of Citizenship & Immigration), 2006 FC 268 (F.C.)). The present issue raises a question of fact or of mixed fact and law. It is therefore reviewable on a standard of reasonableness (see Gulati v. Canada (Minister of Citizenship & Immigration), 2010 FC 451, [2010] F.C.J. No. 771 (F.C.) at para 19 [Gulati]). 16 When reviewing a decision on a standard of reasonableness, the Court must be concerned “with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law” (see New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9, [2008] 1 S.C.R. 190 (S.C.C.) at para 47 [Dunsmuir]).

IV. Parties’ submissions A. Ms. Shirazi’s submissions 17 Ms. Shirazi claims the Officer’s decision is unreasonable because she failed to take in consideration her letter of employment from the “Happy Home English School”. She also submits that an applicant does not need to perform all of the duties set out in the NOC 1241. In Sandhu v. Canada (Minister of Citizenship & Immigration), 2010 FC 759 (F.C.) at para 27, Justice Mandamin wrote that “the Applicant’s last employer listed her responsibilities. This list included two tasks which would qualify the Applicant as a secretary as understood by the NOC 1241 standard: namely, making travel arrangements and training new staff”. 200 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

18 Ms. Shirazi underlines that she occupied the position of school secretary at the “Happy Home English School”. She alleges that her duties at the school which were listed in her letter dated May 2, 2010 (see page 59 of the Applicant’s record) shows that she did perform a number of the main tasks listed in the NOC 1241. She submits that, in comparing the NOC 1241 to her letter of employment from the school, similarities of the duties are apparent. 19 The Officer disregarded Ms Shirazi’s experience at the school because it failed to show that she had performed a number of the main duties described in the NOC. Ms. Shirazi contends that the main duties listed in the NOC 1241 must be applied to various contexts.

B. Respondent’s submissions 20 The Respondent submits that, although Ms. Shirazi had performed the main duties of a secretary in the lead statement of the NOC 1241, she only met the requirements of two criteria for one of her former positions. 21 The Respondent alleges that the evaluation of an applicant’s work experience is a matter that belongs to each visa officer. The decision at hand is discretionary and is reasonable in its entirety. This Court’s intervention is therefore not warranted. 22 The Respondent refers to Justice Jerome’s decision in Hajariwala v. Canada (Minister of Employment & Immigration) (1988), [1989] 2 F.C. 79 (Fed. T.D.) at para 7, where he held that “it is clearly, therefore, the responsibility of the applicant to produce all relevant information which may assist his application”. Since Ms. Shirazi did not provide sufficient information in support of her application, the Officer was unable to conclude that she had performed a substantial number of the main duties listed in NOC 1241 when working for the “Happy Home English School”. Consequently, The Officer’s decision is reasonable.

V. Analysis • Did the officer err in finding that Ms. Shirazi failed to satisfy the requirements found in subsection 75(2) of the IRPR? 23 On April 14, 2011, the Officer rendered her decision. She wrote: ...you provided several letters of employment, letters of offers and contracts. Of these documents, two (2) contained details of your duties. I assessed your work experience using these two documents. I compared the duties listed in these letters to the description in the National Occupational Classification (NOC) and found that only one Shirazi v. Canada (MCI) Andr´e F.J. Scott J. 201

letter demonstrated that you had performed a number of the main duties. That letter, from Avon Appliances, covers a period of employment of three years, but less than 4 years. 24 The Officer concluded that her letter of employment from the “Happy Home English School” failed to demonstrate that she had performed a substantial number of the main duties set out in the NOC 1241. 25 Pursuant to subsection 11(1) of the IRPA, “the visa or document may be issued if, following an examination, the officer is satisfied that the foreign national is not inadmissible and meets the requirements of this Act”. 26 Subsection 12(2) of the IRPA governs the application under the eco- nomic class. Its purpose is to determine whether a foreign national has the ability to become economically established in Canada. 27 Furthermore, subsection 75(1) of the IRPR provides that, “for the purposes of subsection 12(2) of the Act, the federal skilled worker class is hereby prescribed as a class of persons who are skilled workers and who may become permanent residents on the basis of their ability to become economically established in Canada”. Pursuant to subsections 75(2) and (3) of the IRPR: (2) a foreign national is a skilled worker if (a) within the 10 years preceding the date of their application for a permanent resident visa, they have at least one year of continuous full-time employment experience, as described in subsection 80(7), or the equivalent in continuous part-time employment in one or more occupations, other than a restricted occupation, that are listed in Skill Type 0 Manage- ment Occupations or Skill Level A or B of the National Oc- cupational Classification matrix; (b) during that period of employment they performed the actions described in the lead statement for the occupation as set out in the occupational descriptions of the National Occupational Classification; and (c) during that period of employment they performed a substantial number of the main duties of the occupation as set out in the occupational descriptions of the National Occupational Classification, including all of the essential duties. 202 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

Minimal requirements (3) If the foreign national fails to meet the requirements of subsection (2), the application for a permanent resident visa shall be refused and no further assessment is required. (2) Est un travailleur qualifié l’étranger qui satisfait aux exigences suivantes: a) il a accumulé au moins une année continue d’expérience de travail a` temps plein au sens du paragraphe 80(7), ou l’équivalent s’il travaille a` temps partiel de fa¸con continue, au cours des dix années qui ont précédé la date de présentation de la demande de visa de résident permanent, dans au moins une des professions appartenant aux genre de compétence 0 Gestion ou niveaux de compétences A ou B de la matrice de la Classification nationale des professions — exception faite des professions d’accès limité; b) pendant cette période d’emploi, il a accompli l’ensemble des tâches figurant dans l’énoncé principal etabli´ pour la profession dans les descriptions des professions de cette classification; c) pendant cette période d’emploi, il a exercé une partie appréci- able des fonctions principales de la profession figurant dans les descriptions des professions de cette classification, notamment toutes les fonctions essentielles. Exigences (3) Si l’étranger ne satisfait pas aux exigences prévues au paragraphe (2), l’agent met fin a` l’examen de la demande de visa de résident permanent et la refuse. 28 In reading subsection 75(3) of the IRPR it is clear that a foreign national must meet the requirements found in subsection 75(2) in order to be considered a skilled worker. 29 The Officer held that Ms. Shirazi did not meet subsection 75(2) paragraph (c) of the IRPR. However, as Justice Mosley wrote, in paragraph 41 of Gulati cited above, “it is impossible to assess the officer’s conclusion, that the applicant had not performed a substantial number of the main duties of NOC ... without knowing which duties the officer thought had not been performed and why”. A review of the Computer Assisted Immigration Processing System notes [CAIPS notes] does not shed additional light on the issue since they merely reiterate the Officer’s reasons for her decision but do not provide any clear indication of the reasoning Shirazi v. Canada (MCI) André F.J. Scott J. 203

behind the rejection of the letter from the Happy Home English School provided by Ms. Shirazi. 30 Certain clarifications were given in the Officer’s affidavit dated No- vember 18, 2011 where she wrote that “[i]n comparing the details of the Applicant’s duties as provided by letter from Happy Home English School to the NOC code provided by the Applicant for this position (1241), I was not satisfied that the Applicant had performed a substantial number of the main duties provided in the description. I was satisfied that the Applicant had performed some of the main duties listed, but not a substantial number” (see para 14 of the Affidavit of Meghan Pendle- ton). Again, the affidavit failed to provide sufficient details to explain the basis for the Officer’s conclusion that she was not satisfied that Ms. Shirazi had performed a substantial number of the main duties as set out in the NOC 1241. 31 The Officer’s decision is a discretionary one. However, the reasonableness of a decision stands on its transparency and intelligibility. 32 According to Dunsmuir cited above “the transparency and intelligibility of a decision are important elements of a reasonableness analysis” (see Gulati at para 42). There absence renders the decision unreasonable.

VI. Conclusion 33 The Officer’s decision is unreasonable, it lacked in transparency and intelligibility. The application for judicial review is hereby granted and the matter is remitted to the Case Processing Pilot in Ottawa for reconsideration by another Officer.

Judgment THIS COURT’S JUDGMENT is that 1. This application for judicial review is granted and the matter is remitted to the Case Processing Pilot in Ottawa for reconsideration by another Officer; and 2. There is no question of general interest to certify. Application granted. 204 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

[Indexed as: Lee v. Canada (Minister of Citizenship & Immigration)] Martin Tan Lee, Appellant and Minister of Citizenship and Immigration, Respondent Federal Court of Appeal Docket: A-213-11 2012 FCA 54 Layden-Stevenson, Gauthier, David Stratas JJ.A. Heard: February 15, 2012 Judgment: February 15, 2012* Immigration and citizenship –––– Admission — Immigrants — Skilled workers — Categories (point system) — Education –––– Applicant was citizen of Philippines who applied for permanent resident status under federal skilled worker class but immigration officer (officer) refused application because applicant had failed to earn minimum 67 points — Applicant brought application for judicial review — Application was dismissed — Officer did not err in assessing applicant’s MBA as two-year degree — Although applicant initially enrolled in three-year MBA degree, he did not complete that degree but had completed two-year degree — Assessing academic requirements that existed at time applicant completed his degree was reasonable and consistent with case law — Officer did not err by awarding applicant credit for 10 years of secondary school education despite fact that applicant attended private school for 11 years — Usual course of study leading to graduation from secondary school in Philippines was 10 years and fact that quality of education at private school may have been better was not relevant to determining points to be awarded — Appli- cant appealed — Appeal dismissed — In assessing points for education immigration officers are not required to consider years of study that did not contribute to qualification being assessed. Immigration and citizenship –––– Admission — Immigrants — Skilled workers — General principles –––– Substituted evaluation — Applicant was citizen of Philippines who applied for permanent resident status under federal skilled worker class — Immigration officer (officer) refused application because applicant had failed to earn minimum 67 points — Applicant brought application for judicial review — Application was dismissed — Officer did not err in

*Leave to appeal refused at Lee v. Canada (Minister of Citizenship & Immigra- tion) (2012), 2012 CarswellNat 3203, 2012 CarswellNat 3204 (S.C.C.). Lee v. Canada (MCI) David Stratas J.A. 205

failing to exercise her discretion positively for substituted evaluation under s. 76(3) of Immigration and Refugee Protection Regulations — Applicant’s submissions regarding his experience in banking industry were not made to officer — If applicant had made those submissions in context of request for substituted evaluation, officer might have been obliged to provide further analysis and reasons — Moreover, applicant did not apply to come to Canada as member of investor, entrepreneur or self-employed class, but as skilled worker — Question before officer was therefore whether applicant had ability to become economically established as skilled worker — In assessing whether she should exercise her discretion for substituted positive evaluation, officer was not required to look beyond evidence related to federal skilled worker class — All positive factors relevant to federal skilled worker class were included in officer’s assessment — Accused appealed — Appeal dismissed — Federal Court was correct in its assessment of officer’s duty to provide reasons. Cases considered by David Stratas J.A.: Khan v. Canada (Minister of Citizenship & Immigration) (2011), 2011 Car- swellNat 5153, 2011 FCA 339, 426 N.R. 12, 3 Imm. L.R. (4th) 1 (F.C.A.) — considered Regulations considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Immigration and Refugee Protection Regulations, SOR/2002-227 Generally — referred to

APPEAL of judgment reported at Lee v. Canada (Minister of Citizenship & Im- migration) (2011), 2011 CarswellNat 1893, 2011 FC 617, 2011 CF 617, 2011 CarswellNat 3889, 390 F.T.R. 166 (Eng.) (F.C.).

Timothy E. Leahy, for Appellant Jamie Todd, Teresa Ramnarine, for Respondent

David Stratas J.A. (orally):

1 Mr. Lee appeals from a judgment of the Federal Court (per Justice Snider): 2011 FC 617. 2 Mr. Lee had applied for a permanent resident visa under the “federal skilled worker class” described in the Immigration and Refugee Protec- tion Regulations, SOR/2002-227. A designated immigration officer rejected Mr. Lee’s application on the basis that he failed to earn the minimum number of points needed to qualify for the visa. 3 The Federal Court dismissed Mr. Lee’s application for judicial review, finding that the immigration officer committed no reviewable er- 206 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

ror. In doing so, it certified the following as a question of general importance: In assessing points for education under section 78 of the Immigration and Refugee Protection Regulations, does the visa officer award points for years of full-time or full-time equivalent studies that did not contribute to obtaining the educational credential being assessed? 4 Recently, in another appeal, this Court considered this very question and answered it in the negative: Khan v. Canada (Minister of Citizenship & Immigration), 2011 FCA 339 (F.C.A.). The appellant has not convinced us that Khan is manifestly wrong. Accordingly, we must answer the certified question in this case in the negative. 5 In addition to the issue raised by the certified question, Mr. Lee raises other issues in this Court. These broadly relate to the substantive merits of the designated immigration officer’s decision and his failure to provide reasons. 6 Mr. Lee raised these same issues in the Federal Court, submitting that the designated immigration officer’s decision should be set aside. As mentioned above, the Federal Court found no reviewable error. 7 For substantially the same reasons as the Federal Court, we agree that there is no reviewable error. 8 Finally, in this Court, the appellant submits that the decision was “lawfully invalid” because outdated forms were used. The CAIPS notes show that there was updating of the appellant’s file. In our view, the appellant’s submission in this respect elevates form over substance. 9 Therefore, notwithstanding counsel’s spirited submissions, we shall answer the certified question in the negative and dismiss the appeal. Appeal dismissed. Kaur v. Canada (MCI) 207

[Indexed as: Kaur v. Canada (Minister of Citizenship & Immigration)] Inderjit Kaur, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-4004-11 2012 FC 273 Simon No¨el J. Heard: February 22, 2012 Judgment: February 28, 2012 Immigration and citizenship –––– Exclusion and removal — Inadmissible classes — Misrepresentation — General principles –––– Misrepresentation regarding marriage — Applicant was female citizen of India — Applicant commenced application for permanent resident visa under skilled worker class (visa application) — Visa application was reviewed by visa officer (officer) — Of- ficer determined that interview was required to fully assess visa application because of concerns about applicant’s marriage (marriage) — Concerns about marriage included large age difference between spouses and fact that applicant’s passport did not indicate she was married — Letter was sent to applicant requesting that she complete spousal questionnaire, provide proof of her continued relationship, and bring wedding photos to interview — After interviewing applicant and her husband, officer concluded that marriage had been entered into in bad faith and that applicant had misrepresented her marital status under s. 40 of Immigration and Refugee Protection Act (IRPA) — Officer referred applicant’s file to manager — Manager determined that applicant had misrepresented facts and, as result, deemed her to be inadmissible for misrepresentation under s. 40 of IRPA — Applicant brought application for judicial review — Application granted — Manager was not guided by proper legal considerations and committed reviewable error — Officer and manager made their findings based strictly on concerns about bona fides of marriage — Such determination should have been made under s. 4 of Immigration and Refugee Protection Regulations (IRPR) — It would then have been open to officer and manager to also conclude there was misrepresentation based on s. 40 of IRPA — Without first determining under s. 4 of IRPR that marriage was entered into in bad faith, however, officer and manager could not simply conclude misrepresentation had occurred based on unconfirmed doubt as to bona fides of marriage — Applicant was not denied procedural fairness — Considering letter sent to applicant before interview, she was not unaware that marriage would be scrutinized at interview — At 208 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

end of interview, officer expressed her concerns explicitly and provided applicant with chance to respond — Subject of officer’s concerns, marriage, was evident and there was no requirement to make it more obvious. Cases considered by Simon No¨el J.: Chen v. Canada (Minister of Citizenship & Immigration) (2008), 2008 FC 1227, 2008 CarswellNat 4076, 75 Imm. L.R. (3d) 282, [2008] F.C.J. No. 1539 (F.C.) — referred to Chertyuk v. Canada (Minister of Citizenship & Immigration) (2008), 2008 FC 870, 2008 CF 870, 2008 CarswellNat 3112, 2008 CarswellNat 2381, [2008] F.C.J. No. 1086 (F.C.) — referred to Ha v. Canada (Minister of Citizenship & Immigration) (2004), 2004 FCA 49, 2004 CarswellNat 247, 236 D.L.R. (4th) 485, 316 N.R. 299, [2004] 3 F.C.R. 195, 34 Imm. L.R. (3d) 157, 247 F.T.R. 314 (note), 11 Admin. L.R. (4th) 306, 2004 CarswellNat 5581, [2004] F.C.J. No. 174 (F.C.A.) — referred to Koo v. Canada (Minister of Citizenship & Immigration) (2008), 2008 Car- swellNat 2630, 2008 FC 931, 74 Imm. L.R. (3d) 99, [2009] 3 F.C.R. 446, 2008 CarswellNat 5631, 2008 CF 931, [2008] A.C.F. No. 1152, [2008] F.C.J. No. 1152 (F.C.) — referred to Menon v. Canada (Minister of Citizenship & Immigration) (2005), 275 F.T.R. 303, 2005 CarswellNat 2826, 2005 FC 1273, 2005 CarswellNat 5329, 2005 CF 1273, 53 Imm. L.R. (3d) 85, [2005] F.C.J. No. 1548 (F.C.) — referred to Nazim v. Canada (Minister of Citizenship & Immigration) (2009), 2009 Car- swellNat 1216, 344 F.T.R. 272 (Eng.), 2009 FC 471, [2009] F.C.J. No. 564 (F.C.) — referred to New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1, 69 Admin. L.R. (4th) 1, 69 Imm. L.R. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) [2008] 1 S.C.R. 190, 844 A.P.R. 1, (sub nom. Dunsmuir v. New Brunswick) 2008 C.L.L.C. 220-020, D.T.E. 2008T-223, 329 N.B.R. (2d) 1, (sub nom. Dunsmuir v. New Brunswick) 170 L.A.C. (4th) 1, (sub nom. Dunsmuir v. New Brunswick) 291 D.L.R. (4th) 577, 2008 CarswellNB 124, 2008 CarswellNB 125, 2008 SCC 9, 64 C.C.E.L. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) 95 L.C.R. 65, [2008] S.C.J. No. 9, [2008] A.C.S. No. 9 (S.C.C.) — referred to Uppal v. Canada (Minister of Citizenship & Immigration) (2009), 2009 Car- swellNat 1209, 2009 FC 445, [2009] F.C.J. No. 557 (F.C.) — referred to Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Generally — referred to s. 40 — considered s. 40(1)(a) — referred to Kaur v. Canada (MCI) Simon No¨el J. 209

Regulations considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Immigration and Refugee Protection Regulations, SOR/2002-227 s. 4 — considered

APPLICATION by citizen of India for judicial review of decision deeming her to be inadmissible to Canada for misrepresentation with respect to her marriage.

Puneet Khaira, for Applicant Jennifer Dagsvik, for Respondent

Simon No¨el J.:

1 This is an application for judicial review of a decision dated March 11, 2011, in which an Immigration Program Manager [the manager] at the Canadian High Commission in New Delhi determined that the applicant was inadmissible to Canada as a result of misrepresenting her marital status, pursuant to paragraph 40(1)(a) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA].

I. Background 2 Ms. Inderjit Kaur [the applicant], an Indian citizen, first applied for a permanent resident visa under the skilled worker class in May of 2009, but subsequently withdrew her application. 3 Ms. Kaur then married on August 14, 2009, re-applied for permanent residence under the skilled worker class on January 4, 2010, and included her husband as an accompanying spouse. 4 On January 10, 2011, Ms. Kaur’s application was reviewed by a visa officer [the officer], who assigned the applicant a score of 69 points, just above the 67 required under the IRPA. Of the 69 points, five were tenta- tively given for the applicant’s husband’s Master’s degree, pending a review of the spousal questionnaire and interview. The officer determined that an interview was required to fully assess the application because of the following concerns, as described in the Computer Assisted Immigra- tion Processing System [CAIPS] notes (Trial Record [TR] at 11): [Applicant] is 7 years older than her husband, this is not common in local culture. Spouse is a master’s degree holder but has been unem- ployed since he graduated in April 2007. [Applicant] and spouse married in August 2009, one month before she applied for permanent residence file number B055333456. [Applicant’s] new passport is- 210 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

sued in February 2010 does not indicate she was married. [Appli- cant’s] PCC from India issued in May 2010 does not indicate she is married. [The reference to the file number B055333456 is to the first application. Therefore, this is not factual. She abandoned the first application in Sep- tember 2009.] 5 A letter was sent to the applicant informing her that in order to continue processing her application, she was requested to complete a spousal questionnaire, to provide proof of her continued relationship pre and post-marriage — including telephone bills indicating constant contact or bank statements — and to bring wedding photos from her ceremony and reception to an interview that would be held with her and her husband (Applicant’s Record [AR] at 25).

II. Impugned Decision 6 On March 10, 2011, the officer interviewed the applicant and her husband, first individually, then together. They were both questioned for details of their relationship history, marriage, and ongoing relationship. The applicant provided photos from the wedding ceremony and honeymoon, which according to the officer’s notes, were limited and appeared contrived and taken in haste. After completing both individual interviews, the officer informed the applicant and her husband that she had concerns regarding the bona fides of their marriage and that she believed it was entered into primarily for the purpose of acquiring permanent residence in Canada. She told them she would list her concerns and provide them a chance to satisfy her that the marriage was real and genuine. According to the officer’s CAIPS notes, the following exchange took place (TR at 15): [Officer:] You have a large age difference, your wedding was not well attended, you submit that you have sexual relations prior to marriage, all of these are contrary to local customs. Your sister in law Sukhdeep is older than your husband, she is 29 years of age, not 24 as you said. The photos you have shown me from your wedding and honeymoon look contrived and taken in haste. You don’t look happy or festive. The telephone bill you brought me does not appear to be issued from a phone company. What would you like to say to me now? [Response:] As you like. [Officer:] Do you have anything you would like to tell me before I make my decision? Kaur v. Canada (MCI) Simon No¨el J. 211

[Response:] No, we are already married and living together for two years, what is there to say. The officer informed the applicant that she would refer the case to a senior officer who would determine whether he agreed that the applicant had misrepresented her marriage. 7 The same day, the officer summarized her position in the CAIPS notes (TR at 15-16): [Applicant] first applied for permanent residence to Canada in May 2009, she later withdrew this application and reapplied in February 2010. [Applicant] makes 64 points on her own and requires 5 points from spouse’s education to pass selection. [Applicant] and Spouse offered contradictory responses at interview regarding the sister in law that is supposed to be residing with the couple. They insist that there was no wedding reception, which is contrary to local customs. The number of guests who attended the wedding is 150 but there is a lack of photographic evidence to show it. The wedding and honeymoon photos appear contrived and awkward, unlike a festive ceremony as per local customs and norms. [Applicant] is over 6 years older than her husband, which is unusual in an Indian marriage. The couple admitted to having physical relations 2 months after meeting each other and before marriage, which is also unusual in an Indian marriage, even if it is a love marriage. When asked about their bedroom, both applicants described their bedroom the same way as if it was rehearsed. All these factors makes it hard to believe that this is a genuine relationship. The marriage ceremony seemed to be a hasty affair. Couple does not appear to be happy, guests are not well dressed, there was no wedding reception. No credible explanation was offered other than [applicant’s] and Spouse had no interest in a wedding reception. This is uncommon in Hindu Weddings. I expressed my concerns to the [applicant] and her spouse and they did not provide a satisfactory answer to address my concerns. [Appli- cant] also did not provide me with evidence/documents in support of an on-going spousal relationship other than their honeymoon photos which did not satisfy me of a genuine relationship and telephone records without a header and did not appear to be issued from a cellphone company [...] [Applicant misrepresented her marital status in order to bring [her husband] to Canada and to pass selection with enough points gained from spouse’s education. 212 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

8 The manager reviewed the application the following day and determined that, on a balance of probabilities, it was more probable that the applicant had misrepresented the facts. As a result, he deemed the applicant to be inadmissible for misrepresentation under section 40 of the IRPA and sent her a letter informing her of his decision that same day.

III. Parties’ Positions 9 The applicant argues the manager did not have jurisdiction to assess the bona fides of her marriage under section 4 of the Immigration and Refugee Protection Regulations, SOR 2002/227 [IRPR], that there was a breach of procedural fairness because she was not given notice of the concerns relating to her marriage and inadmissibility for misrepresentation, and that the totality of the evidence supporting the bona fides of her marriage was not considered. 10 The respondent contends that there was no determination made pursuant to section 4 of the IRPR, but that instead her inadmissibility was determined pursuant to section 40 of the IRPA. The respondent submits that the genuineness of the marriage was relevant and material to the processing of the application and that there was a valid basis for a finding of inadmissibility due to misrepresentation. The applicant’s concerns regarding procedural fairness are disputed as she was given notice by letter and during the interview of the concerns relating to misrepresentation. Finally, the respondent is of the view that the finding of inadmissibility was based on all of the evidence presented.

IV. Issues and Standard of Review 11 The following issues will be reviewed by this Court: 1. Was the applicant denied procedural fairness? 2. Did the manager err in determining that the applicant had misrepresented her marital status? 12 Procedural fairness is a question of law and this Court will not show deference if an error has been committed (Ha v. Canada (Minister of Citizenship & Immigration), 2004 FCA 49 (F.C.A.) at para 45, [2004] F.C.J. No. 174 (F.C.A.)). By contrast, deference must be shown when reviewing a finding of misrepresentation under section 40 of the IRPA as reasonableness is the appropriate standard of review (Koo v. Canada (Minister of Citizenship & Immigration), 2008 FC 931 (F.C.) at para 20, [2008] F.C.J. No. 1152 (F.C.); Uppal v. Canada (Minister of Citizenship & Immigration), 2009 FC 445 (F.C.) at paras 23-24 [2009] F.C.J. No. Kaur v. Canada (MCI) Simon No¨el J. 213

557 (F.C.); Nazim v. Canada (Minister of Citizenship & Immigration), 2009 FC 471 (F.C.) at para 19, [2009] F.C.J. No. 564 (F.C.)). Accord- ingly, it will suffice that this Court confirm the existence of justification, transparency, and intelligibility within the decision-making process and that the manager’s decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law (New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9 (S.C.C.) at para 47, [2008] 1 S.C.R. 190 (S.C.C.) [Dunsmuir]).

V. Analysis A. Was the applicant denied procedural fairness? 13 The applicant is of the view she had no reason to believe a skilled worker application would involve a process whereby the bona fides of her relationship with her spouse would become the primary focus of inquiry at the interview. In light of the fact there is a higher standard of procedural fairness when either section 40 of the IRPA or section 4 of the IRPR are applied (Chen v. Canada (Minister of Citizenship & Immi- gration), 2008 FC 1227 (F.C.) at para 33, [2008] F.C.J. No. 1539 (F.C.) [Chen] and Menon v. Canada (Minister of Citizenship & Immigration), 2005 FC 1273 (F.C.) at para 15, [2005] F.C.J. No. 1548 (F.C.)), she believes not receiving notice that her marriage was vital to her application or that there were concerns as to its genuineness constitutes a breach of procedural fairness. 14 Considering the letter sent to her, I cannot accept that the applicant was unaware her marriage would be scrutinized at the interview. The letter dated January 11, 2011 informed the applicant that in order to continue processing her application, she was requested to complete a spousal questionnaire, to provide proof of her continued relationship pre and post-marriage, and to bring wedding photos from her ceremony and reception to an interview that would be held with her and her husband (AR at 25). At the end of the interview, the officer expressed her concerns explicitly and provided the applicant with a chance to respond. The applicant chose not to avail herself of the opportunity and did not further pursue the matter. The subject of the officer’s concerns — the marriage — was evident and there was no requirement to make it more obvious. 214 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

B. Did the manager err in determining that the applicant had misrepresented her marital status? 15 During the interview, the officer made the following comments found in the CAIPS notes (TR at 15): Based on information available on file and what you have told me during this interview, I have concerns regarding the bona fides of your marriage. In my opinion, this marriage was entered into primarily for the purpose of acquiring permanent residence in Canada [...] I am going to refer your case to a senior officer now, if he or she agrees with my concerns and find that you have misrepresented your- selves and this is not a genuine marriage, your husband will be dropped from your application and you will be found inadmissible to Canada for 2 years [emphasis added]. The officer’s language is almost word for word the one employed in section 4 of the IRPR. There is no doubt she had misgivings about the bona fides of the marriage and concluded it had been entered into in bad faith. Instead of making a determination based on section 4 however, the officer concluded that the applicant had misrepresented her marital status under section 40 of the IRPA. 16 As noted above, the file was then referred to the manager, who concluded that on a balance of probabilities, “it was indeed more probable that the applicant has misrepresented facts that are material to a determination under the IRPA” (TR at 16). He concluded that this misrepresentation would have led to an error in the administration of the IRPA po- tentially resulting in issuance of a visa. As result, he found the applicant was described by section 40. Again in his affidavit the manager confirms that the officer’s CAIPS notes and decision under section 40 were forwarded to him for review. He notes that in his assessment, “cumulative evidence indicated that the Applicant had misrepresented her relationship” (Manager’s affidavit at para 13) and confirms that he consequently found the applicant inadmissible under section 40. Nowhere in his affidavit does he mention section 4 of the IRPR. 17 The respondent’s counsel confirmed at the hearing that the manager’s decision was taken under section 40 of the IRPA and that no determination was made under section 4 of the IRPR. Based on the manager’s CAIPS notes entry and affidavit, I fully agree. As a result, I conclude the manager was not guided by the proper legal considerations and committed a reviewable error (Chertyuk v. Canada (Minister of Citizenship & Kaur v. Canada (MCI) Simon No¨el J. 215

Immigration), 2008 FC 870 (F.C.) at para 29, [2008] F.C.J. No. 1086 (F.C.)). The officer and manager made their findings based strictly on concerns about the bona fides of the marriage. Such a determination should have been made under section 4 of the IRPR. It would then have been open to them to also conclude there was misrepresentation based on section 40 of the IRPA. Without first determining under section 4 of the IRPR that the marriage was entered into in bad faith however, the officer and manager could not simply conclude misrepresentation had occurred based on an unconfirmed doubt as to the bona fides of the marriage. 18 The parties did not propose any question for certification.

Judgment THIS COURT’S JUDGMENT is that the application for judicial review is allowed and no question is certified. Application granted. 216 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

[Indexed as: Bajwa v. Canada (Minister of Citizenship & Immigration)] Sadhu Singh Bajwa, Kulwant Kaur Bajwa and Gurpreet Singh Bajwa, Applicants and Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-4143-11 2012 FC 864 John A. O’Keefe J. Heard: January 18, 2012 Judgment: July 9, 2012 Immigration and citizenship –––– Admission — Application for temporary resident or immigrant visa — Powers and duties of visa or immigration officer — Exercise of discretion –––– Applicant and his parents were granted Ca- nadian visas in India in June 2010 — Visas expired on December 31, 2010 — Applicant’s parents left India for Canada on December 27, 2010 — Applicant was unable to accompany his parents because he had been arrested and detained on criminal charges in India and trial was not scheduled until after expiry date of visas — Applicant’s parents attended at visa office in India in November 2010 but were informed that it was not possible to extend visas and that they were not permitted to speak with visa officer — Applicant’s trial was held in March 2011 and applicant was acquitted of all charges and released — In April 2011 applicant’s parents retained legal counsel in Canada and made formal written request for extension of applicant’s visa — Immigration officer denied request by e- mail, stating that it was not possible to reopen file — Applicant applied for judicial review of immigration officer’s decision — Application granted — Officer fettered his discretion by relying on office procedure manual in denying request for visa extension — Manual stated that visa could not be extended, but no such limitation was set out in Immigration and Refugee Protection Act or Regula- tions — Officer relied on guidelines rather than statutory limitations — Issue of fettering of discretion is reviewable on correctness standard — Officer incorrectly determined that file could not be reopened — Particular facts of this case required deviation from normal practice set out in manual. Immigration and citizenship –––– Admission — Application for temporary resident or immigrant visa — Powers and duties of visa or immigration officer — Providing reasons –––– Applicant and his parents were granted Cana- dian visas in India in June 2010 — Visas expired on December 31, 2010 — Ap- plicant’s parents left India for Canada on December 27, 2010 — Applicant was Bajwa v. Canada (MCI) 217

unable to accompany his parents because he had been arrested and detained on criminal charges in India and trial was not scheduled until after expiry date of visas — Applicant’s parents attended at visa office in India in November 2010 but were informed that it was not possible to extend visas and that they were not permitted to speak with visa officer — Applicant’s trial was held in March 2011 and applicant was acquitted of all charges and released — In April 2011 applicant’s parents retained legal counsel in Canada and made formal written request for extension of applicant’s visa — Immigration officer denied request by e- mail, simply stating that it was not possible to reopen file — Applicant applied for judicial review of immigration officer’s decision — Application granted — Officer’s reasons were inadequate and denied applicant procedural fairness — It was not until officer was cross-examined that it was confirmed that his decision was based on standard office procedure set out in manual — Reasons did not allow court to understand why officer made his decision and it was not possible to determine whether officer’s conclusion was within range of acceptable outcomes. Cases considered by John A. O’Keefe J.: Kheiri v. Canada (Minister of Citizenship & Immigration) (2000), 2000 Car- swellNat 1989, 193 F.T.R. 112, 8 Imm. L.R. (3d) 265, [2000] F.C.J. No. 1383 (Fed. T.D.) — considered Khosa v. Canada (Minister of Citizenship & Immigration) (2009), 82 Admin. L.R. (4th) 1, 2009 SCC 12, 2009 CarswellNat 434, 2009 CarswellNat 435, 304 D.L.R. (4th) 1, 77 Imm. L.R. (3d) 1, 385 N.R. 206, (sub nom. Canada (Citizenship & Immigration) v. Khosa) [2009] 1 S.C.R. 339, [2009] S.C.J. No. 12 (S.C.C.) — considered Koo v. Canada (Minister of Citizenship & Immigration) (2008), 2008 Car- swellNat 2630, 2008 FC 931, 74 Imm. L.R. (3d) 99, [2009] 3 F.C.R. 446, 2008 CarswellNat 5631, 2008 CF 931, [2008] A.C.F. No. 1152, [2008] F.C.J. No. 1152 (F.C.) — referred to Kumarasekaram v. Canada (Minister of Citizenship & Immigration) (2010), 2010 CF 1311, 2010 CarswellNat 5390, 2010 FC 1311, 2010 CarswellNat 4924, [2010] F.C.J. No. 1625 (F.C.) — referred to Lee v. Canada (Minister of Citizenship & Immigration) (2008), 2008 FC 1152, 2008 CarswellNat 4385, [2008] F.C.J. No. 1632 (F.C.) — referred to N.L.N.U. v. Newfoundland & Labrador (Treasury Board) (2011), 2011 Car- swellNfld 414, 2011 CarswellNfld 415, 2011 SCC 62, (sub nom. Nfld. and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board)) 2011 C.L.L.C. 220-008, (sub nom. Newfoundland & Labrador Nurses’ Union v. Newfoundland & Labrador (Treasury Board)) 424 N.R. 220, 340 D.L.R. (4th) 17, D.T.E. 2012T-7, (sub nom. Newfoundland & Labrador Nurses’ Union v. Newfoundland & Labrador (Treasury Board)) [2011] 3 S.C.R. 708, 213 L.A.C. (4th) 95, 97 C.C.E.L. (3d) 199, (sub nom. Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador 218 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

(Treasury Board)) 986 A.P.R. 340, (sub nom. Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board)) 317 Nfld. & P.E.I.R. 340, [2011] S.C.J. No. 62 (S.C.C.) — followed New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1, 69 Admin. L.R. (4th) 1, 69 Imm. L.R. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) [2008] 1 S.C.R. 190, 844 A.P.R. 1, (sub nom. Dunsmuir v. New Brunswick) 2008 C.L.L.C. 220-020, D.T.E. 2008T-223, 329 N.B.R. (2d) 1, (sub nom. Dunsmuir v. New Brunswick) 170 L.A.C. (4th) 1, (sub nom. Dunsmuir v. New Brunswick) 291 D.L.R. (4th) 577, 2008 CarswellNB 124, 2008 CarswellNB 125, 2008 SCC 9, 64 C.C.E.L. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) 95 L.C.R. 65, [2008] S.C.J. No. 9, [2008] A.C.S. No. 9 (S.C.C.) — followed Sellappha v. Canada (Minister of Citizenship & Immigration) (2011), 2011 CF 1379, 2011 FC 1379, 2011 CarswellNat 5077, 2011 CarswellNat 5941, [2011] F.C.J. No. 1690, [2011] A.C.F. No. 1690 (F.C.) — referred to Thamotharem v. Canada (Minister of Citizenship & Immigration) (2007), 2007 CarswellNat 2817, 64 Imm. L.R. (3d) 226, 60 Admin. L.R. (4th) 247, [2008] 1 F.C.R. 385, 2007 CarswellNat 1391, 2007 FCA 198, 2007 CAF 198, 366 N.R. 301, [2007] F.C.J. No. 734 (F.C.A.) — followed Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Generally — referred to s. 3(1)(d) — considered s. 6(1) — considered s. 11(1) — considered s. 72(1) — pursuant to Regulations considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Immigration and Refugee Protection Regulations, SOR/2002-227 Generally — referred to Pt. 4, Div 1 — referred to s. 6 — considered s. 25 — considered s. 51 — considered

APPLICATION for judicial review of decision of immigration officer refusing to extend applicant’s permanent resident visa.

Barbara Jackman, for Applicants Tamrat Gebeyehu, for Respondent Bajwa v. Canada (MCI) John A. O’Keefe J. 219

John A. O’Keefe J.:

1 This is an application pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 (the Act) for judicial review of a decision of an immigration officer of the Family Class and Refugee Unit of the Canadian High Commission in New Delhi, India (the officer), dated April 28, 2011, refusing to extend the validity of the permanent resident visa of the principal applicant, Gurpreet Singh Bajwa. 2 The applicants request that the officer’s decision be quashed and the matter be remitted for redetermination by a different officer.

Background 3 The principal applicant, Gurpreet Singh Bajwa, is a citizen of India. He is the youngest child of the other applicants: Sadhu Singh Bajwa (father) and Kulwant Kaur Bajwa (mother). This couple also has two other children: Harpreet Kaur, who lives in England and Amarjit Kaur Mann, who lives in Canada with her family. 4 Amarjit Kaur Mann and her husband sponsored her parents’ immigration to Canada. The principal applicant was included as a dependent of his parents. All three applicants were issued Canadian visas on June 24, 2010. All three visas expired on December 31, 2010. 5 On June 18, 2010, the principal applicant was arrested and detained on charges of kidnap and assault of Manmeet Kaur, a woman that he had been in a relationship with. Manmeet Kaur’s family allegedly wanted the principal applicant to marry her and bring her to Canada. When he refused, they had charges laid against him. 6 While the principal applicant was detained, his parents realized that his visa would expire before his trial was held. Therefore, in November 2010, they travelled to the High Commission in New Delhi to request an extension. On their first visit, the office was closed. On their second visit, they were informed at the reception desk that it was not possible to extend visas and that they were not permitted to speak with a visa officer. 7 With the expiration of their visas looming, the principal applicant’s parents left India and arrived in Canada on December 27, 2010. 8 The applicant’s trial was held on March 9, 2011. At the trial, the ac- cusers withdrew their allegations. The principal applicant was acquitted 220 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

of all charges and released the same day. In its decision, the Court stated that: 16. [...] Since the prosecutrix / complainant Manmeet Kaur and her father Sukhdev Singh have not supported the prosecution version therefore there is not even an iota of evidence on the record to con- nect the accused Gurpreet Singh with commission of offence under Section 376, 342, 506 IPC [Indian Penal Code]. [...] 17. In view of the aforesaid discussion it is held that the prosecution has miserably failed to prove its case beyond shadow of reasonable doubt. As such accused Gurpreet Singh stands acquitted of the charges framed against him under Sections 376, 342, 506 IPC. [...] 9 In Canada, the principal applicant’s family retained legal counsel. On April 18, 2011, they made a formal request for an extension of the principal applicant’s visa. With the request, they included copies of the Court judgment acquitting the principal applicant and an updated police clear- ance for him.

Officer’s Decision 10 In an email dated April 28, 2011, the officer denied the applicants’ request to extend the principal applicant’s visa. The officer stated that it was not possible to reopen the file. 11 The officer indicated that he had reviewed the detailed information that had been submitted and found it unfortunate that the principal applicant was unable to accompany his parents due to the false charges against him. However, as the principal applicant’s parents were now permanent residents, they could now apply to sponsor their son as a dependent under the family class category.

Issues 12 The applicants submit the following points at issue: 1. Did the officer err in failing to exercise jurisdiction? 2. Was the decision unlawfully made, in that the officer breached the duty of fairness by failing to provide adequate reasons? 3. Was the decision so unreasonable having regard to the evidence properly before the officer so as to amount to an error of law? 13 I would rephrase the issues as follows: 1. What is the appropriate standard of review? Bajwa v. Canada (MCI) John A. O’Keefe J. 221

2. Did the officer err in failing to exercise jurisdiction or in fettering his discretion? 3. Did the officer deny the applicants procedural fairness? 4. Should this application be dismissed because the applicants are not coming to Court with clean hands?

Applicants’ Written Submissions 14 The applicants submit that questions of jurisdiction and procedural fairness are reviewable on a correctness standard. The applicants acknowledge that the exercise of discretion is normally subject to a reasonableness standard. However, they submit that the issues raised in this case are jurisdictional, which attract a correctness standard. 15 The applicants submit that the officer refused to extend the principal applicant’s visa because the Citizenship and Immigration Canada (CIC)’s Operations Manual OP-1 Procedures (the OP-1 Manual) only authorized extensions in one limited instance. The principal applicant needed an extension for a different reason. The officer therefore concluded that it was not possible to extend the visa. This error can be characterized in two ways. Either the officer committed an error of jurisdiction by refusing to exercise jurisdiction or the officer fettered his discretion by limiting its exercise to the example provided in the OP-1 Manual. 16 The applicants submit that there is nothing in the Act or the Immigra- tion and Refugee Protection Regulations, SOR/2002-227 (the Regula- tions) that speaks to the extension or expiry of a permanent resident visa. The OP-1 Manual does state that permanent resident visas are not to be extended. However, it also provides an exception to this rule where applicants receive visas less than two months before their expiry. 17 The applicants infer from the information given to the principal applicant’s parents at the High Commission in New Delhi and the officer’s refusal to extend the visa on the basis that it was not possible, that the officer believed that there was no jurisdiction to extend a visa. The applicants submit that this is an error of jurisdiction because an officer has discretion to revisit the issuance of a visa. This is an administrative decision that is not governed by the principles of finality that govern Court judgments. The applicants submit that this Court has held that where circumstances come to light that call for an officer to consider them, the officer can reconsider visa issuance and extensions thereof. 222 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

18 Further, if the officer was acting on the belief that the policy in the OP-1 Manual prohibited him from extending the visa, this was an error. These policies are guidelines and are not to be treated as mandatory law. Where an officer abides strictly to the guidelines without considering the particular facts of a case, they unlawfully fetter their discretion. In this case, the applicants submit that the officer did not refuse the extension on the basis of the merits of the case but rather on the basis that the visa had been issued in a timely fashion prior to its expiry and it could therefore not be extended. 19 The applicants also submit that the officer merely provided a conclusion, without any supporting explanation or analysis. This did not constitute adequate reasons. The inadequacy of the reasons is exacerbated by the fact that this decision was critical to the future of the applicants as a cohesive family. As the principal applicant is now over the age of 22, he no longer qualifies as a dependent of his parents and can thus not be sponsored by them, as was suggested by the officer. This limitation was included in the submissions that were before the officer when he rendered his decision. By ignoring this evidence, the officer did not fully appreciate the importance of the extension to the family. It was unreasonable for the officer to come to a conclusion without regard to the evidence before him.

Respondent’s Written Submissions 20 The respondent submits that in determining the applicable standard of review it is important to bear in mind that the legislation does not expressly permit a visa officer to extend the time limit on expired permanent resident visas or to restore expired visas. In the absence of such clear legislative intent, the visa officer’s discretion is very limited. As such, a review of the exercise of this discretion should be made against the reasonableness standard. Similarly, as recently stated by the Supreme Court, the adequacy of reasons is not a stand-alone basis for quashing a decision and any challenge to the reasoning or result of a decision should also be made within the reasonableness analysis. 21 The respondent submits that once a visa expires, it becomes void. Al- though the legislation expressly permits extensions or restorations in certain circumstances, there are no legislative provisions authorizing a restoration of an expired permanent resident visa. Similarly, the OP-1 Manual states that the validity of a permanent resident visa may not be extended Bajwa v. Canada (MCI) John A. O’Keefe J. 223

and the cover letter attached to the visas sent to the applicant also stated that the visa could not be extended. 22 The respondent submits that a close examination of the factual and legislative context reveals that the decision is reasonable. In support, the respondent highlights the following: The visa had its maximum validity when received by the applicants; The visa was null and void for almost five months when the request to extend its validity was made; The legislation does not expressly permit extension or restoration of a visa; The OP-1 Manual does identify a circumstance where extension may be granted; and The officer’s decision that the principal applicant’s case was not similar to that circumstance deserves deference. 23 The respondent submits that the officer did not reject the request without thought or study. Rather, the officer reviewed the detailed information submitted and determined that the case did not warrant reopen- ing. As the officer was free to exercise his limited discretion, the decision to refuse to reopen the file was within the range of possible acceptable outcomes. 24 Further, rather than being rejected out of hand, the request was sub- stantively considered. The respondent submits that the applicants are merely equating a negative decision with a refusal to exercise discretion. In addition, the respondent submits that the officer did not decline jurisdiction by deciding the case in accordance with the OP-1 Manual as that was exactly what the applicants had requested. The officer simply did not agree with the applicants’ reading of the OP-1 Manual. As this administrative guidance contemplates persons who had insufficient notice of their visa, the respondent submits that the officer’s reading of the OP-1 Manual was reasonable. 25 The respondent also submits that the decision was reasonable as the request for extension was based on material facts that should have been disclosed before the principal applicant obtained landing. Section 51 of the Regulations requires foreign nationals holding permanent resident visas to report any changes with their family situation. Similarly, the cover letter accompanying the visas clearly stated that any criminal charges or convictions had to be reported prior to departure for Canada. The applicants did not abide to these requirements in their correspon- 224 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

dence with the officer (during the processing of their application) or in their visit to the High Commission. 26 The respondent submits that the reasons were adequate. The content of the duty of procedural fairness in decisions of visa officers is at the low end of the spectrum. This is particularly true where the decision under review is a request to have a file reopened. The reasons show that the officer considered the applicant’s submissions and determined that the request could not be granted. As such, the reasons permit this Court to understand why the officer made his decision and to determine whether the officer’s conclusion is within the range of acceptable outcomes. 27 Finally, the respondent submits that this Court should dismiss the applicants’ application or refuse to grant the remedy sought because they are not coming to Court with clean hands due to their failure to make a timely disclosure of the charges. By failing to make timely disclosure of the principal applicant’s criminal charges, the applicants effectively mis- led immigration authorities.

Applicants’ Written Reply 28 The applicants criticize the respondent’s assertion that the lack of explicit statutory authority to extend the validity of a visa indicates that the discretion is very limited. Rather, the exercise of discretion depends on the context and can be broad where equitable factors are considered. 29 The applicants submit that they are not merely equating a negative decision with a refusal to exercise jurisdiction. The officer did not say that he reviewed the facts and decided not to exercise his discretion. Rather, he said it was not possible to reopen the file, thereby indicating that he did not have the authority to do so. As such, it was a refusal to exercise jurisdiction, not a decision on the merits. 30 The applicants also submit that the requirements of fairness are not based solely on the character of the decision maker or the location of the applicant, but are also based on the interests at stake. In this case, the officer’s decision has resulted in the youngest member of the family being left behind in India. The decision is therefore significant to the applicants and their family, thereby warranting greater procedural fairness. Bajwa v. Canada (MCI) John A. O’Keefe J. 225

Analysis and Decision Issue 1 What is the appropriate standard of review? 31 The parties disagree on the appropriate standard of review. However, this disagreement pertains primarily to the classification of the issues that arise on this application. The applicants argue that the main issue pertains to jurisdiction, whereas the respondent submits that this application is nothing more than an assessment of the officer’s exercise of discretion. The evaluation of these separate issues is presented further below. Here, the question is limited to what the appropriate standard of review is for the different issues. 32 Where previous jurisprudence has determined the standard of review applicable to a particular issue before the court, the reviewing court may adopt that standard (see New Brunswick (Board of Management) v. Dun- smuir, 2008 SCC 9, [2008] 1 S.C.R. 190 (S.C.C.) at paragraph 57). 33 Subsection 11(1) of the Act requires foreign nationals who wish to reside permanently in Canada to apply for and obtain visas before coming to Canada. It is established law that the standard of review for visa officers’ assessment under this provision is reasonableness (see Kumarasekaram v. Canada (Minister of Citizenship & Immigration), 2010 FC 1311, [2010] F.C.J. No. 1625 (F.C.) at paragraph 8; and Sellappha v. Canada (Minister of Citizenship & Immigration), 2011 FC 1379, [2011] F.C.J. No. 1690 (F.C.) at paragraph 33). 34 Similarly, in a recent decision, the Supreme Court of Canada explained that where reasons are issued, the reasoning contained therein is reviewable on a reasonableness standard. As explained by Madam Jus- tice Abella in N.L.N.U. v. Newfoundland & Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708 (S.C.C.) at paragraph 22: It is true that the breach of a duty of procedural fairness is an error in law. Where there are no reasons in circumstances where they are required, there is nothing to review. But where, as here, there are reasons, there is no such breach. Any challenge to the reasoning/result of the decision should therefore be made within the reasonableness analysis. [emphasis added] 35 In reviewing the officer’s decision on the standard of reasonableness, the Court should not intervene unless the officer came to a conclusion that is not transparent, justifiable and intelligible and within the range of acceptable outcomes based on the evidence before it (see Dunsmuir 226 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

above, at paragraph 47; and Khosa v. Canada (Minister of Citizenship & Immigration), 2009 SCC 12, [2009] S.C.J. No. 12 (S.C.C.) at paragraph 59). As the Supreme Court held in Khosa above, it is not up to a reviewing court to substitute its own view of a preferable outcome, nor is it the function of the reviewing court to reweigh the evidence (at paragraphs 59 and 61). 36 Conversely, as stated by the respondent, issues of true jurisdiction are reviewable on a correctness standard. These questions are narrow and “arise where the tribunal must explicitly determine whether its statutory grant of power gives it the authority to decide a particular matter” (see Dunsmuir above, at paragraph 59). Similarly, issues pertaining to the fettering of discretion are reviewable on a correctness standard (see Thamotharem v. Canada (Minister of Citizenship & Immigration), 2007 FCA 198, [2007] F.C.J. No. 734 (F.C.A.) at paragraph 33). No deference is owed to the officer on these issues (see Dunsmuir above, at paragraph 50).

Issue 2 Did the officer err in failing to exercise jurisdiction or in fettering his discretion? 37 The applicants submit that the issues they raise pertain to the officer’s understanding of its jurisdiction in extending permanent resident visas. The applicants submit that the officer committed an error of jurisdiction by either refusing to exercise jurisdiction or by fettering his discretion by limiting his exercise to the example provided in the OP-1 Manual. 38 The assessment of the applicants’ arguments necessitates a review of visa officers’ jurisdiction as provided in the Act and the Regulations. Subsection 6(1) of the Act empowers the Minister to designate persons as officers to carry out any purpose of any provision of the Act and requires the Minister to specify the powers and duties of the officers so designated. 39 Foreign nationals may not enter Canada to remain on a permanent basis without first obtaining a permanent resident visa (section 6 of the Regulations). Officers may issue this visa if they are satisfied that the foreign national is not inadmissible and meets the requirements of the Act (subsection 11(1) of the Act). There are no explicit provisions in either the Act or the Regulations that state whether or not visa officers may extend or renew permanent residence visas. Under the Procedures for Visa Issuance section of the Regulations (Part 4, Division 1), the sole restriction on officers issuing visas is that visas “shall not be issued to a Bajwa v. Canada (MCI) John A. O’Keefe J. 227

foreign national who is subject to an unenforced removal order” (section 25 of the Regulations). 40 As indicated, there is no direction provided in the Act or Regulations on time limits or extensions of expired permanent residence visas. How- ever, the OP-1 Manual, which is intended to provide general processing guidelines to help officers meet the objectives of immigration policy, does include direction on extending the validity of visas (section 5.28). This section clearly states that: The validity of a permanent resident visa may not be extended. Nor can replacement visas be issued with a new validity date. If foreign nationals do not use their visas, they must make a new application for a permanent residence visa. 41 One exception is provided under section 5.28 of the OP-1 Manual: Sometimes, due to factors beyond their control, applicants receive visas that are valid for less than two months. If they cannot travel before their visas expire, officers should update whichever requirement (e.g., medical) was used to set the visa validity. When a new validity date has been obtained, a new visa will be issued. 42 It is difficult to determine the reason for the officer’s denial of the principal applicant’s visa extension request from the reasons, which merely state: We regret to advise you that it will not be possible to re-open our file and extend the visa of Gurpreet Singh at this time. 43 The officer’s affidavit, sworn on November 14, 2011, offers little further clarification. However, on cross-examination, the officer explained that he deemed it not possible to reopen the file and extend the visa based on the standard office procedure, as provided in the OP-1 Manual. As such, the officer’s decision raises a question on whether the OP-1 Man- ual unduly fetters visa officers’ discretion to determine for themselves, case-by-case, whether to extend the validity of visas. 44 The OP-1 Manual is a guideline, not law. As such, it can enable an agency to deal with a problem comprehensively and proactively, rather than incrementally and reactively on a case by case basis (see Thamotharem above, at paragraph 55). It can also be of assistance to the Court because guidelines may validly influence a decision maker’s conduct and may therefore help in assessing whether a decision is reasonable or not (see Thamotharem above, at paragraph 59). However, guidelines are not binding on the Minister and they cannot fetter the discretion of an officer (see Lee v. Canada (Minister of Citizenship & Immigration), 2008 228 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

FC 1152, [2008] F.C.J. No. 1632 (F.C.) at paragraph 29). As explained by the Federal Court of Appeal in Thamotharem above: 62. Nonetheless, while agencies may issue guidelines or policy statements to structure the exercise of statutory discretion in order to enhance consistency, administrative decision-makers may not apply them as if they were law. Thus, a decision made solely by reference to the mandatory prescription of a guideline, despite a request to deviate from it in the light of the particular facts, may be set aside, on the ground that the decision-maker’s exercise of discretion was unlawfully fettered [...] [...] 78. [...] the fact that a guideline is intended to establish how discretion will normally be exercised is not enough to make it an unlawful fetter, as long as it does not preclude the possibility that the decision- maker may deviate from normal practice in the light of particular facts [...] [emphasis in original] 45 Based on this judicial guidance, I do find that the officer fettered his discretion in denying the applicants’ request for a visa extension. The guideline provided in the OP-1 Manual uses mandatory language (“The validity of a permanent resident visa may not be extended” [emphasis added]). Aside from the narrow exception where visas are valid for less than two months, the guideline precludes the possibility that the officer may deviate from normal practice in the light of the particular facts of a case such as this one. No such limitation is provided in the Act or the Regulations. 46 The issue of the fettering of discretion is reviewable on a correctness standard and therefore little deference is owed to the officer. As the officer relied on guidelines rather than statutory limitations, I find that he fettered his discretion and incorrectly determined that the principal applicant’s file could not be reopened. The particular facts of this case neces- sitate deviation from the normal practice prescribed by the standard office procedure in the OP-1 Manual. 47 This finding also finds support in the decision of Kheiri v. Canada (Minister of Citizenship & Immigration) (2000), 193 F.T.R. 112, [2000] F.C.J. No. 1383 (Fed. T.D.). In Kheiri above, Mr. Justice Allen Linden held that “a Visa Officer may re-open a Visa Hearing to extend the date of its effectiveness if it is felt to be in the interest of justice to do in unusual circumstances” (at paragraph 8). The unique circumstances of this case, namely, the false charges against the principal applicant and his Bajwa v. Canada (MCI) John A. O’Keefe J. 229

separation from his family, suggests that this is a perfect situation for extending a visa in the interest of justice.

Issue 3 Did the officer deny the applicants procedural fairness? 48 The applicants also criticize the officer’s reasons and submit that the lack of explanation or analysis supporting the officer’s conclusion was a breach of procedural fairness. 49 As stated above, the question of the adequacy of reasons was recently reviewed by the Supreme Court of Canada. Madam Justice Abella explained that the “adequacy” of reasons is not a stand alone basis for quashing a decision. Rather, “reasons must be read together with the outcome and serve the purpose of showing whether the result falls within a range of possible outcomes” (see Nurses’ Union above, at paragraph 14). The Dunsmuir criteria will be met “if the reasons allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes” (see Nurses’ Union above, at paragraph 16). In Nurses’ Union above, the reasons were upheld because they “showed that the arbitrator was alive to the question at issue and came to a result well within the range of reasonable outcomes” (at paragraph 26). 50 In this case, the officer’s reasons are very brief. The officer merely states that it will not be possible to reopen the file and extend the visa “at this time”. Further, as the principal applicant’s parents are landed, the officer states that they can apply to sponsor their son as a dependent. As stated by the respondent, this fails to take into account the age of the principal applicant which prohibits his parents from sponsoring him as their dependent. 51 The problem with these reasons is that they do not allow this Court to understand why the officer made its decision. As stated above, it was not until the officer was cross-examined that it was confirmed that his decision was based on the standard office procedure outlined in the OP-1 Manual. Based on the decision alone, it is not possible to determine whether the conclusion is within the range of acceptable outcomes. I therefore find that although the content of the duty of procedural fairness in decisions made by visa officers is generally at the low end of the spectrum, the decision in this case contained inadequate reasons which denied the applicants procedural fairness. 230 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

Issue 4 Should this application be dismissed because the applicants are not coming to Court with clean hands? 52 Finally, the respondent submits that this application should be dismissed because the applicants have not come to Court with clean hands. In support, the respondent refers to section 51 of the Regulations that requires foreign nationals holding permanent resident visas to inform officers of material facts, relevant to the issuance of their visa, that have changed since the visa was issued or that were not divulged when it was issued. 53 In this case, the respondent submits that the charges made against the principal applicant in India constituted material facts and these were not divulged by his parents on their arrival and examination in Canada. 54 Information becomes material when it is both relevant and affects the process undertaken or the final decision (see Koo v. Canada (Minister of Citizenship & Immigration), 2008 FC 931, [2008] F.C.J. No. 1152 (F.C.) at paragraph 19). In this case, the information on the charges against the principal applicant was relevant to and could have affected the final decision on his own permanent residency application. However, it was less relevant to his parent’s applications. 55 The officer did not refer in his decision to either section 51 of the Regulations or the applicants’ failure to mention the charges against the principal applicant at an earlier time. There is therefore no reason to believe that the officer rendered his decision on this basis. Although it would have been preferable for the applicants to disclose the charges at an earlier time, I find that there was sufficient evidence of them having attempted to do so in November 2010 (when they visited the High Com- mission); it was not material to the principal applicant’s own permanent residence application and there was nothing in the decision to suggest the failure to disclose impacted the officer’s decision. 56 In summary and recalling that one of the main objectives of the Act is to see families reunited in Canada (paragraph 3(1)(d)), I find that the officer erred in his analysis of the principal applicant’s application for an extension of his permanent resident visa. In the particular facts of this case, the officer fettered his discretion by relying on the OP-1 Manual in refusing to consider extending the principal applicant’s visa. The officer’s decision was also inadequate to allow this Court to fully understand his underlying reasons. Finally, although the applicants should have disclosed the charges against the principal applicant at an earlier time, I do not find this was a material fact that led to the officer’s deci- Bajwa v. Canada (MCI) John A. O’Keefe J. 231

sion. The decision should therefore be set aside and remitted for redetermination by another officer. 57 The applicants requested that questions relating to discretion and lack of clean hands be certified if I based my decision on these points. My decision is not based on these points, hence, I need not entertain these questions for certification. The respondent did not wish to submit any question for certification.

Judgment THIS COURT’S JUDGMENT is that the application for judicial review be allowed and the matter referred to a different officer for redetermination. Application granted.

Annex Relevant Statutory Provisions Immigration and Refugee Protection Act, SC 2001, c 27 3. (1) The objectives of this Act with respect to immigration are ... (d) to see that families are reunited in Canada; . . . 6. (1) The Minister may designate any persons or class of persons as officers to carry out any purpose of any provision of this Act, and shall specify the powers and duties of the officers so designated. 11. (1) A foreign national must, before entering Canada, apply to an officer for a visa or for any other document required by the regulations. The visa or document may be issued if, following an examination, the officer is satisfied that the foreign national is not inadmissible and meets the requirements of this Act. 72. (1) Judicial review by the Federal Court with respect to any matter — a decision, determination or order made, a measure taken or a question raised — under this Act is commenced by making an application for leave to the Court. Immigration and Refugee Protection Regulations, SOR/2002-227 6. A foreign national may not enter Canada to remain on a permanent basis without first obtaining a permanent resident visa. 25. A visa shall not be issued to a foreign national who is subject to an unenforced removal order. 232 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

51. A foreign national who holds a permanent resident visa and is seeking to become a permanent resident must, at the time of their examination, (a) inform the officer if (i) the foreign national has become a spouse or common-law partner or has ceased to be a spouse, common-law partner or conjugal partner after the visa was issued, or (ii) material facts relevant to the issuance of the visa have changed since the visa was issued or were not divulged when it was issued; and (b) establish that they and their family members, whether accompanying or not, meet the requirements of the Act and these Regulations. Can. Soc. of Imm. Consultants v. Canada (MCI) 233

[Indexed as: Canadian Society of Immigration Consultants v. Canada (Minister of Citizenship & Immigration)] The Canadian Society of Immigration Consultants, Appellant and The Minister of Citizenship and Immigration, Respondent Federal Court of Appeal Docket: A-22-12 2012 FCA 194 No¨el, John M. Evans, Sharlow JJ.A. Heard: June 25, 2012 Judgment: June 25, 2012 Administrative law –––– Review for lack or excess of jurisdiction — Ultra vires –––– Governor in Council and Minister of Citizenship and Immigration made regulations removing appellant society as regulator of immigration consultants and replacing it with regulatory council — Society impugned validity of regulations on basis that enactments were ultra vires and exceeded regulation- making authority under s. 91 of Immigration and Refugee Protection Act (IRPA) — Society’s application for judicial review was dismissed — Society appealed, submitting that regulator cannot be removed unless Minister has found that it has failed to perform its statutory mandate of regulating immigration consultants in public interest — Appeal dismissed — Society alleged that Minister made no findings of regulatory failure by it and therefore, regulations removing it as regulator and designating council were invalid — It was open to Minister on material before him to conclude that public confidence in society as regulator of immigration consultants had eroded and that it was in public interest to designate another non-governmental entity to act as regulator under new statutory scheme — Minister was charged with making important public policy decision on matter affecting integrity of administration of immigration and refugee law — In these circumstances, replacing one non-governmental regulator with another did not directly or indirectly so impinge on independence of immigration consultants and their regulation in public interest as to warrant reading in limitation on regulation-making powers of Governor in Council and Minister — Further, process leading to enactment of regulations was not procedurally unfair. Administrative law –––– Requirements of natural justice — Right to hearing — Duty of fairness –––– Governor in Council and Minister of Citizenship and Immigration made regulations removing appellant society as regulator of immigration consultants and replacing it with regulatory council — Society impugned validity of regulations on basis that enactments were ultra vires and exceeded regulation-making authority under s. 91 of Immigration and Refugee 234 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

Protection Act (IRPA) — Society’s application for judicial review was dismissed — Society appealed, submitting that that process leading to enactment of regulations was procedurally unfair — Appeal dismissed — Even if duty of fairness and doctrine of legitimate expectations applied, society had ample opportunities to make submissions and to respond to dissatisfaction that had been expressed about its performance — Fact that society failed to dispel Minister’s view that public had lost confidence in it, and that it was not regarded as having adequately addressed those concerns in any of its submissions during process for selecting regulator, was not attributable to any shortcoming in selection process — Given public policy nature of decision to replace society and identity of decision-makers entrusted by Parliament with task, no breach of duty of procedural fairness occurred that would warrant invalidating regulations — Similarly, regulations were not invalid on ground that reasonable person who was informed and had thought matter through would believe that Minister had closed mind, assuming that this was basis for impugning regulations — Fact that Min- istry officials had serious reservations about society’s ability to act as regulator did not establish that, having set up selection process, Minister was not or would not appear to be open to persuasion that society should remain as regulator. Immigration and citizenship –––– Constitutional issues — Legislative powers –––– Governor in Council and Minister of Citizenship and Immigration made regulations removing appellant society as regulator of immigration consultants and replacing it with regulatory council — Society impugned validity of regulations on basis that enactments were ultra vires and exceeded regulation-making authority under s. 91 of Immigration and Refugee Protection Act (IRPA) — So- ciety’s application for judicial review was dismissed — Society appealed, submitting that regulator cannot be removed unless Minister has found that it has failed to perform its statutory mandate of regulating immigration consultants in public interest — Appeal dismissed — Society alleged that Minister made no findings of regulatory failure by it and therefore, regulations removing it as regulator and designating council were invalid — It was open to Minister on material before him to conclude that public confidence in society as regulator of immigration consultants had eroded and that it was in public interest to designate another non-governmental entity to act as regulator under new statutory scheme — Minister was charged with making important public policy decision on matter affecting integrity of administration of immigration and refugee law — In these circumstances, replacing one non-governmental regulator with another did not directly or indirectly so impinge on independence of immigration consultants and their regulation in public interest as to warrant reading in limitation on regulation-making powers of Governor in Council and Minister — Further, process leading to enactment of regulations was not procedurally unfair. Can. Soc. of Imm. Consultants v. Canada (MCI) John M. Evans J.A. 235

Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Generally — referred to s. 74(d) — considered Immigration and Refugee Protection Act, Act to amend the, S.C. 2011, c. 8 Generally — referred to

APPEAL from judgment reported at Canadian Society of Immigration Consultants v. Canada (Minister of Citizenship & Immigration) (2011), 2011 FC 1435, 2011 CarswellNat 5242, 2011 CF 1435, 2011 CarswellNat 6082, 3 Imm. L.R. (4th) 175, 35 Admin. L.R. (5th) 196 (F.C.), upholding enactments of Min- ister of Citizenship and Immigration and Governor in Council revoking appellant’s designation as regulator of immigration consultants.

John Callaghan, Benjamin Na, for Appellant Marianne Zoric, Catherine Vasilaros, Neal Samson, for Respondent

John M. Evans J.A. (orally):

1 This is an appeal by the Canadian Society of Immigration Consultants (Society) from a decision of the Federal Court, reported at 2011 FC 1435, 3 Imm. L.R. (4th) 175 (F.C.). In that decision, Justice Martineau dismissed an application for judicial review in which the Society impugned the validity of regulations made by the Governor-in-Council and by the Minister of Citizenship and Immigration (Minister) removing the Society as the regulator of immigration consultants and replacing it with the Immigration Consultants of Canada Regulatory Council (Council). 2 The Judge certified the following question for appeal under paragraph 74(d) of the Immigration and Refugee Protection Act, S.C. 2011, c. 27 (IRPA): Are the Regulations Amending the Immigration and Refugee Protec- tion Regulations (SOR/2011-129), the Order Fixing June 30, 2011 as the Day on which Chapter 8 of the Statutes of Canada, 2011, Comes into Force (SI/2011-57) and/or the Regulations Designating a Body for the Purposes of Paragraph 91(2)(c) of the Immigration and Refu- gee Act (SOR/2011-142) ultra vires, illegal and/or invalid in law? 3 The Society argues that despite the broad discretion conferred by IRPA on the Governor-in-Council and the Minister, a regulator cannot be removed unless the Minister has found that it has failed to perform its statutory mandate of regulating immigration consultants in the public interest. The basis of the argument is that the statutory scheme envisages 236 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

that the regulator of immigration consultants will be independent of the Minister, so that when representing clients in disputes with the Minister immigration consultants can act without fear of regulatory reprisal. The Society alleges that the Minister made no findings of regulatory failure by the Society and that the regulations removing it as regulator and designating the Council are therefore invalid. 4 We do not accept this argument. In our view, it was open to the Min- ister on the material before him to conclude that public confidence in the Society as the regulator of immigration consultants had eroded and that it was in the public interest to designate another non-governmental entity to act as the regulator under the new statutory scheme introduced in 2011 by Bill C-35. The Minister was charged with making an important public policy decision on a matter affecting the integrity of the administration of immigration and refugee law. 5 In the circumstances of this case, replacing one non-governmental regulator by another did not directly or indirectly so impinge on the independence of immigration consultants and their regulation in the public interest as to warrant reading in the limitation on the regulation-making powers of the Governor-in-Council and the Minister that the Society urged upon us. 6 The Society also argued that the process leading to the enactment of the regulations was procedurally unfair and did not meet the standard of being “fair and open” as promised by the Minister. 7 We disagree. In our opinion, even if the duty of fairness and the doctrine of legitimate expectations applied here - which we do not decide - the Society had ample opportunities at different stages of the process to make submissions and to respond to the various dissatisfactions that had been expressed about its performance, particularly by witnesses who appeared before the House of Commons Standing Committee on Citizen- ship and Immigration when it was investigating the regulation of immigration consultants in 2008. 8 The fact that the Society subsequently failed to dispel the Minister’s view that the public had lost confidence in the Society, and that it was not regarded as having adequately addressed those concerns in any of its submissions during the selection process, was not attributable to any shortcoming in the process for selecting the regulator. Given the public policy nature of the decision to replace the Society and the identity of the decision-makers entrusted by Parliament with the task (the Governor-in- Council and the Minister), we are not satisfied that any breach of the Can. Soc. of Imm. Consultants v. Canada (MCI) John M. Evans J.A. 237

duty of procedural fairness occurred that would warrant invalidating the regulations. 9 Similarly, we are not persuaded that the regulations are invalid on the ground that a reasonable person who was informed and had thought the matter through in a practical manner would believe that the Minister had a closed mind, assuming that this is a basis for impugning these regulations, a matter that we need not decide. The record indicates that officials of the Minister had serious reservations about the Society’s ability to act as regulator in view of the history of complaints and the Society’s response to them. However, this does not establish that, having set up a selection process, the Minister was not, or would not appear to the reasonable observer to be, open to persuasion that the Society should remain as the regulator. 10 For these reasons, the appeal will be dismissed. Counsel for the Min- ister conceded that there are no special circumstances for the award of costs and none will be awarded. Appeal dismissed. 238 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

[Indexed as: Singh v. Canada (Minister of Citizenship & Immigration)] Khan Khokhar, Appellant and The Minister of Public Safety and Emergency Preparedness Canada, Respondent Federal Court of Appeal Docket: A-263-11 2012 FCA 66 Eleanor R. Dawson, Trudel, Stratas JJ.A. Heard: February 27, 2012 Judgment: February 27, 2012 Immigration and citizenship –––– Appeals to Federal Court of Appeal and Supreme Court of Canada — Jurisdiction –––– Without certification — Where impugned order made not on notice — Immigration consultant K represented alien, subject of removal order — Alien brought application for stay of removal — While application was pending, K wrote to airline scheduled to execute removal and advised airline, supported by physician’s note, that alien was experiencing complicated pregnancy — Letter stated inter alia that “if [alien] is allowed to travel by your airline you will be held responsible for any problems that develop as a result” — In judgment dismissing alien’s stay application, without notice to K and without giving K opportunity to make submissions, applications judge ordered costs against K personally and directed Minister to advise K’s regulatory body of K’s conduct in proceeding — K appealed directly to Court of Appeal, without certification of question as required on face of s. 74(d) of Immigration and Refugee Protection Act — Appeal allowed — Respondent conceded that K was entitled to notice that order might be made against K personally and to make submissions — Requirement in s. 74(d) of Act for certification of question of general importance did not bar present appeal, as impugned order was made not on notice — Court of Appeal retained jurisdiction to hear appeal, and on merits appeal was properly allowed. Professions and occupations –––– Miscellaneous –––– Immigration consultants — Immigration consultant K represented alien, subject of removal order — Alien brought application for stay of removal — While application was pending, K wrote to airline scheduled to execute removal and advised airline, supported by physician’s note, that alien was experiencing complicated pregnancy — Let- ter stated inter alia that “if [alien] is allowed to travel by your airline you will be held responsible for any problems that develop as a result” — In judgment dismissing alien’s stay application, without notice to K and without giving K opportunity to make submissions, applications judge ordered costs against K per- Singh v. Canada (MCI) Eleanor R. Dawson J.A. 239

sonally and directed Minister to advise K’s regulatory body of K’s conduct in proceeding — K appealed directly to Court of Appeal, without certification of question as required on face of s. 74(d) of Immigration and Refugee Protection Act — Appeal allowed — Respondent conceded that K was entitled to notice that order might be made against K personally and to make submissions — Re- quirement in s. 74(d) of Act for certification of question of general importance did not bar present appeal, as impugned order was made not on notice — Court of Appeal retained jurisdiction to hear appeal, and on merits appeal was properly allowed as notice and opportunity to make submissions were clearly required in present case — For clarity, order compelling Minister to contact regulatory body was struck out. Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Generally — referred to s. 72(2)(e) — referred to s. 74(d) — considered

APPEAL by immigration consultant K from judgment reported at Singh v. Canada (Minister of Citizenship & Immigration) (2011), 2011 CarswellNat 6107 (F.C.), inter alia ordering costs and certain sanctions against K.

Anthony Moustacalis, for Appellant Judy Michaely, Bradley Bechard, for Respondent

Eleanor R. Dawson J.A. (orally):

1 This is an appeal by Khan Khokhar from an order of the Federal Court made on June 7, 2011. 2 The order, issued in Court file No. IMM-3647-11 [Singh v. Canada (Minister of Citizenship & Immigration), 2011 CarswellNat 6107 (F.C.)], provided that: a. the motion of the applicant, Bhasmini Singh, for an order staying her removal from Canada was dismissed; b. an award of costs, fixed in the amount of $1000.00, was made against Ms. Singh’s former immigration consultant Mr. Khokhar; and 240 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

c. a copy of the Court’s order was to “be brought to the attention of the appropriate governing bodies that Mr. Khokhar may be a member of for any action they may deem appropriate.” 3 Mr. Khokhar was not a party to that proceeding and had no notice that any order would be made against him. At the hearing, the respondent did not ask for any relief against Mr. Khokhar. 4 The Judge’s reasons for granting relief against Mr. Khokhar were expressed as follows: 7. I would be remiss if I did not consider the affidavit material filed by the Respondent with respect to the activities of Khan Khokhar, an immigration consultant who acted for the Applicant throughout her past immigration history. Mr. Khokhar wrote to Caribbean Airlines on May 31, 2011 and advised the airline of the Applicant’s pregnancy and stated that the Applicant was having complications with her pregnancy. The letter also states “Please note that if she is allowed to travel by your airline you will be held responsible for any problems that develop as a result”. This correspondence was not con- veyed to the Respondent by Mr. Khokhar but was communicated by the airline to the Respondent just prior to the stay application this morning. In my view such a letter was threatening in tone and improper and sought to prevent the removal of the Applicant despite what this Court may have ordered. Such behaviour must be discour- aged as it is an affront to both the immigration process and this Court. I would direct that a copy of this Order be brought to the attention of the appropriate governing bodies that Mr. Khokhar may be a member of for any action they may deem appropriate. a. Further, I am of the view that an award of costs should be made against Mr. Khokhar personally in this matter. b. For these reasons, the motion for a stay of removal is dismissed and the Respondent is entitled to costs fixed in the sum of $1,000.00 as against Mr. Khan Khokhar personally. 5 The text of Mr. Khokhar’s letter was as follows: We represent Ms. Bhasmini Singh who is scheduled by Canada Bor- der Services Agency Immigration Section to depart Toronto (Pearson Int. Airport) to Guyana on June 7, 2011 at 23:30 p.m. It is our duty to advise you that the Canada Border Services Agency has NOT disclosed that the passenger, Bhasmini Singh (our client) is pregnant and has only seven (7) weeks left for delivery and is having complications related to her pregnancy. Her Doctor advised that she needs bed rest, she is currently undergoing test [sic] and follow up with her gynaecologist for further investigation of the complications. Singh v. Canada (MCI) Eleanor R. Dawson J.A. 241

Her Doctor has advised that she is not fit to travel until after her delivery; however, arrangements have still been made for her removal from Canada on June 7, 2011 via your airline. We enclose copies of supporting documents from Dr. Allan H.H. Leung M.D. Please note that if she is allowed to travel by your airline you will be held responsible for any problems that develop as a result. We trust that this information is adequate; however, if there is need for more information, please feel free to contact the undersigned. Thank you. 6 Mr. Khokhar’s letter in turn enclosed a letter from Dr. Leung, the text of which stated: This patient is attending my office. Right now she is pregnant and in her second trimester. Recently she developed dizziness, weakness and fainting spells. These symptoms are related to her pregnancy and also resulted from stress and anxiety related to the fact that she was ordered to leave Canada. She is at present undergoing tests and will be seeing her gynecologist for further investigation and follow-up. At the present time she is advised not to travel until she has completed her investigations and consultation with her gynecologist/obstetrician. She will begin her third trimester soon, it is advisa- ble that she does not travel until after her delivery. Sincerely yours, 7 On this appeal, the respondent fairly concedes that Mr. Khokhar was entitled to notice of the Court’s intention to make an order against him. The respondent also concedes the Mr. Khokhar was entitled to an opportunity to be heard before an order was made against him. The opportunity to be heard included the right to adduce evidence on his behalf and to challenge the respondent’s evidence. Mr. Khokhar received neither notice of the Court’s intention nor an opportunity to be heard. 8 The respondent argues, however, that this Court does not have jurisdiction to hear an appeal from the decision of the Federal Court in the absence of certification of a serious question of general importance (see: subsection 74(d) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (Act)). The respondent does not make any submission with respect to the application of subparagraph 72(2)(e) of the Act, relating to interlocutory judgments, and we decline to consider it. 9 Subsection 74(d) of the Act provides: 74. Judicial review is subject to the following provisions: 242 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

(d) an appeal to the Federal Court of Appeal may be made only if, in rendering judgment, the judge certifies that a serious question of general importance is involved and states the question. 74. Les règles suivantes s’appliquent a` la demande de contrôle judiciaire: d) le jugement consécutif au contrôle judiciaire n’est susceptible d’appel en Cour d’appel fédérale que si le juge certifie que l’affaire soulève une question grave de portée générale et enonce´ celle-ci. 10 In subsection 74(d) Parliament has evidenced its intention to limit the right of appeal to this Court by parties to applications for judicial review brought under the Act. That said, we cannot read this provision as de- priving a non-party from a right of appeal in the rare circumstance where an order is made against a non-party without any notice and without affording the non-party any opportunity to be heard. 11 We therefore reject the submission of the respondent that we lack jurisdiction to hear this appeal in the unique circumstances before us. 12 Turning to the merits of the appeal, in the circumstances here, where the order under appeal was made without any notice to Mr. Khokhar and without affording him any opportunity to be heard, we owe no deference to the findings of the Federal Court Judge. 13 On the record before us, portions of which are set out above, we are not satisfied that the order under appeal can be sustained. This is particularly so because at the hearing before the Federal Court the respondent did not seek costs or any other relief against Mr. Khokhar. 14 For these reasons, the appeal is allowed with costs and the order of the Federal Court as it pertains to Mr. Khokhar is set aside. For clarity, the Federal Court’s direction with respect to Mr. Khokhar’s governing bodies is of no effect. Appeal allowed. Sandhu v. Canada (MCI) 243

[Indexed as: Sandhu v. Canada (Minister of Citizenship & Immigration)] Kulwant Kaur Sandhu, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-3198-11 2012 FC 217 Edmond P. Blanchard J. Heard: February 9, 2012 Judgment: February 15, 2012 Immigration and citizenship –––– Admission — Immigrants — Family class — Members of family class — Failure to disclose –––– Applicant was widow with three children — Applicant applied for permanent residence under family class with her daughter as her dependent child — Question arose as to whether daughter was biological daughter of applicant — Visa officer found that there was insufficient evidence to prove parent-child relationship between applicant and daughter and informed applicant that visa officer would accept DNA results as proof of relationship — Applicant admitted that daughter was not natural daughter but adopted daughter who had been in her custody since 1989 — Visa officer found applicant inadmissible to Canada by reason of misrepresentations and rejected application for permanent residence — Visa officer received copy of adoption papers and other documents showing that applicant was her mother at all relevant times — Applicant brought application for judicial review of visa officer’s decision — Application granted — Matter was to be returned for reconsideration before different visa officer — Officer committed reviewable error — There was no evidentiary basis for finding of misrepresentation — Applicant did not claim in her application that daughter was biological daughter — In response to visa officer’s letter, applicant truthfully acknowledged that she was adopted daughter and explained circumstances of adoption — No evidence was adduced to indicate that applicant was required to distinguish on her application whether her daughter was either her birth daughter or her adopted daughter — On evidence before visa officer, there was no basis to find that applicant concealed her relationship with daughter — Fact that applicant failed to provide adoption papers at that time did not lead to conclusion that she was concealing or misrepresenting relationship — There was no evidence to indicate that applicant at any time indicated that she was birth mother of daughter. 244 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

Cases considered by Edmond P. Blanchard J.: New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1, 69 Admin. L.R. (4th) 1, 69 Imm. L.R. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) [2008] 1 S.C.R. 190, 844 A.P.R. 1, (sub nom. Dunsmuir v. New Brunswick) 2008 C.L.L.C. 220-020, D.T.E. 2008T-223, 329 N.B.R. (2d) 1, (sub nom. Dunsmuir v. New Brunswick) 170 L.A.C. (4th) 1, (sub nom. Dunsmuir v. New Brunswick) 291 D.L.R. (4th) 577, 2008 CarswellNB 124, 2008 CarswellNB 125, 2008 SCC 9, 64 C.C.E.L. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) 95 L.C.R. 65, [2008] S.C.J. No. 9, [2008] A.C.S. No. 9 (S.C.C.) — referred to Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Generally — referred to s. 40(1)(a) — referred to s. 72(1) — pursuant to s. 74(d) — referred to

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

Barinder S. Sanghera, for Applicant Edward Burnet, for Respondent

Edmond P. Blanchard J.:

1 The Applicant, Ms. Kulwant Kaur Sandhu, a citizen of India, applies for judicial review of the March 8, 2011 decision by Immigration Coun- sellor, Bruce Grundison (the Visa Officer), at the Canadian High Com- mission in New Delhi (the Visa Office), rejecting her application for permanent residence. The Applicant seeks an order setting aside the decision and that the application for permanent residence be approved. Alternatively, she asks that the matter be submitted for re-determination by a different visa officer. Her application is brought under subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA].

I. Facts 2 The Applicant is a widow with three children. One of her sons, Avtar Sandhu, lives in Canada as a permanent resident. On July 31, 2006, Avtar Sandhu applied to sponsor the Applicant and his sister, Jaspreet Kaur, for immigration to Canada. Sandhu v. Canada (MCI) Edmond P. Blanchard J. 245

3 On November 13, 2008, the Applicant submitted an application for permanent residence under the Family Class with Jaspreet Kaur as her dependent child. A certified copy of Jaspreet Kaur’s passport listed the Applicant as her mother. 4 On June 28, 2010, the immigration registry at the Visa Office received a letter from a third party alleging that Jaspreet Kaur is not the real daughter of the Applicant but rather her niece living with her family in order to establish her “false identity” for immigration purposes. In light of this letter, the First Secretary for Immigration at the Visa Office wrote to the Applicant on October 20, 2010, stating that he “was not satisfied that there is sufficient evidence to prove the parent-child relationship between you and Jaspreet Kaur Sandhu” and that the Visa Of- fice would accept DNA test results as proof of the relationship. Excerpts of the letter are reproduced below: ... After reviewing the information provided in support of your application, I am not satisfied that there is sufficient evidence to prove the parent-child relationship between you and Jaspreet Kaur Sandhu. Since the documentary evidence you have provided does not enable us to establish parentage between you and the child, and you are unable to obtain other documentary evidence, in place of documentary evidence we will accept the results of a DNA analysis ... If we are not advised within 90 days by a laboratory that you will be proceeding with the DNA testing, we will assume that you are no longer interested in providing a DNA test result and will render a decision on the information available to us at that time. 5 On November 22, 2010, the Visa Office received a letter from the Applicant wherein she admitted that Jaspreet Kaur Sandhu was not her natural daughter but was her adopted daughter who had been in her custody since 1989. She went on to explain that she and her late husband took custody of Jaspreet Kaur from her sister-in-law in 1989 and “vowed” never to disclose this fact to her. 6 On February 24, 2011, the Visa Office received a letter from the Ap- plicant advising that Jaspreet Kaur had married on January 15, 2011, and requested that she be removed from the application. A certified copy of the marriage certificate was attached. 246 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

7 On March 8, 2011, the Visa Officer found the Applicant inadmissible to Canada by reason of misrepresentation pursuant to paragraph 40(1)(a) of the IRPA and rejected her application for permanent residence. 8 On May 9, 2011, the Visa Office received a translated and certified copy of an adoption deed naming the Applicant and her late husband as the adoptive parents of Jaspreet Kaur, which was executed on November 18, 1989. 9 On May 13, 2011, the Applicant filed this application for judicial review of the March 8, 2011 decision.

II. Impugned Decision 10 I reproduce below the relevant passages of the Visa Officer’s refusal letter sent to the Applicant: In our letter dated October 20, 2010, you were requested to undergo DNA testing along with your putative daughter Jaspreet Kaur Sandhu. In response to that request, you wrote us a letter stating that in fact Jaspreet Kaur is not your biological daughter and that you had “inadvertently” not disclosed this fact on your application form because, supposedly, she does not know the truth and you wanted to spare her feelings. I am not convinced by this explanation. You stated that you adopted Jaspreet, who is the second daughter of your sister-in-law, in 1989. However, you were unable to provide evidence that an adoption took place at that time. I am of the opinion that you have engaged in misrepresentation in submitting your application. You concealed the fact that your accompanying dependant, Jaspreet Kaur is not your biological child. The omission was deliberate and in fact only came to light when you and your accompanying dependant, Jaspreet Kaur, were requested to undergo DNA testing. Further, you have not demonstrated that an adoption took place, despite stating that she was adopted. The misrepresentation or withholding of this material fact(s) could have induced errors in the administration of the Act because you and Jaspreet Kaur might have been issued Permanent Resident Visas. As a result, you are inadmissible to Canada for a period of two years from the date of this letter. 11 The Applicant raises the following two issues: a. Did the Visa Officer err in finding that the Applicant was inadmissible pursuant to paragraph 40(1)(a) of the IRPA for misrepresenting that Jaspreet Kaur was her biological daughter? Sandhu v. Canada (MCI) Edmond P. Blanchard J. 247

b. Once advised that Jaspreet Kaur had been adopted, did the Visa Officer breach his duty of procedural fairness by not requesting evidence of the adoption before rendering his final decision?

III. Standard of Review 12 The first issue is a fact-based inquiry reviewable on the reasonableness standard. See: New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9 (S.C.C.) at para 51, [2008] 1 S.C.R. 190 (S.C.C.). 13 The second issue is a question of procedural fairness. Such questions are reviewable on a correctness standard. See Dunsmuir at paragraph 129.

IV. Analysis Did the Visa Officer err in finding that the Applicant was inadmissible pursuant to paragraph 40(1)(a) of the IRPA for misrepresenting that Jaspreet Kaur was her biological daughter? 14 The Applicant argues that she did not misrepresent her relationship with Jaspreet Kaur. She further submits that a person should not be found inadmissible for a misrepresentation unless it consists of a material fact relating to a relevant matter that induces or could induce an error in the administration of the IRPA. The Applicant contends that since Jaspreet Kaur was legally adopted, her misrepresentation could not have led to an error in the administration of the IRPA. 15 The Respondent argues that the Applicant failed to provide any relevant information showing a legal adoption within 90 days of notification of a request for DNA testing. The Respondent contends that the Appli- cant admitted that she misrepresented a fact in her application, and that this fact could have induced an error in the administration of the IRPA. According to the Respondent, by claiming that Jaspreet Kaur was her biological daughter, the Applicant “sought to avoid the scrutiny of the adoption.” 16 The Visa Officer found the Applicant had concealed the fact that her accompanying dependant, Jaspreet Kaur, was not her biological child and consequently found that she engaged in misrepresentation in her application. This finding is not supported in the evidence. In her application for permanent residence, the Applicant did not state that Jaspreet Kaur was her biological daughter. She simply indicated that she was her daughter. In response to the Visa Officer’s October 20, 2010 letter she truthfully acknowledged that Jaspreet Kaur was her adopted daughter 248 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

and went on to explain the circumstance of the adoption. No evidence was adduced to indicate that the Applicant was required to distinguish on her application whether her daughter was either her birth daughter or her adopted daughter. On the evidence before the Visa Officer there was no basis to find that the Applicant concealed her relationship with Jaspreet Kaur. The fact that the Applicant failed to provide the adoption papers at that time does not lead to a conclusion that she was concealing or misrepresenting the relationship. Further, the school records and travel documents provided by the Applicant, including Jaspreet Kaur’s passport, all indicate that the Applicant was her mother at all relevant times. There is no evidence to indicate that the Applicant at any time indicated that she was the birth mother of Jaspreet Kaur. In these particular circumstances, the Officer needed to satisfy himself that there was a misrepresentation. A simple inquiry into the legality of the adoption would have sufficed. I agree with counsel for the Minister that it would have been far better had the Applicant provided the adoption papers before the decision was rendered. Had that been the case, it is unlikely the within application would have ever been filed. However, such an error cannot be fatal to an application for permanent residence in circumstances where there is no evidentiary basis for a finding of misrepresentation.

V. Conclusion 17 There being no evidence of a misrepresentation pursuant to paragraph 40(1)(a) of the IRPA, the Officer committed a reviewable error in deciding that the Applicant was inadmissible to Canada on that basis. In the result, the Application for Judicial Review will be allowed. The matter is to be returned for reconsideration before a different Visa Officer. 18 Given my above determination, there is no need to consider the second issue raised. 19 No question was proposed and none will be certified as a serious question of general importance pursuant to paragraph 74(d) of the Immi- gration and Refugee Protection Act, [SC 2001, c 27].

Judgment THIS COURT’S JUDGMENT is that: 1. The Application for Judicial Review is allowed; 2. The matter is to be returned for reconsideration before a different Visa Officer; and Sandhu v. Canada (MCI) Edmond P. Blanchard J. 249

3. No question of general importance is certified. Application granted. 250 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

[Indexed as: Osorio v. Canada (Minister of Citizenship & Immigration)] Pamela Osorio, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-8560-11 2012 FC 882 James W. O’Reilly J. Heard: July 4, 2012 Judgment: July 13, 2012 Immigration and citizenship –––– Admission — Application for temporary resident or immigrant visa — Powers and duties of visa or immigration officer — Rendering decision –––– Applicant applied for permanent residence in Canada after receiving job offer — Immigration officer concluded that job offer was not genuine and denied applicant’s application — Applicant brought application for judicial review of decision of immigration officer — Application granted — Immigration officer’s decision was unreasonable because it did not adequately explain why officer concluded that job offer was not genuine — Im- migration officer did not adequately consider evidence before her that supported genuineness of applicant’s intentions — In face of evidence, it was difficult to understand why officer harboured ongoing concerns about applicant’s reasons for being interested in job, her knowledge of business, her familiarity with her intended destination, and lack of recent contact with employer — Immigration officer did not explain what alternative motives she thought applicant had for seeking job beneath her current qualification and salary, or what evidence would have allayed her concerns.

APPLICATION for judicial review of decision of immigration officer that applicant’s job offer was not genuine.

Mario Bellissimo, for Applicant Neal Samson, for Respondent

James W. O’Reilly J.: I. Overview 1 Ms Pamela Sheila Osorio, a citizen of the Philippines, applied for permanent residence in Canada after receiving a job offer as an office ad- Osorio v. Canada (MCI) James W. O’Reilly J. 251

ministrator from Christopher’s Fine Drycleaning in Okotoks, Alberta. However, an immigration officer in Manila concluded that the offer was not genuine and denied Ms Osorio’s application. 2 Ms Osorio contends that the officer’s decision was unreasonable because it did not disclose why the officer doubted the genuineness of the employer’s offer. She asks me to quash the officer’s decision and order another officer to reconsider it. 3 I agree that the officer’s decision was unreasonable because it did not adequately explain why the officer concluded that the offer was not genuine. I must, therefore, grant this application for judicial review. 4 The sole issue is whether the officer’s decision was unreasonable.

II. The Officer’s Decision 5 The officer’s principal concerns about Ms Osorio’s offer of employment were: • it would not make sense for Ms Osorio to leave the Philippines, where she runs a number of family businesses, to take a lower paying job in Canada; • Ms Osorio had limited knowledge of the job she would be performing in Canada or her destination; and • Ms Osorio had not spoken to her prospective employer for ten months. 6 The officer expressed her concerns to Ms Osorio, but felt that Ms Osorio had failed to respond to them satisfactorily. She believed Ms Osorio had obtained the job offer in order to gain access to Canada for some reason other than employment. She doubted Ms Osorio would actually take up the position offered to her.

III. Was the Officer’s Decision Unreasonable? 7 In my view, the officer did not adequately consider the evidence before her that supported the genuineness of Ms Osorio’s intentions. This included: • Ms Osorio stated that she wanted to start over in Canada, have a more balanced life, raise her children in a small community, have more time for her family, and have less stress. She was looking for a 9-to-5 job, with weekends free. At the moment, she works 24/7. • She was encouraged to seek employment in Canada because her Philippino friends in Vancouver had achieved dhe balance she 252 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

was seeking. She had also researched employment in the United States and Australia, but she regarded those countries as less ap- pealing than Canada. • She was aware that the dry-cleaning business had two branches, one in Calgary and one in Okotoks. The Okotoks branch had five or six employees, and the Calgary site had nine or ten. She found about five or six other competing drycleaners in the Okotoks area. At present, the owner acted as office administrator, but she needed help, especially since she was expecting a child. As administrator, Ms Osorio would operate and organize the office and help out on the retail side when needed. While she has no direct experience in drycleaning, her administrative duties would be similar to the responsibilities she currently shoulders in the Philippines. • Ms Osorio had researched Okotoks on the Internet. It is about 18 kilometres from Calgary, a 45-minute drive. While she had not yet visited Okotoks, based on her research, it seemed to be good place to raise a family. • Just a few days before Ms Osorio’s interview with the officer, the employer supplied a second letter confirming the job offer to Ms Osorio. 8 In the face of this evidence, it is difficult to understand why the officer harboured ongoing concerns about Ms Osorio’s reasons for being interested in the job, her knowledge of the business, her familiarity with her intended destination, and the lack of recent contact with the employer. Clearly, the officer thought Ms Osorio had reasons other than those she expressed for seeking a job that was beneath her qualifications and current salary. But her decision does not disclose what those might be. Nor did the officer explain why the evidence before her was insufficient to allay her concerns. Accordingly, I find that the officer’s decision was unreasonable because it was not justified, intelligible, or transparent.

IV. Conclusion and Disposition 9 Based on the evidence before her, the officer’s decision did not fall within the range of defensible outcomes. Therefore, it was unreasonable. I must, therefore, allow this application for judicial review and order another officer to reconsider Ms Osorio’s application. Neither party proposed a question of general importance for me to certify, and none is stated. Osorio v. Canada (MCI) James W. O’Reilly J. 253

Judgment THIS COURT’S JUDGMENT is that: 1. The application for judicial review is allowed and the matter is referred back to another officer for reconsideration. 2. No question of general importance is stated. Application granted. 254 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

[Indexed as: Singh v. Canada (Minister of Citizenship & Immigration)] Gurpinder Singh, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-7196-11 2012 FC 814 Judith A. Snider J. Heard: June 19, 2012 Judgment: June 26, 2012 Immigration and citizenship –––– Admission — Immigrants — Skilled workers — Categories (point system) — Language proficiency –––– Appli- cant was citizen of India — In July 2009 applicant applied for permanent resident visa under federal skilled worker class — Applicant was trained as diesel mechanic and applied on basis that he could become economically established in Canada as meeting criteria of National Occupational Classification (NOC) category 7321 (Automotive Service Technicians, Truck and Bus Mechanics and Mechanical Repairers) — Visa officer refused applicant’s application because he failed to earn minimum 67 points needed to qualify for permanent resident visa as skilled worker — Applicant brought application for judicial review of decision of visa officer — Application granted — Evidence did not support visa officer’s conclusion that applicant did not meet language requirements that would allow him to perform job duties — Visa officer appeared to have effectively ignored letter from applicant’s prospective employer that most employees at workplace spoke Punjabi and that technicians communicated mainly with other employees — Outcome could have been different if visa officer had carried out reasonable assessment of employment offer and subsequent communications. Cases considered by Judith A. Snider J.: New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1, 69 Admin. L.R. (4th) 1, 69 Imm. L.R. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) [2008] 1 S.C.R. 190, 844 A.P.R. 1, (sub nom. Dunsmuir v. New Brunswick) 2008 C.L.L.C. 220-020, D.T.E. 2008T-223, 329 N.B.R. (2d) 1, (sub nom. Dunsmuir v. New Brunswick) 170 L.A.C. (4th) 1, (sub nom. Dunsmuir v. New Brunswick) 291 D.L.R. (4th) 577, 2008 CarswellNB 124, 2008 CarswellNB 125, 2008 SCC 9, 64 C.C.E.L. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) 95 L.C.R. 65, [2008] S.C.J. No. 9, [2008] A.C.S. No. 9 (S.C.C.) — followed Singh v. Canada (MCI) Judith A. Snider J. 255

Regulations considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Immigration and Refugee Protection Regulations, SOR/2002-227 Generally — referred to

APPLICATION for judicial review of decision of visa officer dismissing application for permanent residence under skilled worker class.

Lorne Waldman, for Applicant Asha Gafar, for Respondent

Judith A. Snider J.:

1 The Applicant, Mr. Gurpinder Singh, is a citizen of India who wishes to immigrate to Canada. On July 20, 2009, he applied for a permanent resident visa under the “federal skilled worker class” as described in the Immigration and Refugee Protection Regulations, SOR/2002-227 [Regulations]. 2 The Applicant is trained as a diesel mechanic and applied on the basis that he could become economically established in Canada as someone who meets the criteria of the National Occupational Classification (NOC) category 7321 (Automotive Service Technicians, Truck and Bus Mechanics and Mechanical Repairers). The Applicant had a job offer in Canada, which had been confirmed by Service Canada in a positive Ar- ranged Employment Opinion (AEO). 3 The application was assessed by an immigration officer (Officer) of the Canadian High Commission in New Delhi, India. The Applicant was awarded the following points: POINTS MAXIMUM AGE 10 10 EDUCATION 12 25 LANGUAGE PROFICIENCY 05 24 EXPERIENCE 21 21 ARRANGED EMPLOYMENT 00 10 ADAPTABILITY Spouse’s Educa- 04 10 tion TOTAL 52 100 256 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

4 In a decision dated August 25, 2011, the Officer refused the Appli- cant’s application because he had failed to earn the minimum 67 points needed to qualify for a permanent resident visa as a skilled worker. 5 The Applicant seeks judicial review of the Officer’s decision. During his oral submissions, the Applicant focussed on one issue. Specifically, did the Officer err in assessing the Applicant’s Offer of Arranged Em- ployment, thereby under-assessing the points in both the Adaptability and Arranged Employment categories? 6 The Officer’s decision is reviewable on a standard of reasonableness. As taught by the Supreme Court, in New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9 (S.C.C.) at para 47, [2008] 1 S.C.R. 190 (S.C.C.), “reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision- making process”, as well as with “whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”. In this case, I believe that the decision does not meet this standard and will overturn it. 7 The Officer’s decision and reasons, as reflected in the Computer As- sisted Immigration Processing System notes, show a link between the Applicant’s language skills and the arranged employment. Specifically, the Officer concluded that “I am not satisfied that the applicant meets the language requirement that will allow him to perform and carry out the duties as per the employment offer”. In my view, this conclusion is not supported by the evidence. 8 The initial employment offer does not specify any language requirement. The job description states as follows: 3. THE EMPLOYEE agrees to carry out the following tasks as a Diesel Mechanic. Install, maintain, diagnose faults and repair faults in cars, trucks, caravans, trailers. Specifically, Adjust, repair or replace parts and components of commercial transport truck system, including engine and drive train, fuel, air brakes, steering and hy- draulic, electric and electronic systems. [Emphasis in original] 9 The AEO, in spite of this offer, specifies that the Applicant must meet the language requirements of oral and written English, although I observe that no particular level of language skill was identified. In a letter Singh v. Canada (MCI) Judith A. Snider J. 257

dated February 16, 2011 (the Fairness Letter), the Applicant was advised as follows: In support of your application for permanent residence in Canada, you submitted a letter of employment offer from .... This job requires you to speak and write English at work. Your IELTS [language test] results show that you only have a basic command of the English language. Your overall band score indicates a result of 4.5 and I note your result for speaking is 5.5 and result for writing is 3.5. I have concerns regarding your ability to fulfill the responsibilities as required by your job offer. 10 The Fairness Letter reflects two important things. First, the language test results, while low, do acknowledge that the Applicant has demonstrated “a basic command of the English language”. Secondly, the Fair- ness Letter incorrectly states that the job requires the Applicant to speak and write English at work; the job offer said nothing of the sort. The only reference to language skills is contained in the AEO; and, this was not mentioned in the Fairness Letter at all. 11 The Applicant addressed the concerns raised in the Fairness Letter through a letter from his prospective employer who stated that most of the employees at the work place speak Punjabi and that “our technicians have little interaction with customers and are required to communicate mainly with other employees”. 12 I cannot see how this evidence supports the Officer’s conclusion that the Applicant did not meet the language requirements that would allow him to perform the job duties. The Officer appears to have effectively ignored this response letter. The Officer’s finding is not, in my view, one that falls within the range of possible, acceptable outcomes which are defensible in respect of the facts and law. 13 A different outcome for Arranged Employment could have resulted in an additional 10 points under that assessment category and an additional 5 points for Adaptability. Accordingly, it appears that the outcome could have been different if the Officer had carried out a reasonable assessment of the employment offer and subsequent communications. 14 I will, accordingly, allow this application for judicial review. I point out that I am in no way directing any particular outcome for the Appli- cant. A different immigration officer may, in conducting his or her assessment, reject or accept the application based on the evidence before that officer. 258 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

15 Neither party proposes a question for certification. None will be certified.

Judgment THIS COURT ORDERS AND ADJUDGES that: 1. the application for judicial review is allowed, the decision quashed and the matter sent back for re-determination by a different immigration officer; and 2. no question of general importance is certified. Application granted. Taleb v. Canada (MCI) 259

[Indexed as: Taleb v. Canada (Minister of Citizenship & Immigration)] Madame Amina Taleb, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-5394-11 2012 FC 384 Luc Martineau J. Heard: March 22, 2012 Judgment: April 3, 2012 Immigration and citizenship –––– Admission — Immigrants — Skilled workers — Categories (point system) — Experience –––– Applicant was citizen of Morocco who practised as specialist physician — Applicant applied for permanent residence status in skilled workers class — Work experience described by applicant corresponded to codes in National Occupation Classifica- tion (NOC) for general practitioners and specialist physicians — Citizenship and Immigration Canada agent (agent) refused application at pre-qualification stage — Applicant brought application for judicial review — Application granted — Agent’s decision was set aside and matter was referred back for reconsideration — Agent’s decision was flagrantly unreasonable — Agent’s error lay in requiring that all of elements set out in relevant NOC codes appear in applicant’s supporting documents — Applicant’s supporting documents were not insufficient because her work certificates did not contain description of specific duties she carried out — Documentary evidence in applicant’s file corroborated that she was experienced physician, was remunerated and insured as such, and had completed number of years of training and residency — Duties described in relevant NOC codes were inherent part of work of any physician practising modern medicine. Cases considered by Luc Martineau J.: Ghirmatsion v. Canada (Minister of Citizenship & Immigration) (2011), 2011 CarswellNat 2748, 2011 FC 519, 2011 CarswellNat 1468, 2011 CF 519, 27 Admin. L.R. (5th) 171, 389 F.T.R. 165 (Eng.), [2011] A.C.F. No. 650, [2011] F.C.J. No. 650 (F.C.) — referred to Gulati v. Canada (Minister of Citizenship & Immigration) (2010), 89 Imm. L.R. (3d) 238, 2010 CF 451, 2010 CarswellNat 4178, 2010 FC 451, 2010 Car- swellNat 1743, [2010] F.C.J. No. 771 (F.C.) — referred to 260 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

Hoang v. Canada (Minister of Citizenship & Immigration) (2011), 2011 Car- swellNat 1559, 2011 FC 545, 2011 CF 545, 2011 CarswellNat 2625, 98 Imm. L.R. (3d) 247 (F.C.) — referred to Karimzad v. Canada (Minister of Citizenship & Immigration) (2012), 2012 FC 152, 2012 CarswellNat 392, 2012 CF 152, 2012 CarswellNat 1245 (F.C.) — referred to Khatun v. Canada (Minister of Citizenship & Immigration) (2011), 2011 FC 3, 2011 CarswellNat 67, 2011 CarswellNat 486, 2011 CF 3 (F.C.) — referred to Kumar v. Canada (Minister of Citizenship & Immigration) (2011), 2011 Car- swellNat 2409, 2011 CF 770, 2011 FC 770, 2011 CarswellNat 3463, 3 Imm. L.R. (4th) 93, [2001] F.C.J. No. 970 (F.C.) — referred to Monteverde v. Canada (Minister of Citizenship & Immigration) (2011), 2011 CF 1402, 2011 CarswellNat 5127, 2011 FC 1402, 2011 CarswellNat 5833, 5 Imm. L.R. (4th) 337 (F.C.) — considered New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1, 69 Admin. L.R. (4th) 1, 69 Imm. L.R. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) [2008] 1 S.C.R. 190, 844 A.P.R. 1, (sub nom. Dunsmuir v. New Brunswick) 2008 C.L.L.C. 220-020, D.T.E. 2008T-223, 329 N.B.R. (2d) 1, (sub nom. Dunsmuir v. New Brunswick) 170 L.A.C. (4th) 1, (sub nom. Dunsmuir v. New Brunswick) 291 D.L.R. (4th) 577, 2008 CarswellNB 124, 2008 CarswellNB 125, 2008 SCC 9, 64 C.C.E.L. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) 95 L.C.R. 65, [2008] S.C.J. No. 9, [2008] A.C.S. No. 9 (S.C.C.) — referred to Sellathurai v. Canada (Minister of Public Safety & Emergency Preparedness) (2008), 2008 CAF 255, 2008 CarswellNat 5505, 82 Admin. L.R. (4th) 243, 2008 FCA 255, 2008 CarswellNat 3231, 297 D.L.R. (4th) 651, [2009] 2 F.C.R. 576, 382 N.R. 2 (F.C.A.) — referred to Taba˜nag v. Canada (Minister of Citizenship & Immigration) (2011), 2011 FC 1293, 2011 CarswellNat 4693, 2011 CarswellNat 5493, 2011 CF 1293 (F.C.) — distinguished Talpur v. Canada (Minister of Citizenship & Immigration) (2012), 2012 Car- swellNat 42, 2012 FC 25, 2012 CarswellNat 298, 2012 CF 25, 4 Imm. L.R. (4th) 143 (F.C.) — referred to Verma v. Canada (Minister of Citizenship & Immigration) (2003), 2003 CFPI 136, 2003 CarswellNat 1318, 2003 CarswellNat 334, 2003 FCT 136, [2003] F.C.J. No. 218, [2003] A.C.F. No. 218 (Fed. T.D.) — referred to Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Generally — referred to Taleb v. Canada (MCI) Luc Martineau J. 261

Regulations considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Immigration and Refugee Protection Regulations, SOR/2002-227 s. 75(1) — considered s. 75(2) — considered s. 75(2)(a) — referred to s. 75(2)(b) — referred to s. 75(2)(c) — referred to s. 75(3) — considered ss. 75-85 — referred to

APPLICATION by citizen of Morocco who practiced medicine for judicial review of decision refusing her application for permanent residence in skilled worker class.

Sophie Patricia Guerrero, for Applicant Ya¨el Levy, for Respondent

Luc Martineau J.:

[UNREVISED ENGLISH CERTIFIED TRANSLATION] 1 The applicant is challenging the lawfulness of a decision by a Citizen- ship and Immigration Canada service delivery agent [the agent] refusing, at the pre-qualification stage, her application for permanent residence under the Federal Skilled Worker Class on the ground that she does not meet the requirements of subsection 75(2) of the Immigration and Refu- gee Protection Regulations, SOR/2002-227 [Regulations]. 2 The application for judicial review should be allowed, since the agent’s decision seems to me to be unreasonable in every respect.

Evidence in the Record 3 On May 31, 2011, the applicant sent the Centralized Intake Office in Sydney an application for permanent residence in the skilled worker class, with supporting documentation. The applicant’s spouse and minor daughter are included in the application as dependants. 4 The applicant is a citizen of the Kingdom of Morocco. From April 2003 to May 2005, she held the occupation of resident physician and, since then, has been practising as a specialist physician in oncology. 5 As stated on the form for her application for permanent residence under the heading “work experience”, the applicant worked for more 262 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

than a year as a medical intern, an occupation corresponding to National Occupational Classification [NOC] code 3112, that is, the “general practitioners and family physicians” category [NOC 3112]. Under the heading “main duties”, the applicant stated that, as a medical intern, she was [TRANSLATION] “assigned to the paediatric surgery, gynaecology and life-support department”. 6 Also according to her work experience as set out in Schedule 3 to the form, the applicant then worked as a resident physician in oncology for over five years and as a specialist physician in oncology for over one year; those occupations correspond to NOC code 3111, that is, the “specialist physicians” category [NOC 3111]. The applicant describes her main duties as resident physician and specialist physician in oncology as follows: [TRANSLATION] “responsible for managing cancer patients (condition, treatment, follow-up) and for supervising young residents in training, responsible for cancer patient follow-up, assigned to the medical oncology department”. 7 To substantiate this professional experience, the applicant submitted a number of occupational attestations from her employers: a. An work certificate issued on November 24, 2010, by the Ibn Rochd hospital, Ibn Rochd hospital centre in Casa Blanca, confirming that she has the status of médecin de premier grade, or medical doctor, and that the applicant performs the function of physician assigned to the oncology department; b. A work certificate issued on March 22, 2010, by the chief physician of the Institut national d’oncologie, or national oncology institute, Sidi Mohamed Ben Abdellah, of the Ibn Sina hospital centre at Rabat, confirming that the applicant has been practising as a specialist physician assigned to the medical oncology department since May 2005; c. A statement of earnings covering the period from January 1, 2009, to December 31, 2009, issued by the department of health of the Kingdom of Morocco, on which the applicant is designated as a médecin de premier grade; d. An internship certificate confirming that the applicant completed a six-month internship in the radiotherapy department of the Centre hospitalier Ibn Sina in 2008-2009; and e. A certificate issued on April 23, 2008, by the head of the department of medicine of the Institut de cancérologie Gustave Roussy, Taleb v. Canada (MCI) Luc Martineau J. 263

or Gustave Roussy cancer institute, confirming that the applicant performed the functions of Résident de rang A, or category A resident, in the department of medicine for a period of six months in 2007 providing in-patient care in the Finistère ward and for another period of six months in 2008 providing consultations in mastology. 8 The applicant also submitted all of her university degrees, school- leaving certificates and transcripts attesting to her university training as a specialist physician in oncology, in addition to her detailed curriculum vitae and the appointment decree issued by the department of health of the Kingdom of Morocco on September 25, 2077, appointing her as a médecin de premier grade. Furthermore, the applicant’s identity card, Moroccan passport and other supporting documents refer to her as a medical practitioner.

Legal Framework 9 The Skilled Worker Class is governed by sections 75 to 85 of the Regulations. 10 Subsection 75(2) of the Regulations describes a skilled worker as a foreign national who, during the employment period, has at least one year of continuous full-time employment experience, performed the actions described in the lead statement for the occupation as set out in the NOC occupational descriptions and, during that employment period, performed a substantial number of the main duties of the occupation as set out in the NOC occupational descriptions, including all of the so-called “essential” duties. 11 Subsection 75(3) of the Regulations specifies that the agent must proceed no further with the assessment of the application and refuse it if the foreign national fails to meet the minimal prequalification requirements. 12 In addition, section 11.1 of the OP6 Manual on skilled workers contains instructions for officers to follow to determine whether a skilled worker meets the minimal requirements set out at paragraphs 75(2)(b) and (c) of the Regulations: The officer reviews the applicant’s work experience to determine if the applicant meets the minimal requirements to apply as a skilled worker, as stipulated in R75. The applicant must have at least one year of continuous full-time paid work experience, or the continuous part-time equivalent, in the 264 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

category of Skill Type 0, or Skill Level A or B, according to the Canadian National Occupational Classification (NOC). The work experience which will be assessed for all skilled worker applicants must: • have occurred within the 10 years preceding the date of application; • not be in an occupation that is considered a restricted occupation. At the time of printing, there were no occupations designated as restricted. However, for the most up-to-date listing, refer to the Skilled Workers and Professionals Web page at http://www.cic.gc.ca/english/immigrate/skilled/index.asp. The applicant must have: • performed the actions described in the lead statement for the occupation (or occupations) as set out in the occupational description of the NOC (R75(2)(b)); • performed a substantial number of the main duties, including all of the essential duties, of the occupation as set out in the occupational description of the NOC (R75(2)(c)). If ... the applicant meets the minimal requirements Then the officer will ... • proceed to Section 12. If ... the applicant does not meet the minimal requirements Then the officer will ... • not assess the application against the selection criteria; • refuse the application (R75(3)) and proceed to Section 15. Note: Substituted evaluation (Section 13.3), cannot be used to over- come a failure to meet the minimal requirements. L’agent examine l’expérience de travail du demandeur afin de déter- miner si ce dernier répond aux exigences minimales pour présenter une demande a` titre de travailleur qualifié, tel que défini dans le R75. Le demandeur doit avoir au moins une année continue d’expérience de travail rémunérée a` temps plein, ou l’équivalent continu a` temps partiel, qui est comprise dans le genre de compétence 0 ou le niveau de compétence A ou B, selon la Classification nationale des professions (NOC). Taleb v. Canada (MCI) Luc Martineau J. 265

L’expérience de travail, qui sera evalu´´ ee pour les demandeurs a` titre de travailleur qualifié, doit: avoir et´´ e acquise dans les dix années précédant la demande; • ne pas avoir et´´ e acquise dans une profession d’accès limitée. Au moment de mettre sous presse, il n’y avait aucune profession d’accès limitée. La dernière mise a` jour de la liste peut etreˆ consultée a` la page Web sur les travailleurs qualifiés et professionnels a` l’adresse suivante: http://www.cic.gc.ca/francais/immigrer/qualifie/index.asp. Le demandeur doit: • avoir fait les activités décrites dans la déclaration principale de la profession (ou des professions) telles qu’énumérées dans la description de la NOC [R75(2)b)]; • avoir accompli un nombre substantiel des principales tâches de la profession incluant toutes celles qui sont essentielles telles qu’énumérées dans la description de la NOC [R75(2)c)]. Si ... le demandeur répond aux exigences minimales Alors... • poursuivre a` la section 12. Si... le demandeur ne répond pas aux exigences minimales Alors... • ne pas evaluer´ la demande en fonction des critères de sélection; • refuser la demande [R75(3)] et se rendre a` la section 15. Note: La substitution de l’appréciation (section 13.3) ne peut pas etreˆ appliquée lorsque le demandeur ne satisfait pas aux exigences minimales. 13 The applicant’s application was assessed on the basis of the list of occupations included in the NOC, as updated by the Minister on June 26, 2010. The occupations of “general practitioners and family physicians” (NOC 3112) and “specialist physicians” (NOC 3111) are described as follows, with those same codes also covering the periods for residencies in general and in specialized medicine: 3112 General practitioners and family physicians General practitioners and family physicians diagnose and treat the diseases, physiological disorders and injuries of patients. They provide primary contact and continuous care toward the management of 266 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

patients’ health. They usually work in private practice, including group or team practices, hospitals and clinics. Residents in training to be general practitioners and family physicians are included in this unit group. 3111 Specialist physicians This unit group includes specialist physicians in clinical medicine, in laboratory medicine and in surgery. Specialists in clinical medicine diagnose and treat diseases and physiological or psychiatric disorders and act as consultants to other physicians. Specialists in laboratory medicine study the nature, cause and development of diseases in humans. Specialists in surgery perform and supervise surgical procedures. Specialists in clinical medicine usually work in private practice or in a hospital while those in laboratory medicine and in surgery usually work in hospitals. Residents in training to become specialist physicians are included in this unit group. 14 The main duties listed in the NOC description of the general practitioner and family physician category are as follows: General practitioners and family physicians perform some or all of the following duties: • Examine patients and take their histories, order laboratory tests, X-rays and other diagnostic procedures and consult with other medical practitioners to evaluate patients’ physical and mental health • Prescribe and administer medications and treatments • Perform and assist in routine surgery • Provide emergency care • Provide acute care management • Vaccinate patients to prevent and treat diseases • Deliver babies and provide pre-natal and post-natal care • Advise patients and their families on health care including health promotion, disease, illness and accident prevention • Provide counselling and support to patients and their families on a wide range of health and lifestyle issues • Perform patient advocacy role • Co-ordinate or manage primary patient care • Provide continuous care to patients • Supervise home care services Taleb v. Canada (MCI) Luc Martineau J. 267

• Report births, deaths, and contagious and other diseases to governmental authorities. 15 The main duties listed for the occupation of specialist physician, including, therefore, the occupation of oncologist, are as follows: Specialists in clinical medicine perform some or all of the following duties: • Diagnose and treat diseases and physiological or psychiatric disorders • Order laboratory tests, X-rays and other diagnostic procedures • Prescribe medication and treatment and refer patients for surgery • Act as consultants to other physicians • May conduct medical research. Specialists in laboratory medicine perform some or all of the following duties • Study the nature, cause and development of diseases in humans and the structural and functional changes caused by diseases • Conduct microscopic and chemical analyses of laboratory samples and specimens • Supervise laboratory activities • Act as consultants to other physicians. Specialists in surgery perform some or all of the following duties: • Assess patients’ diseases or disorders to determine appropriate surgical procedures • Perform and supervise surgical procedures to correct physical abnormalities and deficiencies and repair injuries • Act as consultants to other physicians.

Agent’s Refusal 16 On July 27, 2011, the agent refused the applicant’s application for permanent residence. 17 The grounds for the refusal are extremely brief and general: [TRANSLATION] ... you have not provided sufficient evidence that you performed all of the main duties of the occupation shown in the NOC occupational descriptions and a substantial number of the main duties, as stipu- 268 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

lated in those descriptions. Having considered the documentation on your additional work experience, I am not satisfied that you performed all of the main duties of the occupation in the NOC occupational descriptions and a substantial number of the main duties for NOC 3111 and 3112. I am therefore not satisfied that you held the occupation of specialist physician corresponding to code 3111 or the occupation of general practitioner and family physician corresponding to code 3112. 18 The application was therefore categorized as ineligible for processing.

Standard of Review 19 The parties agree that the assessment of the evidence by the agent is an exercise of her discretion and that it is subject to the reasonableness standard (Talpur v. Canada (Minister of Citizenship & Immigration), 2012 FC 25 (F.C.) at paragraph 19 [Talpur]; Hoang v. Canada (Minister of Citizenship & Immigration), 2011 FC 545 (F.C.) at paragraph 9). 20 The parties also agree that the correctness standard must apply when it is a matter of determining whether an administrative decision-maker has met his or her obligation of procedural fairness and upheld the principles of natural justice; as a result, the decision maker is owed no deference (Kumar v. Canada (Minister of Citizenship & Immigration), 2011 FC 770 (F.C.) at paragraph 8).

Unreasonable Decision 21 The agent’s decision will be considered reasonable if it falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law and if the decision-making process is transparent and intelligible (New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9 (S.C.C.) at paragraph 47). 22 The applicant contends that the agent did not make a reasonable assessment of the evidence submitted in support of the application when the agent found that this evidence did not allow her to conclude that applicant performed the main duties of a specialist physician or those of a medical intern, given that the burden of proof on the applicant was none other than proof on a balance of probabilities and that nothing in the evidence contradicted this fact in this case. 23 The respondent attempted to enhance the reasons for the impugned decision by filing, with the Court, an affidavit signed by the agent on September 29, 2011. At the hearing, counsel for the respondent stated Taleb v. Canada (MCI) Luc Martineau J. 269

that the agent’s affidavit does not aim to explain the grounds for the refusal; it merely adds additional reasons and is therefore admissible in evidence. It seems to me that these contentions are without merit. 24 The case law is consistent that an administrative decision-maker cannot supplement or improve upon the initial reasons by means of an affidavit filed in proceedings on an application for judicial review (Sellathurai v. Canada (Minister of Public Safety & Emergency Preparedness), 2008 FCA 255 (F.C.A.) at paragraphs 46-47; Khatun v. Canada (Minister of Citizenship & Immigration), 2011 FC 3 (F.C.) at paragraphs 9-10). 25 That said, the interview notes such as the notes entered in the Com- puter-Assisted Immigration Processing System (CAIPS) do constitute reasons (Ghirmatsion v. Canada (Minister of Citizenship & Immigra- tion), 2011 FC 519 (F.C.) at paragraph 8), and a visa officer may, by way of affidavit, testify about what occurred during the interview or about comments made in his or her CAIPS notes (Karimzad v. Canada (Minister of Citizenship & Immigration), 2012 FC 152 (F.C.) at paragraph 14; Gulati v. Canada (Minister of Citizenship & Immigration), 2010 FC 451 (F.C.) at paragraph 21). 26 In this case, the notes in the file do not enable the Court to understand the agent’s line of reasoning, and the affidavit in question provides no further justification for the impugned decision, which appears unreasonable to me with regard to the evidence on record. 27 Although it has been recognized in the case law that visa officers have a certain degree of discretion in interpreting NOC definitions and contents and in assessing the various pieces of evidence in an application for permanent residence (see, among others, Verma v. Canada (Minister of Citizenship & Immigration), 2003 FCT 136 (Fed. T.D.) at paragraph 9), it is certain that the burden of proof which a skilled worker must meet in order to prove that he or she holds an occupation covered by the NOC is not within the visa officer’s discretion to decide. 28 It should be specified that the application was not refused on the basis of an insufficient period of practice by the applicant (paragraph 75(2)(a) of the Regulations) or any specifically identified lack of qualifications or professional experience. Instead, the respondent submits that the applicant’s work certificates are insufficient to prove that she worked as a physician because they do not contain a description of the specific duties carried out by the applicant in performing her professional function. 270 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

29 The applicant is relying on the judgment in Tabañag v. Canada (Minister of Citizenship & Immigration), 2011 FC 1293 (F.C.) [Tabañag]. The facts of that case are, in my opinion, distinguishable from the applicant’s case. In Tabañag, at paragraph 6, the Court stated that the applicant had provided an employment certificate stating that he held the position of Construction Project Architect, whereas, in the tribunal record, there was not “any evidence of a written explanation or other documentation submitted by the applicant ... to support his claim that he performed the duties of an architect; other than a letter from a government official addressed to him as ‘Architect Bryan Tabañag, Site Safety Health Officer/Assistant Construction Project Manager’ inviting the applicant to participate in a discussion on the implementation of a construction safety and health program”. 30 At paragraph 22 of the reasons for judgment, the Court stated the following: Here, there was no evidence before the agent to establish that the applicant had performed any of the duties required to satisfy the occupational classification. It is not sufficient for an applicant to provide evidence that he or she has the academic qualifications, bears a job title and is addressed by that title in correspondence. They must provide evidence that they have actually performed “a substantial number of the main duties of the occupation”. Here, the applicant did not provide that evidence either through the employer’s certificate or alternate documentation. The information submitted fell short of establishing a prima facie case, as the applicant contends. 31 However, the evidence in the case at bar presents no such deficiencies. The evidence must be assessed as a whole so that the various pieces of evidence submitted may corroborate or refute one another. In this case, it is clear that the applicant is an experienced physician. She is remunerated and insured as such. She has completed a number of years of training and residency both in her country and abroad, all of which was amply corroborated by the documentary evidence in the file. 32 The respondent submits that the agent could rightly decline to give any probative value to the documents provided by the applicant herself, such as her curriculum vitae or the Schedule 3 to her application for permanent residence form. In the Court’s opinion, these documents constitute written testimony by the applicant which the agent cannot reasonably exclude on the ground that they were drafted by the applicant or her counsel, especially given that, in this case, these statements are confirmed by common sense and the rest of the evidence, which mainly con- Taleb v. Canada (MCI) Luc Martineau J. 271

sists of documents from state institutions. It is also erroneous to contend that the agent was unable to use objective evidence to verify the information provided by the applicant. 33 Plain common sense confirms the applicant’s statements at paragraphs 7-8 of her affidavit, signed on September 8, 2011: [TRANSLATION] ... I do not practise in the private sector, but in the public sector. The work certificates issued by the hospital are standard certificates for which the template is provided by the department of health. I cannot request that external remarks be added. These duties are so obvious that it would be odd to request that my section head make additions, in parentheses, indicating what a physician does in performing the function of physician within a hospital. Not only might he not have the right to indicate this, since he does not have the discretion to add external remarks to a state document, but, what is more, he would consider my request absurd. This request would also raise my employer’s suspicions of a potential departure, which is never desirable. 34 The respondent contends that this explanation is an explanation ex post facto which the applicant cannot rely on at the application for judicial review stage in order to attempt to complete or enhance her evidence. In my opinion, the applicant’s explanation contains no facts which the agent herself could not have reasonably known. Rather, the agent’s error lay in requiring that all of the elements set out in the NOC, including the most obvious ones, appear in the applicant’s supporting documents, which clearly led her to reach erroneous findings of fact, which were arrived at abusively or arbitrarily and without taking into account all of the evidence available to her. 35 Furthermore, in Monteverde v. Canada (Minister of Citizenship & Im- migration), 2011 FC 1402 (F.C.), at paragraph 27 [Monteverde], the Court decided that a visa officer could not reasonably refuse an application for permanent residence in the skilled worker class for the sole reason that the supporting employment documentation provided by the employers of an applicant did not contain detailed descriptions of his duties, regardless of the form on which the applicant personally described his professional responsibilities and any other corroborating evidence: [27] It is not clear from the decision letter or the CAIPS notes why the application failed. The officer merely states that the employment letters submitted by the applicant did not provide sufficiently detailed duty descriptions. Neither the decision nor the CAIPS notes refer to 272 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

the document provided by the applicant detailing his employment responsibilities and the other objective evidence submitted in support. It appears that the officer simply disregarded the remainder of the evidence when he found that the employer’s letters did not contain the expected information. 36 I also agree with the applicant that the NOC contains no mention of any duties other than those which are usually performed by general practitioners or specialist physicians all over the world, that is, making diag- noses and treating their patients, ordering laboratory tests or other diagnostic procedures, prescribing medication, acting as a consultant for other physicians or occasionally conducting research. The duties described in NOC 3111 and 3112 are an inherent part of the work of any physician practising modern medicine. To reach the opposite conclusion would amount to believing that fire does not burn both in Athens and in Persia, to draw on a maxim from the Nicomachean Ethics which the great philosopher Aristotle used to distinguish between natural law and “conventional” law. 37 At the hearing, counsel for the respondent submitted with conviction that the NOC is intended to protect both Canadian society and the occupations it covers. To me, this argument seems inapplicable here. It is un- derstandable that a person may not be admitted into Canada because he or she is a danger to the public and to Canada because of criminal offences he or she may have committed abroad. That said, it seems to me that this is the first time that is has been alleged that the Minister has any power to judge the professional competency of a foreign national. It must be borne in mind that the applicant’s occupation is a profession that is widely regulated and subject to entry limits. 38 Instead, in Canada, provincial professional orders are responsible for the regulation of professions and for the protection of the public in respect of their professionals. The Act imposes no such obligation on the respondent, whereas, under subsection 75(1) of the Regulations, the federal skilled worker class is a prescribed class of persons who are skilled workers, who may become permanent residents on the basis of their ability to become economically established in Canada and who intend to reside in a province other than the Province of Quebec. 39 The flagrant unreasonableness of the agent’s decision is sufficient to set it aside, without there being any need to consider the second issue raised by the applicant, that is, the issue of natural justice and the neces- Taleb v. Canada (MCI) Luc Martineau J. 273

sity of calling the applicant to an interview if the agent had doubts as to the credibility or authenticity of the documents provided. 40 This application for judicial review is allowed. The agent’s decision is set aside, and the matter is referred back to Citizenship and Immigra- tion Canada for reconsideration by another agent. No question of general importance was proposed by the parties for certification, and none will be certified.

Judgment THE COURT ORDERS AND ADJUDGES that this application for judicial review is allowed. The agent’s decision is set aside, and the matter is referred back to Citizenship and Immigration Canada for reconsideration by another agent. No question is certified. Application granted. 274 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

[Indexed as: Diaz Ovalle v. Canada (Minister of Citizenship & Immigration)] Nestor Diaz Ovalle, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-3764-11 2012 FC 507 James W. O’Reilly J. Heard: January 12, 2012 Judgment: May 2, 2012 Immigration and citizenship –––– Exclusion and removal — Inadmissible classes — Health –––– Applicant, citizen of Panana, applied for permanent resident of Canada as skilled worker — Applicant was HIV positive — Applicant had responded well to treatment since 2001 — Non-profit organization provided applicant’s medication — Visa officer determined that applicant might cause excessive demands on Canadian health services and found applicant inadmissible on medical grounds — Applicant applied for judicial review of decision — Ap- plication granted — Matter remitted to different officer for reconsideration — Officer did not explain why, given applicant’s detailed plan to cover cost medication, applicant remained medically inadmissible to Canada — Applicant’s prognosis and diagnosis were not issue — Officer did not address whether applicant would impose excessive demand on Canadian resources — Officer’s conclusion was unreasonable. Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 38(1)(c) — referred to

APPLICATION for judicial review of visa officer’s decision rejecting applicant’s application on health grounds.

Michael F. Battista, for Applicant Marie-Louise Wcislo, for Respondent Diaz Ovalle v. Canada (MCI) James W. O’Reilly J. 275

James W. O’Reilly J.: I. Overview 1 Mr. Nestor Diaz Ovalle, a citizen of Panama, applied for permanent residence in Canada as a skilled worker. Mr. Ovalle is HIV positive. 2 A visa officer at the Canadian Embassy in Guatemala concluded that Mr. Ovalle was inadmissible to Canada on medical grounds; that is, he might cause excessive demands on Canadian health services. Mr. Ovalle argues that the officer failed to consider his detailed plan for managing his medical expenses, according to which he would receive medication at no cost from a charitable organization. In any case, he also had health coverage with his prospective Canadian employer that would cover the cost of medication, if necessary. 3 The officer’s decision, according to Mr. Ovalle, was unreasonable. I agree. The officer did not appear to give any consideration to Mr. Ovalle’s submissions relating to his medical expenses. Accordingly, I must allow this application for judicial review and order another officer to reconsider Mr. Ovalle’s application for permanent residence. 4 The sole issue is whether the officer’s decision was unreasonable.

II. The Officer’s Decision 5 The officer relied on the opinion of a medical doctor who expressed a concern that Mr. Ovalle would need ongoing treatment with anti-retroviral drugs and close monitoring. The officer sought Mr. Ovalle’s in- put on that issue and gave him a chance to submit a plan to offset the demand that he might impose on Canadian services. 6 In response, Mr. Ovalle provided the following information: • His doctor stated that he had been given anti-retroviral treatment since 2001 and had responded well. If this treatment continued, he would likely enjoy good health for the next 5 to 10 years. • A non-profit organization called “Aid for AIDS International” had been providing medication to Mr. Ovalle at no cost since April 2009. It was willing to continue to do so permanently, even if he moved to Canada. • Mr. Ovalle’s prospective Canadian employer stated that he would be covered under the firm’s health care plan for at least $1500 per year. 276 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

• Mr. Ovalle agreed to assume responsibility for the social services he would require in Canada, and would not look to the federal or provincial government to fund those services. • The estimated cost of Mr. Ovalle’s medication was about $1500 per month, or $18,000 per year. • The Maple Leaf Medical Clinic in Toronto concluded that Mr. Ovalle should have a life expectancy similar to someone who is HIV negative. He would require 2 or 3 clinic visits a year, but his demands on public health would be minimal. 7 The officer forwarded this information to a medical officer who noted that Mr. Ovalle’s diagnosis and prognosis had not changed. The officer relied on that opinion to conclude that Mr. Ovalle was inadmissible to Canada on medical grounds (Immigration and Refugee Protection Act, SC 2001, c 27, s 38(1)(c) — see Annex).

III. Was the Officer’s Decision Unreasonable? 8 The Minister argues that the officer’s decision was reasonable, given that it was based on the evidence before him. That evidence did not dis- place the officer’s concern about the magnitude of Canadian health resources that Mr. Ovalle would require. 9 I disagree. While the officer had detailed information before him about the medication Mr. Ovalle would require, its cost, and his ability to meet that cost, the officer merely reiterated the medical officer’s opinion that Mr. Ovalle’s diagnosis and prognosis had not changed. But neither the prognosis nor the diagnosis was the issue. There was no dispute about that. The issue was whether Mr. Ovalle would impose an excessive demand on Canadian resources. The officer did not address that issue in his reasons. It is not possible, therefore, to understand the basis for his conclusion that Mr. Ovalle’s plan was not satisfactory. 10 Accordingly, the officer’s decision was unreasonable.

IV. Conclusion and Disposition 11 The officer did not explain why, given his detailed plan to cover the cost of his medication, Mr. Ovalle remained medically inadmissible to Canada. Therefore, his conclusion was unreasonable. I must, therefore, allow this application for judicial review and order another officer to reconsider Mr. Ovalle’s application. Neither party proposed a question of general importance for me to certify, and none is stated. Diaz Ovalle v. Canada (MCI) James W. O’Reilly J. 277

Judgment THIS COURT’S JUDGMENT is that: 1. The application for judicial review is allowed. The matter is referred back for reconsideration by another officer. 2. No question of general importance is stated. Application granted.

Appendix

Immigration and Refugee Protection Act, SC 2001, c 27, s 38(1)(c) Health grounds 38. (1) A foreign national is inadmissible on health grounds if their health condition ... (c) might reasonably be expected to cause excessive demand on health or social services. 278 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

[Indexed as: United States v. Ibrahim] In the Matter of the Extradition Act, S.C. 1999, c. 18 as amended In the matter of The Attorney General of Canada on behalf of The United States of America and Ali Ibrahim British Columbia Supreme Court Docket: Vancouver 24593 2012 BCSC 916 W.F. Ehrcke J. Heard: April 30, 2012; May 1-3, 2012 Judgment: June 6, 2012 Tax –––– Income tax — Administration and enforcement — Offences — False or deceptive statements –––– Taxpayer pled guilty in US to making false statements on application for adjustment to temporary US resident status — Taxpayer failed to report to probation officer and submit required reports — Taxpayer allegedly made false or deceptive statements in US personal income tax returns — A-G brought application on US’s behalf for taxpayer’s committal pursuant to s. 29 of Extradition Act (EA) for prosecution on tax charges and imposition of sentence in relation to breach of probation — Taxpayer brought number of preliminary applications, including two unsuccessful disclosure applications in relation to purported immunity agreement (IA), aborted abuse of process application, and adjournments to retain counsel — Initial disclosure application was dismissed — Taxpayer failed to file materials ordered as condition of granting adjournment — Taxpayer retained new counsel who renewed applications and filed affidavits days before committal hearing — Taxpayer’s applications dismissed; US’s application granted — Evidence was sufficient for properly instructed jury to convict taxpayer of equivalent Canadian tax offence under s. 239(1)(a) of Income Tax Act (ITA) — Taxpayer failed to establish that there was air of reality to allegations of IA in relation to tax matters and that allegations, if proven, would support remedy of stay of proceedings on extradition for abuse of process — Taxpayer did not establish material change in circumstance from original application for disclosure, taxpayer and affiant could have mentioned certain documents and purported IA earlier, taxpayer failed to satisfactorily explain delays, and purported IA was vague and unspecific, may not have had any application to tax fraud, and suggested US offered taxpayer immunity for illegal act not yet committed. United States v. Ibrahim 279

Criminal law –––– Extradition proceedings — Extradition from Canada — Extradition hearing — Role of judge — Statutory duties –––– Taxpayer pled guilty in US to making false statements on application for adjustment to temporary US resident status — Taxpayer failed to report to probation officer and submit required reports — Taxpayer allegedly made false or deceptive statements in US personal income tax returns — A-G brought application on US’s behalf for taxpayer’s committal pursuant to s. 29 of Extradition Act (EA) for prosecution on tax charges and imposition of sentence in relation to breach of probation — Taxpayer brought number of preliminary applications, including two unsuccessful disclosure applications in relation to purported immunity agreement (IA), aborted abuse of process application, and adjournments to retain counsel — Ini- tial disclosure application was dismissed — Taxpayer failed to file materials ordered as condition of granting adjournment — Taxpayer retained new counsel who renewed applications and filed affidavits days before committal hearing — Taxpayer’s applications dismissed; US’s application granted — Evidence was sufficient for properly instructed jury to convict taxpayer of equivalent Canadian tax offence under s. 239(1)(a) of Income Tax Act (ITA) and equivalent Cana- dian immigration offence under ss. 127 and 128 of Immigration and Refugee Protection Act (IRPA) — Taxpayer failed to establish that there was air of reality to allegations of IA in relation to tax matters and that allegations, if proven, would support remedy of stay of proceedings on extradition for abuse of process — Even if there were IA, its legal effect was not matter for Canadian extradition judge but was matter to be determined according to US law, as were allegations of abuse of process, alleged inaccuracies and omissions in records of committal (ROCs), assessment of whether communications between accountant and client were privileged, assessment of credibility, and review of decision as to whether fugitive was person sought for prosecution. Criminal law –––– Extradition proceedings — Extradition from Canada — Evidence at hearing — Record of the case –––– Taxpayer pled guilty in US to falsifying immigration application, then breached terms of probation — Tax- payer allegedly made false statements in US personal income tax returns — A-G brought application on US’s behalf for taxpayer’s committal pursuant to s. 29 of Extradition Act (EA) for prosecution on tax charges and imposition of sentence in relation to breach of probation — Taxpayer brought number of preliminary applications, including two unsuccessful disclosure applications in relation to purported immunity agreement (IA), aborted abuse of process application, and adjournments to retain counsel — Initial disclosure application was dismissed — Taxpayer failed to file materials ordered as condition of granting adjournment — Taxpayer retained new counsel who renewed applications and filed affidavits days before committal hearing — Taxpayer’s applications dismissed; US’s application granted — Evidence was sufficient for properly instructed jury to convict taxpayer of equivalent Canadian tax offence under s. 239(1)(a) of Income Tax Act (ITA) and equivalent Canadian immigration of- 280 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th) fence under ss. 127 and 128 of Immigration and Refugee Protection Act (IRPA) — Taxpayer failed to establish that there was air of reality to allegations of IA in relation to tax matters and that allegations, if proven, would support remedy of stay of proceedings on extradition for abuse of process — Taxpayer did not establish material change in circumstance from original application for disclosure, taxpayer and affiant could have mentioned certain documents and purported IA earlier, taxpayer failed to satisfactorily explain delays, and purported IA was vague and unspecific, may not have had any application to tax fraud, and suggested US offered taxpayer immunity for illegal act not yet committed — Even if there were IA, its legal effect was not matter for Canadian extradition judge but was matter to be determined according to US law, as were allegations of abuse of process, alleged inaccuracies and omissions in records of committal (ROCs), assessment of whether communications between accountant and client were privileged, assessment of credibility, and review of decision as to whether fugitive was person sought for prosecution — Although taxpayer’s evidence, at most, might be used to challenge or undermine credibility of prosecution’s evidence or form basis for substantive defence at trial, it was insufficient to exclude or disregard evidence contained in ROCs at committal hearing and did not show that evidence in ROCs was unavailable or manifestly unreliable — Nor did anything in taxpayer’s affidavits justify not ordering committal for imposition of sentence. Criminal law –––– Extradition proceedings — Extradition from Canada — Evidence at hearing — Crown evidence — Indictment in foreign state –––– Taxpayer pled guilty in US to falsifying immigration application, then breached terms of probation — Taxpayer allegedly made false statements in US personal income tax returns — A-G brought application on US’s behalf for taxpayer’s committal pursuant to s. 29 of Extradition Act (EA) for prosecution on tax charges and imposition of sentence in relation to breach of probation — Tax- payer brought number of preliminary applications, including two unsuccessful disclosure applications in relation to purported immunity agreement (IA), aborted abuse of process application, and adjournments to retain counsel — Ini- tial disclosure application was dismissed — Taxpayer failed to file materials ordered as condition of granting adjournment — Taxpayer retained new counsel who renewed applications and filed affidavits days before committal hearing — Taxpayer’s applications dismissed; US’s application granted — Evidence was sufficient for properly instructed jury to convict taxpayer of equivalent Canadian tax offence under s. 239(1)(a) of Income Tax Act (ITA) and equivalent Cana- dian immigration offence under ss. 127 and 128 of Immigration and Refugee Protection Act (IRPA) — Taxpayer failed to establish that there was air of reality to allegations of IA in relation to tax matters and that allegations, if proven, would support remedy of stay of proceedings on extradition for abuse of process — Taxpayer did not establish material change in circumstance from original application for disclosure, taxpayer and affiant could have mentioned certain United States v. Ibrahim 281

documents and purported IA earlier, taxpayer failed to satisfactorily explain delays, and purported IA was vague and unspecific, may not have had any application to tax fraud, and suggested US offered taxpayer immunity for illegal act not yet committed — Even if there were IA, its legal effect was not matter for Cana- dian extradition judge but was matter to be determined according to US law, as were allegations of abuse of process, alleged inaccuracies and omissions in records of committal (ROCs), assessment of whether communications between accountant and client were privileged, assessment of credibility, and review of decision as to whether fugitive was person sought for prosecution — Although taxpayer’s evidence, at most, might be used to challenge or undermine credibility of prosecution’s evidence or form basis for substantive defence at trial, it was insufficient to exclude or disregard evidence contained in ROCs at committal hearing and did not show that evidence in ROCs was unavailable or manifestly unreliable — Nor did anything in taxpayer’s affidavits justify not ordering committal for imposition of sentence. Cases considered by W.F. Ehrcke J.: Germany (Federal Republic) v. Ebke (2001), 158 C.C.C. (3d) 253, 205 D.L.R. (4th) 123, 2001 NWTSC 52, 2001 CarswellNWT 78 (N.W.T. S.C.) — followed R. v. Breakell (2009), 2009 CarswellAlta 672, 2009 ABCA 173, [2009] 6 C.T.C. 27, 454 A.R. 205, 2009 D.T.C. 5133 (Eng.), [2009] G.S.T.C. 106 (Alta. C.A.) — referred to R. v. Larosa (2002), 163 O.A.C. 108, 98 C.R.R. (2d) 210, 2002 CarswellOnt 2787, 166 C.C.C. (3d) 449, [2002] O.J. No. 3219 (Ont. C.A.) — followed R. v. Sansregret (1985), 1985 CarswellMan 176, (sub nom. Sansregret v. R.) [1985] 1 S.C.R. 570, (sub nom. Sansregret v. R.) 58 N.R. 123, (sub nom. Sansregret v. R.) 45 C.R. (3d) 193, (sub nom. Sansregret v. R.) 17 D.L.R. (4th) 577, (sub nom. Sansregret v. R.) [1985] 3 W.W.R. 701, (sub nom. Sansregret v. R.) 35 Man. R. (2d) 1, (sub nom. Sansregret v. R.) 18 C.C.C. (3d) 223, 1985 CarswellMan 380, [1985] S.C.J. No. 23 (S.C.C.) — referred to R. v. Savojipour (2006), 79 O.R. (3d) 418, 2006 CarswellOnt 685, 205 C.C.C. (3d) 533, 207 O.A.C. 202 (Ont. C.A.) — considered United States v. Artes-Roy (April 1, 2003), Doc. Vancouver CC990353 (B.C. S.C.) — referred to United States v. Cheema (2003), 2003 BCSC 1483, 2003 CarswellBC 3596 (B.C. S.C.) — referred to United States v. Cobb (2001), 152 C.C.C. (3d) 270, 197 D.L.R. (4th) 46, 145 O.A.C. 3, 267 N.R. 203, [2001] 1 S.C.R. 587, 81 C.R.R. (2d) 226, 2001 SCC 19, 2001 CarswellOnt 964, 2001 CarswellOnt 965, 41 C.R. (5th) 81, [2001] S.C.J. No. 20, REJB 2001-23417 (S.C.C.) — considered United States v. Costanzo (2009), 2009 CarswellBC 878, 2009 BCCA 120, 243 C.C.C. (3d) 242, (sub nom. United States of America v. Costanzo) 268 282 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

B.C.A.C. 105, (sub nom. United States of America v. Costanzo) 452 W.A.C. 105 (B.C. C.A.) — considered United States v. Dhanda (February 19, 2009), Doc. Vancouver 24028 (B.C. S.C.) — considered United States v. Dynar (1997), (sub nom. United States of America v. Dynar) 44 C.R.R. (2d) 189, (sub nom. United States of America v. Dynar) 33 O.R. (3d) 478 (headnote only), (sub nom. United States of America v. Dynar) [1997] 2 S.C.R. 462, 8 C.R. (5th) 79, (sub nom. United States of America v. Dynar) 213 N.R. 321, (sub nom. United States of America v. Dynar) 115 C.C.C. (3d) 481, (sub nom. United States of America v. Dynar) 147 D.L.R. (4th) 399, 1997 CarswellOnt 1981, 1997 CarswellOnt 1982, (sub nom. United States of America v. Dynar) 101 O.A.C. 321, [1997] S.C.J. No. 64 (S.C.C.) — considered United States v. Ferras (2006), 268 D.L.R. (4th) 1, 209 C.C.C. (3d) 353, [2006] 2 S.C.R. 77, 2006 SCC 33, 2006 CarswellOnt 4450, 2006 CarswellOnt 4451, 39 C.R. (6th) 207, 351 N.R. 1, 214 O.A.C. 326, 143 C.R.R. (2d) 140, [2006] S.C.J. No. 33 (S.C.C.) — considered United States v. Graham (2007), 2007 CarswellBC 1462, 2007 BCCA 345, 401 W.A.C. 248, 222 C.C.C. (3d) 1, 243 B.C.A.C. 248, [2007] B.C.J. No. 1390 (B.C. C.A.) — considered United States v. Hislop (2009), 2009 BCCA 94, 2009 CarswellBC 542, (sub nom. United States of America v. Hislop) 242 C.C.C. (3d) 1, (sub nom. Canada (Attorney General) v. Hislop) 267 B.C.A.C. 155, (sub nom. Canada (Attorney General) v. Hislop) 450 W.A.C. 155 (B.C. C.A.) — followed United States v. Ibrahim (2010), 2010 CarswellBC 3445, 2010 BCSC 1777, [2010] B.C.J. No. 2495 (B.C. S.C.) — referred to United States v. Ibrahim (2011), 2011 CarswellBC 650, 2011 BCSC 357, [2011] B.C.J. No. 499 (B.C. S.C.) — referred to United States v. McVey (1992), [1993] 1 W.W.R. 289, 16 B.C.A.C. 241, 28 W.A.C. 241, (sub nom. McVey, Re) 77 C.C.C. (3d) 1, (sub nom. McVey, Re) [1992] 3 S.C.R. 475, 73 B.C.L.R. (2d) 145, 144 N.R. 81, (sub nom. McVey, Re) 97 D.L.R. (4th) 193, 1992 CarswellBC 318, 1992 CarswellBC 914, [1992] S.C.J. No. 95, EYB 1992-67043 (S.C.C.) — considered United States v. Vreeland (2001), 2001 CarswellOnt 3717, [2001] O.J. No. 4139 (Ont. S.C.J.) — considered Statutes considered: Aliens and Nationality Code, 8 U.S.C. Chapter 12, s. 1160(b)(7)(A) — referred to 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. 11(h) — referred to s. 32 — considered United States v. Ibrahim W.F. Ehrcke J. 283

Extradition Act, S.C. 1999, c. 18 Generally — referred to s. 29 — considered s. 29(1) — considered s. 29(1)(a) — considered s. 29(1)(b) — considered s. 29(2) — referred to s. 32(1) — considered s. 32(1)(c) — considered ss. 32-35 — referred to s. 33 — referred to s. 38(1) — referred to s. 38(2) — referred to Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 127 — considered s. 127(a) — considered s. 127(b) — considered s. 128 — considered Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.) s. 239(1)(a) — considered

APPLICATION by Attorney General on US’s behalf for taxpayer’s committal pursuant to s. 29 of Extradition Act; CROSS-APPLICATION by taxpayer for disclosure and stay of proceedings on basis of abuse of process.

J.M.L. Gibb-Carsley, D.B. Majzub, for Attorney General of Canada on behalf of the Requesting State R.R. Hira, Q.C., for Person Sought

W.F. Ehrcke J. (orally): Introduction 1 This matter concerns an application by the Attorney General of Can- ada on behalf of the United States of America (the “Requesting State”) for the committal of the respondent, Ali Ibrahim, pursuant to s. 29 of the Extradition Act, S.C. 1999, c. 18 (the “Act”), for prosecution in the United States of America for making false or deceptive statements in personal income tax returns for the years 1989, 1990 and 1991, and for the imposition of sentence in relation to his conviction for misrepresentations on an immigration matter. 2 The committal application came on before me for hearing on April 30, 2012. The matter was set for four days. 284 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

3 At the outset of the hearing, the respondent made an application for disclosure and an application for the proceedings to be stayed as an abuse of process. 4 In order to avoid delaying the proceedings, which have already been ongoing for four years, it was agreed by all parties that I would hear full submissions on the disclosure application, the abuse of process application, and the committal hearing, and would reserve decision on all matters until today. This was on the understanding that if the disclosure application were granted, the parties would have an opportunity to reopen and make further submissions on the other matters. 5 I have determined that the disclosure application should be refused. I have also decided that that abuse of process application should be dismissed. I will first give my reasons with respect to those matters and then go on to give my reasons on the committal hearing.

Overview 6 Mr. Ibrahim was arrested on a warrant under the Extradition Act on May 20, 2008. 7 The Authority to Proceed was issued on September 3, 2008, pursuant to s. 15 of the Extradition Act. It states that Mr. Ibrahim is sought for prosecution and for imposition of a sentence by the United States of America. 8 The Requesting State has filed the Record of the Case for Prosecution dated July 14, 2008 (“Prosecution ROC”), the Record of the Case for Imposition or Enforcement of a Sentence dated July 23, 2008 (“Sentence ROC”), and the Supplemental Record of the Case for Imposition or En- forcement of a Sentence dated September 13, 2008 (“Supplemental Sen- tence ROC”). 9 Mr. Ibrahim was released on his own recognizance with conditions on May 21, 2008. He has been on bail since that time. 10 A number of dates have been set for the committal hearing, but there were repeated adjournments at the request of Mr. Ibrahim, sometimes due to his decisions to change counsel. 11 Mr. Ibrahim made an application in 2010 for the proceedings to be heard in camera on the basis of informer privilege. Following a hearing of that application on October 14 - 15 and November 1 - 2, 2010, I dismissed that application on November 12, 2010. The reasons are indexed at 2010 BCSC 1777 (B.C. S.C.). United States v. Ibrahim W.F. Ehrcke J. 285

12 On February 7 and 8, 2011, I heard an application by Mr. Ibrahim for disclosure. I dismissed that application on March 24, 2011. Those reasons are at 2011 BCSC 357 (B.C. S.C.). 13 For both applications, Mr. Ibrahim was represented by experienced counsel, Mr. Martin and Mr. DelBigio. 14 A hearing date of September 21, 2011 was set for Mr. Ibrahim to make an abuse of process application, but on that date he announced that he had dismissed his counsel. 15 A number of interim appearances followed in order for Mr. Ibrahim to retain new counsel for the committal hearing that was scheduled for January 23 - 24, 2012. On that date, Mr. Ibrahim applied for a further adjournment, as he had not retained counsel. The committal hearing was adjourned to April 30, 2012 for four days on the condition that if Mr. Ibrahim wished to pursue the abuse of process application, he would file his materials no later than March 23, 2012. That date came and went with no new materials having been filed. 16 Then on April 20, 2012, Mr. Ibrahim, now represented by Mr. Hira, filed a notice of application for disclosure, for a stay of proceedings based on abuse of process, and for the admission of evidence. New affidavits were also filed, including Affidavit #5 of Edward Garland, sworn March 30, 2012, Affidavit of Mark Newman sworn April 10, 2012, Affi- davit of Ali Ibrahim sworn April 20, 2012, and Affidavit of Salim Aziz sworn April 26, 2012. That latter affidavit was not filed until April 27, 2012, the Friday before the commencement of this hearing. 17 Counsel for the Requesting State took the position that the applications of Mr. Ibrahim should not be entertained because they were not brought in a timely manner. 18 I decided to hear the applications and reserve decision on them.

The Disclosure Application 19 Counsel for Mr. Ibrahim submits that he is not barred by the principle of res judicata from renewing the application for disclosure that was already decided against him. He submits that this is an interlocutory application which, as he put it in his submissions, “can be varied or revoked if circumstances present at the time of the making of the order have materi- ally changed.” In support of that proposition, he cites the decision of the Ontario Court of Appeal in R. v. Savojipour (2006), 205 C.C.C. (3d) 533 (Ont. C.A.), where it was held that the trial judge did not err in reversing 286 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

his prior ruling excluding certain evidence in light of a “material change in circumstances” brought about by the conduct of defence counsel in alluding to that evidence. 20 While I do not disagree with that general principle, the question here is whether there has in fact been a material change of circumstance since the time of the initial disclosure application. 21 The present application is framed in identical terms to the original application, except that the list of items for which disclosure is requested is now expanded to include documents relating to “compliance with Standard Condition of Probation number 12” in addition to the original request for documents relating to an alleged immunity agreement. The other significant difference between this application and the original application is reliance on the new affidavits filed in April 2012, including Affidavit #5 of Edward Garland. 22 It is difficult to see how those factors constitute a material change in circumstance. If Mr. Ibrahim had wanted documents in relation to condition number 12 of the probation order, he could have made that request at the time of his original application. 23 As for the new affidavits, Mr. Ibrahim has offered no satisfactory explanation for why they could not have been obtained and filed prior to the original disclosure application. He has had four years since his arrest to prepare, and he has not explained why he waited until now to seek out and file these new affidavits. Not only should these affidavits have been presented at the time of the original disclosure application, but in addition, at the very least, they should have been filed prior to the deadline that I set as a condition of granting Mr. Ibrahim’s adjournment request in January 2012. At that time, I told Mr. Ibrahim, in explicit terms, that if he intended to rely on any new affidavit material, he must file it no later than March 23, 2012. The present materials were not filed until a month later, and only days before the commencement of this hearing 24 While I must, of course, be mindful of protecting Mr. Ibrahim’s right to a fair hearing, the other party to these proceedings, that is, the Re- questing State, is entitled to a fair procedure as well. Moreover, the Court must have the power to control its own process by setting reasonable time limits for filing material, and by preventing repetitive applications to reconsider rulings that have already been made. 25 Even apart from those considerations, I am not satisfied on the merits that Mr. Ibrahim has shown a basis for granting the requested order of disclosure. United States v. Ibrahim W.F. Ehrcke J. 287

26 In my original ruling reported at 2011 BCSC 357 (B.C. S.C.), I discussed in detail the legal principles governing an application for disclosure in the context of an extradition committal hearing. I do not find it necessary here to repeat everything I said at that time. 27 The test for disclosure was set out in R. v. Larosa (2002), 166 C.C.C. (3d) 449 (Ont. C.A.), at para. 76: [76] [B]efore ordering the production of documents and compelling testimony in support of allegations of state misconduct, this court should be satisfied that the following three criteria have been met by the applicant: • the allegations must be capable of supporting the remedy sought; • there must be an air of reality to the allegations; and • it must be likely that the documents sought and the testimony sought would be relevant to the allegations. 28 In his original application, Mr. Ibrahim relied heavily on Mr. Gar- land’s Affidavit #1, sworn May 29, 2009, and Mr. Garland’s Affidavit #2 sworn September 23, 2010. I concluded that the evidence was incapable of demonstrating an air of reality to the allegation that there was an immunity agreement made by U.S. Attorney William Davis that Mr. Ibrahim would be immune from prosecution for income tax fraud in relation to his 1989, 1990, and 1991 tax returns, and I found that there was no realistic possibility that the allegations could be substantiated if the requested material were disclosed. 29 In the face of that conclusion, Mr. Ibrahim sought out yet another affidavit from Mr. Garland. Mr. Garland’s Affidavit #5, sworn March 30, 2012, provides a more detailed explanation of the “proffer” process. He then states at paragraphs 7-8: 7. In and around December, 1993, Mr. Davis and I entered into discussions in an effort to resolve all potential criminal charges alleged or to be alleged against Mr. Ibrahim. The discussions resulted in Ibrahim agreeing to make a proffer to the United States Government in relation to their investigation of Ibrahim. 8. As a result of these discussions and based upon the agreement reached, in December 1993 Ibrahim, provided a detailed proffer to the US government as set out in paragraphs 13 and 14 of my second affidavit, sworn to on September 23, 2010. The proffer was provided upon the agreement that no statements made by Ibrahim would be used against Ibrahim. 288 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

[Underline added.] 30 If indeed there was such an agreement, it is difficult to understand why Mr. Garland did not mention it explicitly in any of his earlier four affidavits. It is also difficult to understand why such an agreement, clearly of great importance to Mr. Ibrahim, would never have been reduced to writing. 31 More importantly, the underlined statement that, “The proffer was provided upon the agreement that no statements made by Ibrahim would be used against Ibrahim” is vague and unspecific. “Would not be used against him” for what purpose? Mr. Garland does not say. The context of the proffer discussions was Mr. Ibrahim’s revelations about the immigration scheme. But even if there had been an unwritten agreement that those discussions would not be used in a prosecution for immigration fraud, that does not imply that the alleged immunity extended to the filing, sometime in the future, of inaccurate tax returns. Indeed, it seems inconceivable that a government official would offer immunity for an allegedly illegal act that had not yet been committed. According to Mr. Garland, the agreement of immunity was made in December 1993, but the tax returns that are alleged to contain false or deceptive statements were not filed until March 9, 1995. 32 In any event, as I noted in para. 42 of the original disclosure decision, even if Mr. Ibrahim could show that there was some form of unwritten agreement between himself and Mr. Davis, the legal effect of such an unwritten agreement on any future U.S. prosecution is a matter that would have to be determined according to U.S. law, and the interpretation of foreign law is not a matter assigned to the Canadian judge hearing an extradition request: United States v. McVey, [1992] 3 S.C.R. 475 (S.C.C.) at p. 523; United States v. Cheema, 2003 BCSC 1483 (B.C. S.C.) at para. 19. 33 To establish an abuse of process leading to a stay of the extradition, Mr. Ibrahim would have to show that there was an abuse that reached into and infected the Canadian proceedings. He would need to show that his Charter rights in Canada have been infringed by the conduct alleged in relation to the immunity agreement. But this could not be done without interpreting the legal effect of the agreement according to the laws of the Requesting State, and the interpretation of foreign law is not a matter for the extradition judge. 34 Mr. Ibrahim has not satisfied the onus on him of showing that there is an air of reality to the allegations of an immunity agreement in relation to United States v. Ibrahim W.F. Ehrcke J. 289

his tax matters and that the allegations, if proven, would support the remedy of a stay of proceedings on the extradition for abuse of process. 35 The other matter raised by Mr. Ibrahim in his new disclosure application is a request for documents “showing any consideration of or compliance with Standard Condition of Probation number 12 issued on Septem- ber 30, 1994, by Agents Greer [sic], Schroeder, King, Grabsky or other members of the prosecutorial or investigative team”. Condition 12 of Mr. Ibrahim’s probation order states: “The defendant shall not enter into any agreement to act as an informer or a special agent of a law enforcement agency without the permission of the court.” 36 On the disclosure application, Mr. Ibrahim has not demonstrated an air of reality that the requested documents exist or that if they did, they would be relevant to demonstrating an abuse of process in these Cana- dian extradition proceedings. In my view, this request is nothing more than a “fishing expedition”. 37 As our Court of Appeal noted in United States v. Costanzo, 2009 BCCA 120 (B.C. C.A.) at paras. 29-30, the applicant for disclosure bears the burden of demonstrating an air of reality, which must go beyond a mere fishing expedition: The party seeking additional disclosure bears the burden of demonstrating an “air of reality” by reference to evidence before the court: Larosa, at para. 81. Mr. Justice Doherty stressed, at para. 74, that the “air of reality” requirement will not be satisfied by the mere assertion that the disclosure sought, if ordered, will assist in determining the issue the applicant seeks to raise: [74] ... The appellant must, however, do more than simply assert that the documents requested and the testimony sought will assist in determining issues raised on the appeal and the application for judicial review. “Fishing” ex- peditions are not tolerated in any judicial proceeding, particularly one which is intended to provide a simple and expeditious means of responding to Canada’s international obligations. Extradition proceedings cannot be allowed to become de facto royal commissions. 38 For these reasons, Mr. Ibrahim’s renewed application for disclosure is denied. 290 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

Abuse of Process 39 I turn next to Mr. Ibrahim’s application to have the extradition proceedings stayed on the basis of abuse of process. In considering this application, it is useful to keep certain principles in mind. First, an extradition committal hearing is not a trial. In United States v. Dynar, [1997] 2 S.C.R. 462 (S.C.C.), the Court noted at para. 122: A judge hearing an application for extradition has an important role to fulfil. Yet it cannot be forgotten that the hearing is intended to be an expedited process, designed to keep expenses to a minimum and ensure prompt compliance with Canada’s international obligations. As La Forest J. stated for the majority in McVey, supra, at p. 551, “extradition proceedings are not trials. They are intended to be expeditious procedures to determine whether a trial should be held”. In fact, in some contexts, a requirement for more “trial-like” procedures at the extradition committal stage may “cripple the operation of the extradition proceedings”: McVey, supra, at p. 528. See also Schmidt, supra, at p. 516. 40 The Court noted that pursuant to s. 32, the Charter only applies to Canadian state actors and generally cannot apply extraterritorially. 41 Thus, while the Charter guarantees the fairness of the committal hearing, there is limited scope for raising Charter issues arising from the conduct of foreign officials outside of Canada. 42 The Court went on to observe at para. 125 of Dynar that the Charter must be applied with caution in the extradition context: Even where there is a sufficient involvement of Canadian authorities in the proceedings to justify applying the Charter, courts must proceed with caution. It has been observed that “judicial intervention must be limited to cases of real substance”: Schmidt, supra, at p. 523. To do otherwise might all too easily place Canada in a position of violating its international obligations: see La Forest’s Extradition, supra, at p. 25. 43 A Charter remedy will not generally be granted in the extradition context solely on the basis that evidence was gathered in the foreign state in a manner that would not comply with Canadian standards. As the Court noted at para. 140 of Dynar: ... However, the fact that evidence was obtained in the foreign jurisdiction in a way that does not comply with our Charter is not enough on its own to render the proceeding so unfair that the evidence should be excluded: Harrer, supra, at p. 573. Considerations of this nature United States v. Ibrahim W.F. Ehrcke J. 291

must always be balanced against the need to ensure that Canada’s international obligations are honoured, to foster cooperation between investigative authorities in different jurisdictions, and to avoid indirectly forcing the foreign authorities to adopt procedural safeguards that resemble our own in order to successfully obtain the surrender of a fugitive. 44 There have been a few exceptional cases in which an extradition has been stayed because of egregious conduct that affected the integrity of the Canadian proceedings. United States v. Cobb, [2001] 1 S.C.R. 587 (S.C.C.) is an example. In that case, the U.S. prosecutor intimated during an interview that fugitives who exercised their legal right to resist extradition would be subject to homosexual rape in prison. In determining that the extradition judge properly directed a stay of proceedings, Arbour J. at para. 42 distinguished the role of the extradition judge from that of the Minister in relation to Charter issues: As mentioned earlier, the s. 7 issues before the extradition judge are different. His or her concern is not principally whether the appellants will face a possibly unfair trial, or an unfair sentencing hearing in the United States, or whether, if convicted and sentenced to imprisonment, they will be subjected to sexual violence as predicted, indeed as prescribed, by the attorney prosecuting the case against them. These concerns are for the most part premature at the committal stage as they engage the consideration of issues involving other constitutional rights, such as ss. 6 and 12, which must await consideration by the Minister, and by the courts upon judicial review of that executive decision. The s. 7 issue before the extradition judge is whether the extrajudicial conduct and pronouncements of a party to the proceedings, or of those associated with that party, disentitle that party from the judicial assistance that it is seeking and whether it would violate the principles of fundamental justice to commit the fugitives for surrender to the Requesting State. 45 Nevertheless, as observed by Campbell J. in United States v. Vree- land, [2001] O.J. No. 4139 (Ont. S.C.J.) at para. 38, the scope for ordering a stay at the committal stage is narrow: I accept the Crown’s submission that the Cobb exception is extremely narrow and extends remedial jurisdiction at this stage of the proceedings only to those cases where proven misconduct by the requesting state reaches directly into the Canadian judicial process, as in the Cobb threat of later American mistreatment if the accused did not consent to the Canadian judicial proceedings. That is the narrow kind of abuse of process contemplated by Cobb. Even if everything 292 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

said by the accused were true, it would not constitute a direct abuse of the Canadian judicial system as contemplated by Cobb. 46 In the present case, Mr. Ibrahim submits that there are three bases for finding an abuse of process: (1) the allegation that the Requesting State has provided evidence in breach of the proffer and immunity agreements; (2) the allegation that the Requesting State has omitted material facts relevant to Mr. Ibrahim’s inability to return to the U.S. to complete his sentence of probation; and (3) the allegation that the Requesting State relies on evidence that is covered by attorney-client privilege. 47 To a large extent, I have already dealt with the first allegation above. I am not satisfied that the evidence shows there was an immunity agreement in relation to a prosecution for making misrepresentations on the tax returns filed in 1995. Even if there were an agreement, its scope and effect could only be determined in accordance with U.S. law, and the construction of agreements pursuant to U.S. law is not within the province of a Canadian extradition judge: McVey at p. 523; United States v. Artes-Roy (April 1, 2003), Doc. Vancouver CC990353 (B.C. S.C.). 48 The second allegation is based on the affidavit of Mark Newman sworn April 10, 2012. Mr. Newman, who had been Mr. Ibrahim’s immigration lawyer, deposed at paragraph 9: In my professional opinion, Mr. Ibrahim was and remains inadmissible to the United States based on his criminal conviction and immigration fraud. Therefore, it was impossible for him to return to the U.S. and complete his probationary sentence in the U.S. 49 Mr. Newman went on to say at paragraphs 14-15: It is evident from the Record of the Case dated September 4, 2008 that full disclosure was not made to the Canadian Extradition Court regarding Mr. Ibrahim’s inadmissibility to the United States. The Re- cord of the Case makes material omission of relevant facts that Mr. Ibrahim had committed immigration fraud resulting in the rescission of his legal permanent residence status and was convicted of a felony involving moral turpitude and is not admissible to enter the United States based on Title 8 §1182 of the U.S. Code. In my professional opinion, based on his criminal conviction and his immigration fraud, Mr. Ibrahim was and remains inadmissible to the United States. Therefore, it was impossible for Mr. Ibrahim for complete his probationary sentence in the U.S. These are life-time bars. United States v. Ibrahim W.F. Ehrcke J. 293

50 Mr. Ibrahim submits that Mr. Newman’s affidavit shows that there are inaccuracies and omissions in the ROCs, and that this should result in a stay of the extradition. I do not agree. Mr. Newman’s affidavit contains his opinion that, under United States law, Mr. Ibrahim was inadmissible to the United States. The implication is that this would provide a defence to the imposition of sentence that is requested by the United States as set out in the Authority to Proceed. 51 Clearly, these are matters that would have to be determined in accordance with United States law. It is not my role as an extradition judge in Canada to determine whether Mr. Ibrahim is inadmissible to the United States according to United States law, nor is it my role to determine whether this would provide a defence to the imposition of the sentence sought. 52 Finally, Mr. Ibrahim submits that the fairness of the extradition hearing is undermined by the Requesting State attempting to rely on evidence protected by attorney-client privilege. The Prosecution ROC refers to testimony available from Victor Kaushik. However, Mr. Garland in his Af- fidavit #5 states at paragraph 12: I arranged for Victor Kaushik, an accountant, to be retained to assist myself and Mr. William Frantz, a tax attorney, to prepare income tax returns for the years 1989, 1990, and 1991 for Ibrahim. In these circumstances, Mr. Kaushik is imbued with the same privilege that would exist between an attorney and his or her client. 53 Once again, the assessment of whether communications between Mr. Ibrahim and Mr. Kaushik are protected by attorney-client privilege, and if so, the extent and effect of that protection, are matters that can only be determined through the application of United States law, and that is not a role assigned to the Canadian extradition judge. 54 For these reasons, the application for a stay of proceedings is dismissed.

The Committal Hearing 55 The Department of Justice on behalf of the United States of America seeks an order that Mr. Ibrahim be committed for extradition in relation to the two matters set out in the Authority to Proceed. The first matter relates to a prosecution for making false statements in his personal income tax returns filed March 9, 1995, for the calendar years 1989, 1990, and 1991. The second matter relates to an allegation that he breached conditions of his probation for an offence to which he pleaded guilty on 294 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

April 5, 1994, namely, making a fraudulent misrepresentation on an application relating to temporary resident status. He is sought for imposition of sentence in relation to that matter. 56 The Authority to Proceed specifies that the Canadian offences which correspond to the alleged conduct are: Prosecution: False or deceptive statement in a personal income tax return, contrary to subsection 239(1)(a) of the Income Tax Act. Imposition of a Sentence: Misrepresentation, contrary to sections 127 and 128 of the Immigration and Refugee Protection Act. 57 Section 29 of the Extradition Act sets out the test for committal: 29(1) A judge shall order the committal of the person into custody to await surrender if (a) in the case of a person sought for prosecution, there is evidence admissible under this Act of conduct that, had it occurred in Canada, would justify committal for trial in Canada on the offence set out in the authority to proceed and the judge is satisfied that the person is the person sought by the extradition partner; and (b) in the case of a person sought for the imposition or enforcement of a sentence, the judge is satisfied that the conviction was in respect of conduct that corresponds to the offence set out in the authority to proceed and that the person is the person who was convicted. 58 In the present case, since Mr. Ibrahim is sought for prosecution and for imposition of a sentence, both ss. 29(1)(a) and (b) are engaged. 59 In applying the test set out in s. 29, I must consider what evidence is admissible under the Extradition Act and whether the admissible evidence is sufficient to justify committal. 60 This involves a limited weighing of the admissible evidence to determine whether it discloses a case on which a reasonable and properly instructed jury could convict the person sought of the equivalent Canadian offence set out in the Authority to Proceed if the conduct described had occurred in Canada: United States v. Ferras, 2006 SCC 33 (S.C.C.). 61 In United States v. Graham, 2007 BCCA 345 (B.C. C.A.), our Court of Appeal held that this demands a “holistic appraisal” of the evidence “through the lens of judicial experience”. Donald J.A remarked at para. 32: In summary, Ferras stands for the proposition that extradition judges now have the discretion to disregard evidence shown to be unreliable United States v. Ibrahim W.F. Ehrcke J. 295

or unavailable and in respect of the evidence that remains, to determine by an assessment of the evidence, including a limited weighing of the evidence, whether it is sufficient for a properly instructed jury acting reasonably to reach a verdict of guilty in Canada.

The Admissible Evidence 62 The admissibility of evidence is governed by ss. 32 to 35 of the Ex- tradition Act. The evidence relied upon by the Requesting State consists of the Prosecution ROC, the Sentence ROC, and the Supplemental Sen- tence ROC, as well as admissions made by Mr. Ibrahim on the issue of identity. 63 The Prosecution ROC summarizes the evidence available for use in the prosecution in the United States, and contains a statement by William L. McKinnon, Assistant United States Attorney, Northern District of Georgia, certifying that the evidence is available for trial and is sufficient under the laws of the United States to justify prosecution. 64 The Sentence ROC and the Supplemental Sentence ROC also contain statements by William L. McKinnon certifying that the evidence summarized or contained therein is accurate. The Sentence ROC includes a copy of a document recording Mr. Ibrahim’s conviction, as well as details of the conduct underlying that conviction. 65 In light of the fact that the three ROCs have been properly certified and otherwise fulfil the requirements of s. 33 of the Extradition Act, I find that they are admissible in evidence on the committal hearing. 66 During the course of the hearing on May 2, 2012, I gave an oral ruling admitting certain portions of certain affidavits tendered by Mr. Ibrahim. I did so pursuant to the opening words of s. 32(1) of the Extra- dition Act, which makes admissible “evidence that would otherwise be admissible under Canadian law”, and I did not therefore make any finding under s. 32(1)(c) as to whether the evidence is relevant to the tests set out in s. 29(1). 67 The specific items admitted are particularized in my reasons of May 2, 2012. Some of that material appears to contradict certain assertions in the ROCs, and Mr. Hira submitted that this shows that the evidence contained in the ROCs was not gathered in accordance with the laws of the United States, is not accurate, and may not be available at trial. 68 I have considered all of the material tendered by Mr. Ibrahim, and I do not agree that it demonstrates any of those things. As explained above, the question of whether the evidence was gathered in accordance 296 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

with United States law is a matter for determination at trial in the United States by a judge in the United States. It is not for me to rule on whether this evidence will or will not be admissible at trial under United States law. 69 Similarly, statements in the affidavits filed by Mr. Ibrahim which appear to contradict statements in the ROCs do not demonstrate that the ROCs are inaccurate. To come to that conclusion I would have to weigh the competing claims and make assessments of credibility. That is not a task assigned to me as the extradition judge. It is a matter to be considered and determined at trial in the United States. The affidavits tendered by Mr. Ibrahim do not rise to the level of showing that the evidence contained in the ROCs lacks threshold reliability. 70 Finally, the affidavit material tendered by Mr. Ibrahim does not demonstrate that the evidence set out in the ROCs may not be available for trial. The fact that some of the evidence in the ROCs may be subject at trial to arguments concerning admissibility according to United States law does not mean that the evidence is not “available” in the relevant sense. The material tendered by Mr. Ibrahim does not show that the prosecution lacks the means of presenting it to the Court for consideration. 71 Put at its highest, the affidavits tendered by Mr. Ibrahim may show that he has evidence which might be used at trial in an attempt to challenge or undermine the credibility of some of the prosecution’s evidence, or which might, if believed, form the basis for a substantive defence at trial. But that is not a sufficient basis to exclude or disregard the evidence contained in the ROCs at the committal hearing. 72 I find that the evidence tendered by Mr. Ibrahim does not show that the evidence contained in the ROCs is unavailable or that it is manifestly unreliable.

Identity 73 In addition to the ROCs and the affidavits tendered by Mr. Ibrahim, a document entitled “Admissions of Fact” has also been admitted in evidence. That document, signed by counsel, formally admits on Mr. Ibrahim’s behalf that he is the person referred to in the Prosecution ROC, the Sentence ROC, and the Supplemental Sentence ROC, and that he is the person named in the Authority to Proceed. It is also admitted that Mr. Ibrahim is the person sought by the Requesting State for prosecution and for imposition of sentence as set out in the Authority to Proceed. It is United States v. Ibrahim W.F. Ehrcke J. 297

also admitted that he is the person depicted in the photographs appended to the ROCs. 74 Based on the Admissions of Fact, I have no difficulty in concluding that all issues of identity have been proven to the required standard.

The Evidence in the Prosecution ROC 75 The evidence contained in the Prosecution ROC may be summarized as follows. 76 According to the ROC, Salim Aziz will testify that in 1989 and 1990 he participated with Mr. Ibrahim in an immigration fraud scheme assist- ing illegal aliens to submit false applications for an amnesty program called “LULAC”. Mr. Ibrahim charged fees ranging from $500 - $2,500 per alien and made $5,000 - $15,000 each day from the scheme. Mr. Ibrahim paid Mr. Aziz $25,000 - $30,000 for his participation. Most of the payments were in cash, and Mr. Aziz helped Mr. Ibrahim convert the cash to cashier’s cheques. Mr. Ibrahim was aware that banks are required to report transactions over $10,000 to the IRS, and Mr. Ibrahim and Mr. Aziz would divide up the money so that each would purchase a cashier’s cheque of less than $10,000. On May 30, 1990, Mr. Ibrahim attempted to send 19 cashier’s cheques totalling $73,270 by Federal Express to a bank in the Cayman Islands, but the U.S. Customs Service intercepted the package. Mr. Ibrahim then directed Mr. Aziz to sign a letter falsely stating that eight of the cashier’s cheques totalling $31,070 belonged to Mr. Aziz. Mr. Ibrahim then sent the letter to the U.S. Customs Service in an attempt to secure the release of the cheques. Mr. Aziz will testify that all the cheques belonged to Mr. Ibrahim and were proceeds of the immigration fraud. 77 Paragraph 2 of the Prosecution ROC states that Roberleigh Brougher will testify that she was Mr. Ibrahim’s business partner and was romanti- cally involved with him. In 1989 and 1990 Mr. Ibrahim generated significant amounts of cash from the immigration fraud and converted the cash to cashier’s cheques. Mr. Ibrahim told her that he was aware banks are required to report cash transactions over $10,000 to the IRS, so he always purchased cashier’s cheques below that amount. Mr. Ibrahim gave her cashier’s cheques to hand-carry to the Cayman Islands where she deposited them into Mr. Ibrahim’s bank account. She will identify bank records she provided to the IRS establishing that in 1990 she deposited $262,901 worth of cashier’s cheques into that account, and she believes 298 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

that from 1989 to 1991 she deposited approximately $600,000 into Mr. Ibrahim’s Cayman Islands account. 78 Paragraph 3 states that Roxanne Jacobs will testify that she was the lead teller at First Atlanta Bank in Norcross, Georgia, when on March 19, 1990, Mr. Ibrahim tried to purchase two cashier’s cheques for $7,940 and $5,500 with cash. She advised him she would have to report the cash transaction because the total exceeded $10,000. Mr. Ibrahim then purchased a single cashier’s cheque for $7,940 and returned the next day to purchase a second cheque for $7,850. Both cheques were made payable to Mr. Aziz. Ms. Jacobs filed a Cash Transaction Report (“CTR”) on these transactions and will identify it at trial. 79 According to paragraph 4 of the Prosecution ROC, an IRS records custodian will identify a CTR filed at a bank in California as a business record which states that on May 3, 1990, Mr. Ibrahim and Mr. Aziz attempted to purchase with cash two cashier’s cheques for $9,000 each. The teller told them he would have to file a CTR and would need identification from both of them. They said that they did not want the teller to file a CTR and did not want to provide identification. When the teller explained that both were mandatory in order to complete the transaction, they provided identification and completed the purchase of the cashier’s cheques. 80 Paragraphs 5 and 6 of the ROC state that IRS Special Agent Sheila Geer interviewed Mr. Ibrahim on January 12, 1994, at which time he admitted filing at least 75 fraudulent applications with the Immigration and Naturalization Service in Atlanta and approximately 100 fraudulent applications with the INS in Los Angeles. He admitted charging fees of $500 to $2,500 per application. He further admitted that he did not report all the income he earned from the immigration scheme on his income tax returns for 1989 and 1990. INS Special Agent Kimberly Hockman Schroeder was also present during the interview and will confirm the statements made by Mr. Ibrahim. 81 Paragraph 7 sets out the evidence of IRS Revenue Agent Wayne King, who is an expert in the preparation of individual income tax returns and the computation of tax due on taxable income. He will testify that he met with Mr. Ibrahim on November 12, 1992, at which time he had not yet filed returns for 1989, 1990, or 1991. Mr. Ibrahim provided Agent King with copies of his tax returns that had been prepared for those years, but he refused to say whether he intended to file those returns. United States v. Ibrahim W.F. Ehrcke J. 299

82 Paragraph 8 sets out the evidence of Victor Kaushik, an accountant retained by Mr. Ibrahim in 1990 to keep books and records for a company called Quantum, and to prepare tax returns for Quantum and for himself beginning with the 1989 tax year. Mr. Kaushik prepared the first set of Mr. Ibrahim’s personal tax returns for 1989, 1990, and 1991, and gave them to him with envelopes and instructions for mailing to the IRS. With respect to these returns, Mr. Kaushik never saw any of Mr. Ibrahim’s personal bank records, and he only reported income on the returns based on what Quantum’s books and records showed he drew from the business. 83 According to Mr. Kaushik, Mr. Ibrahim contacted him in the early part of 1995 and told him he had additional income to declare for 1989, 1990, and 1991, and that he had never filed the first set of returns that Mr. Kaushik prepared. Mr. Kaushik then requested more information, and Mr. Ibrahim provided a handwritten list of additional income and expenses, as well as copies of foreign bank account statements. Some of the additional income on the handwritten list was called “LULAC”. 84 Mr. Kaushik asked about $900,000 that passed through Quantum’s bank account, and Mr. Ibrahim claimed the money was embezzled from him by Roberleigh Brougher. Mr. Kaushik noted that the money had been transferred into an account in the name “Quantum Consulting” and that from there, cheques were written payable to Ms. Brougher and her company. Mr. Ibrahim said he received some of the money back, but lost approximately $300,000. When Mr. Kaushik questioned him about the source of the $900,000, Mr. Ibrahim said the money was a non-Quantum transaction, had nothing to do with Quantum, and that he should not record the transactions on Quantum’s books. He told Mr. Kaushik that the money was in part “old family” money and in part money from investors that wanted to buy a motel. Kaushik specifically asked Mr. Ibrahim if it was his income and was told that it was not. 85 Paragraph 7 sets out further evidence of Agent King. He will testify that Mr. Ibrahim filed tax returns for 1989, 1990, and 1991 on March 9,1995, but they were not the same as the unfiled ones he had seen in 1992. The returns filed in 1995 reported more income, particularly on Schedule “C”, which is for income derived from business activities that the taxpayer did not report as salary, dividend, or rental Income. 86 Agent King reviewed the work papers supplied to him by Mr. Ibrahim’s accountant who prepared the filed returns and noted that the additional income was broken down as coming from Quantum Consult- 300 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

ing (“Quantum”), a company owned and managed by Ibrahim, LULAC (the immigration fraud), and Computer Consulting (diverted Quantum receipts) in the work papers. According to Agent King, on Mr. Ibrahim’s filed tax returns he reported more interest income from bank accounts outside the United States than he did on the unfiled returns, but he did not report any interest income for bank accounts held in the Cayman Islands. 87 Specifically, paragraph 7 (A) - (C) of the Prosecution ROC states: Agent King obtained bank statements for accounts held by Quantum. Agent King was not able to reconcile the sales invoices provided by IBRAHIM with the bank statements. However, in the process, he dis- covered that there were bank accounts at First Union Bank that IBRAHIM did not disclose to him into which IBRAHIM deposited checks made payable to Quantum Consulting that were from customers of Quantum and were for services provided by Quantum. These checks were not included in Quantum’s books and records and were not reported as income on Quantum’s business tax returns or on IBRAHIM’s individual tax returns. Specifically: (A) For 1989, Agent King identified 10 checks, totalling $53,034.93, which were paid to Quantum by Quantum customers that were deposited into an account at First Union Bank. These checks were not reported on Quantum’s 1989 company books or on Quantum’s business tax return or IBRAHIM’s 1989 individual income tax return. The proceeds from the checks are income to IBRAHIM, as the owner of Quantum, and should have been reported on Ibrahim’s 1989 income tax return. (B) For 1990, Agent King identified 27 checks, totalling $250,880.85, which were paid to Quantum by Quantum customers that were deposited into an account at First Union Bank. These checks were not reported on Quantum’s 1990 company books or on Quantum’s business tax return or IBRAHIM’s 1989 individual income tax return. The proceeds from the checks are income to IBRAHIM, as the owner of Quantum, and should have been reported on IBRAHIM’s 1990 income tax return. (C) For 1991, Agent King identified 12 checks, totalling $89,478.00, which were paid to Quantum by Quantum customers that were deposited into an account at First Union Bank. These checks were not reported on Quantum’s 1991 company books or on Quantum’s business tax return or United States v. Ibrahim W.F. Ehrcke J. 301

IBRAHIM’s 1991 individual income tax return. The proceeds from these checks are income to IBRAHIM, as the owner of Quantum, and should have been reported on IBRAHIM’s 1991 income tax return. 88 At paragraph 9, the ROC states that Agent King will further testify that his review of the personal tax returns Mr. Ibrahim filed on March 9, 1995, for the years 1989, 1990, and 1991 revealed the following: 89 On the 1989 return, Mr. Ibrahim stated that his taxable income was $49,828.00 and tax owing was $17,484.00, but the investigation conducted by Special Agents King and Geer determined that his taxable income was at least $74,378.93, upon which Mr. Ibrahim owed income taxes of at least $26,084.55. The evidence upon which this conclusion is based includes Mr. Ibrahim’s admission that he did not report all the income that he derived from the LULAC immigration scheme in his 1989 tax return, the testimony of Mr. Aziz and Ms. Brougher that Mr. Ibrahim derived substantial income from LULAC, and King’s testimony that $53,034.93 income from Quantum was not reported on Mr. Ibrahim’s tax return. 90 On the 1990 return, Mr. Ibrahim stated that his taxable income was $220,527.00 and tax owing was $65,171.00, but the investigation of Spe- cial Agents King and Geer determined that his taxable income was at least $495,233.85 upon which he owed income taxes of at least $142,088.24. The evidence upon which this conclusion is based includes Mr. Ibrahim’s admission that he did not report all of the income that he derived from the LULAC immigration scheme in his 1990 tax return; the testimony of Mr. Aziz and Ms. Brougher that Mr. Ibrahim derived substantial income from the LULAC scheme in 1990; the testimony of Aziz that $73,270.00 in cashier’s cheques seized by Customs belonged to Mr. Ibrahim and were purchased with proceeds from the LULAC scheme; Ms. Brougher’s testimony and bank records that she deposited at least $262,901 worth of cashier’s cheques into Mr. Ibrahim’s account in the Cayman Islands and that the funds used to purchase the cheques came from LULAC; and Agent King’s testimony that $250,880.85 in income to Quantum was not reported on Mr. Ibrahim’s 1990 tax return. 91 On the 1991 return, Mr. Ibrahim stated his taxable income was $37,148.00 and that the amount of tax owing was $6,829.00, but the investigation of Special Agents King and Geer determined that his taxable income was at least $123,916.00, upon which he owed taxes of at least $38,789.46. The evidence upon which this conclusion is based includes 302 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

Agent King’s testimony that $89,478.00 in income to Quantum was not reported on Mr. Ibrahim’s 1991 tax return.

Sufficiency of the Case for Prosecution 92 The Requesting State must show that the evidence of Mr. Ibrahim’s conduct, if it occurred in Canada, could support a conviction for the offence set out in the Authority to Proceed, namely, s. 239(1)(a) of the Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.) which provides: 239(1) Every person who has (a) made, or participated in, assented to or acquiesced in the making of, false or deceptive statements in a return, certificate, statement or answer filed or made as required by or under this Act or a regulation, ... is guilty of an offence ... 93 To establish the actus reus of this offence, the Crown must prove that the accused made, participated in, assented to or acquiesced in the making of false or deceptive statements in a tax return. The mens rea may be established through evidence that the false or deceptive statement was made knowingly and intentionally; this specific intent may also be in- ferred from evidence that the accused was wilfully blind: R. v. Breakell, 2009 ABCA 173 (Alta. C.A.) at para. 17; R. v. Sansregret, [1985] 1 S.C.R. 570 (S.C.C.). 94 The evidence in the ROC is clearly sufficient to establish that on March 9, 1995, Mr. Ibrahim filed personal income tax returns declaring income of $49,828 for 1989, $220,527 for 1990, and $37,148 for 1991. 95 The issue for determination, then, is whether there is sufficient evidence that the amounts declared as taxable income are false, and if so, whether Mr. Ibrahim knew they were false or was wilfully blind. 96 The Crown, on behalf of the Requesting State, submits that five bases emerge from the evidence for establishing the offence. It has labelled these as (a) through (e): (a) In 1989 and 1990, Ibrahim converted cash derived from the LULAC fraud to cashier’s cheques with the assistance of Aziz. They would purchase cashier’s cheques in amounts less than $10,000 to conceal the money from the IRS. During this period, Ibrahim generally made between $5,000 to $15,000 per day from the scheme. In 1990, the U.S. Customs Service seized $73,270 in cashier’s cheques which Ibrahim had at- United States v. Ibrahim W.F. Ehrcke J. 303

tempted to send to the Cayman Islands. This money was derived from the LULAC fraud, should have been reported on Ibrahim’s tax return for 1990, and was not reported. (b) Records show that in 1990, Brougher deposited into the Cay- man Islands Account $262,901 worth of cashiers cheques. Between 1989 and 1991, Ibrahim gave Brougher cashier’s cheques to deposit in his Cayman Islands Account amounting to approximately $600,000. This income should have been reported on Ibrahim’s tax return for 1990, but was not reported. (c) On January 12, 1994, Ibrahim admitted to Special Agent Geer that he did not report all the income he earned from the LU- LAC fraud on his unfiled income tax returns for 1989 and 1990. (d) In his filed tax returns, Ibrahim failed to report any interest income for bank accounts held in the Cayman Islands. (e) Ibrahim deposited cheques into a bank account made payable to Quantum Consulting from Quantum customers. These cheques were not included in Quantum’s books and records and were not reported as income on Quantum’s business tax returns or on Ibrahim’s individual tax returns. Between 1989 and 1991, forty-nine cheques were deposited into Quantum’s account totalling more than $392,000. Ibrahim deliberately omitted this income from his personal tax returns which should have been reported. 97 Let me begin with item (c). In my view, the admission Mr. Ibrahim made on January 12, 1994, that his unfiled returns did not report all of his LULAC income is no evidence that the returns he filed on March 9, 1995, were inaccurate. In paragraph 7 of the Prosecution ROC, Agent King specifically stated that the filed returns were significantly different from the unfiled returns, and that Mr. Ibrahim reported income on his filed returns that he had not included on his unfiled returns. Thus, his admission that he had not included LULAC income on his unfiled returns is entirely consistent with the possibility that the filed returns included all of his LULAC income. 98 Item (d) also fails to provide evidence in support of the offence. The fact that Mr. Ibrahim did not report any interest income from Cayman Islands bank accounts would only be relevant if there were some evidence that he earned interest in those accounts during the years 1989, 1990, and 1991, but there is no such evidence set out in the ROC. Ms. Brougher provides evidence that Mr. Ibrahim had Cayman Island ac- 304 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

counts and that she deposited approximately $600,000 into them, but there is no evidence that these were interest-bearing accounts. Mr. Aziz signed a letter referring to “high interest-bearing Certificates of Deposit at a Cayman Islands bank”, but the ROC states this was in a letter which “falsely stated” these things. In any event, the money referred to in that letter was seized and therefore did not generate interest income. I am unable to find any evidence in the ROC that Mr. Ibrahim had any interest from Cayman Islands bank accounts that he failed to report. 99 With respect to item (e), the evidence in the ROC does not provide a clear basis for finding that the income of Quantum should have been reported on Mr. Ibrahim’s personal tax returns. It may be that the books and records as well as the corporate tax returns of Quantum were inaccurate, but that is not a matter for which the Requesting State has sought Mr. Ibrahim’s return. Mr. Ibrahim is sought for making misrepresentations on the personal tax returns he filed on March 9, 1995, for 1989, 1990, and 1991. Agent King refers to the cheques that Mr. Ibrahim deposited into undisclosed accounts at First Union Bank, but Agent King specifically states that these cheques were “made payable to Quantum Consulting that were from customers of Quantum and were for services provided by Quantum.” Agent King states that there were 10 cheques totalling $53,034.93 for 1989, 27 cheques totalling $250,880.85 for 1990, and 12 cheques totalling $89,478.00 for 1991, all of which were paid to Quantum by Quantum customers that were deposited into an account at First Union Bank. Agent King then asserts that the proceeds from all these cheques were income to Mr. Ibrahim, as the owner of Quantum, and should have been reported on his income tax returns. Apart from Agent King’s bare assertion, there is no evidence provided in the ROC to support the proposition that the proceeds from those cheques were income to Mr. Ibrahim that should have been reported on his personal tax returns. On the contrary, the evidence in the ROC that the cheques were “made payable to Quantum Consulting that were from customers of Quantum and were for services provided by Quantum” would normally lead to the inference that they were income of Quantum and not of Mr. Ibrahim. It may possibly be that the Requesting State has in its possession other evidence that would support Agent King’s assertion, but if so, it has not been summarized in the ROC, and I cannot speculate about it. 100 Mr. Kaushik discussed $900,000.00 that passed through Quantum’s bank account, but the only explanation in the ROC as to the source of that money is the explanation Mr. Ibrahim gave to Mr. Kaushik. Accord- United States v. Ibrahim W.F. Ehrcke J. 305

ing to the ROC, Mr. Kaushik specifically asked Mr. Ibrahim if it was his income, and Mr. Ibrahim told him it was not. 101 Ferras makes it clear that the extradition judge has an obligation to perform a limited weighing of the evidence when considering its sufficiency for committal. Upon performing that limited weighing, I conclude that the bare assertion of Agent King that the cheques made payable to Quantum were income of Mr. Ibrahim that should have been reported on his personal tax returns, unsupported by other evidence in the ROC, is insufficient to support committal. I turn then, to the Crown’s submissions in (a) and (b). 102 The Crown’s submission in (a) is based on the evidence of Mr. Aziz in the ROC. The evidence of Mr. Aziz set out in the ROC states that in 1989 and 1990, Mr. Ibrahim made from $5,000 - $15,000 per day in the immigration scheme and that he charged $500 - $2,500 per alien. Mr. Aziz did not state for how many days they carried on the scheme, so it is not possible to arrive at a precise total amount that Mr. Ibrahim earned. However, Mr. Aziz did state that he was paid a total of $25,000 - $30,000 by Mr. Ibrahim, based on payments of $200 - $300 per alien, which suggests that he helped Mr. Ibrahim work with approximately 120 aliens or perhaps as many as 150. With Mr. Ibrahim’s rate being between $500 - $2,500 per alien, this would be a total of perhaps $300,000 or more, less the $25,000 - $30,000 that he paid to Mr. Aziz. 103 This inference that Mr. Ibrahim made hundreds of thousands of dol- lars in the immigration scheme is not seriously weakened by the affidavit of Mr. Aziz sworn April 26, 2012, that Mr. Ibrahim has tendered. In that affidavit, Mr. Aziz points out that these events occurred more than 20 years ago, and he does not have a clear recollection of them. He points out that lawyers also interviewed the aliens, and part of the fee charged would have gone to the lawyers. 104 The Crown’s submission in (b) is based on the evidence of Ms. Brougher. According to the ROC, she deposited $262,901 worth of cashier’s cheques derived from the immigration scheme into Mr. Ibrahim’s Cayman Islands account in 1990. However, Ms. Brougher also estimated that the total amount she deposited into Mr. Ibrahim’s account in the Cayman Islands between 1989 and 1991 totalled approximately $600,000. In my view, it would be open to a properly instructed jury to draw the inference that this $600,000 was income earned by Mr. Ibrahim from 1989 to 1991 that should have been reported on his personal income tax returns for those three years. 306 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

105 The fact that this might not be an inference that I would draw if I were the trial judge, and the fact that there may be other inferences that could be drawn, does not prevent this from being an inference that a reasonable jury could draw. As Martinson J. noted in United States v. Dhanda (February 19, 2009), Doc. Vancouver 24028 (B.C. S.C.): The relevant legal principles can be summarized this way. First, as stated in Mr. Justice David Watt, Watt’s Manual of Criminal Evi- dence (Toronto: Carswell, 2005) at 108: An inference is a deduction of fact which may logically and reasonably be drawn from another fact or group of facts found or otherwise established in the proceedings. It is a conclusion that may, not must be drawn in the circumstances. [Emphasis added.] Further a judge can engage in a limited weighing of circumstantial evidence to ensure that inferences from the evidence are reasonably supportable: Ferras and Arcuri. The judge does not, however, draw inferences and does not assess credibility. The question is whether the evidence, if believed, could reasonably support an inference of guilt: Ferras; Arcuri and United States v. Lorenz, 2007 BCCA 342, 222 C.C.C. (3d) 16. The mere weakness of evidence in support of committal is itself not enough to warrant the discharge of a person sought for extradition: Graham. ... If the circumstantial evidence is reasonably capable of supporting a number of inferences, and if one of those inferences supports guilt, the person sought must be committed. The inferences need not be compelling or even easily drawn in order to be reasonable: R. v. Katwaru (2001),153 C.C.C, (3d) 433 at 444 (Ont. C.A.). A reasonable inference does not have to be the most probable inference. The limited function of the extradition judge requires the judge to order committal if the evidence as a whole “creates a web of circumstances that, if unanswered, could lead a properly instructed jury, acting reasonably” to drawn an inference of guilt: United States v. Turner (2002), 230 Nfld. & P.E.I.R. 152 at para. 77, 682 A.P.R. 152. 106 Counsel for Mr. Ibrahim points out that the evidence in the ROC does not make it clear how much of Mr. Ibrahim’s income was earned in 1989, how much in 1990, and how much in 1991. However, the ROC states that the actual amounts he reported for those years was $49,828, $220,527, and $37,148, for a total reported income of $307,503 for that period. Since that is less than $600,000, it would be open to a properly United States v. Ibrahim W.F. Ehrcke J. 307

instructed jury to draw the inference that Mr. Ibrahim under-reported his income on his personal tax returns for the period from 1989 - 1991. 107 Counsel for Mr. Ibrahim submits that the evidence in the ROC does not rule out the possibility that some or all of that income was earned by Quantum, and not by Mr. Ibrahim personally. In my view, that submission amounts to an invitation to engage in speculation. The evidence of Ms. Brougher suggests that the $600,000 was Mr. Ibrahim’s income from the immigration scheme. There is no evidence that this was Quan- tum’s income. 108 Thus, in my view the evidence in the ROC is sufficient for a jury to find that the actus reus of an offence equivalent to s. 239(1)(a) of the Income Tax Act has been made out. As to the mens rea, the cumulative effect of the circumstantial evidence would be sufficient for a properly instructed jury to infer that Mr. Ibrahim knew he had misreported his income, or at least that he was wilfully blind in that regard. 109 These inferences are not displaced by the evidence tendered by Mr. Ibrahim. In Mr. Ibrahim’s own affidavit and in the affidavit of William Frantz, there is a suggestion that Ms. Brougher embezzled funds from Mr. Ibrahim and Quantum. That is evidence that might be relevant if led at trial in the United States, but on the extradition hearing it does not show that the evidence in the ROC is so manifestly unreliable that a jury could not infer that Mr. Ibrahim earned $600,000 from the immigration scheme from 1989 to 1991, and that not all of that income was reported. 110 I note that in United States v. Hislop, 2009 BCCA 94 (B.C. C.A.) at para. 31, the Court of Appeal rejected the argument that an extradition judge may choose from amongst competing inferences available from the evidence: The fact that the evidence in the ROC could also support an inference consistent with innocence is insufficient to justify setting aside the committal. The test is whether a jury could convict Mr. Hislop, not whether it would convict him. The choice between competing inferences is ultimately a decision for the fact finder at trial, not for the extradition judge. 111 As I noted above, I have considered all of the evidence tendered by Mr. Ibrahim on the committal hearing, and although some of it may be relevant if led at his trial in the United States, it does not detract from the conclusion I have reached that, based on the evidence admissible at this extradition hearing, it would be open to a properly instructed jury to con- 308 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

vict of the Canadian equivalent offence set out in the Authority to Proceed. 112 I therefore conclude that Mr. Ibrahim must be committed into custody for extradition for prosecution in relation to misrepresentation on his 1989 - 1991 personal tax returns.

Sufficiency of the Case for Imposition of Sentence 113 The Authority to Proceed authorizes the Crown to seek Mr. Ibrahim’s committal for the imposition of sentence by the United States of America. 114 Section 29(1)(b) of the Extradition Act provides for committal if the extradition judge is satisfied that the conviction was in respect of conduct that corresponds to the offence set out in the Authority to Proceed and that the person is the person who was convicted. 115 Given the admissions that have been filed in this case, the identity of Mr. Ibrahim as the person sought and as the person who was convicted has been proven to the requisite standard. 116 The issue for determination, therefore, is whether Mr. Ibrahim’s conviction was in respect of conduct that corresponds to the offence set out in the Authority to Proceed, namely, misrepresentation, contrary to ss. 127 and 128 of the Immigration and Refugee Protection Act. 117 Section 127 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 provides: 127. No person shall knowingly (a) directly or indirectly misrepresent or withhold material facts relating to a relevant matter that induces or could induce an error in the administration of this Act; (b) communicate, directly or indirectly, by any means, false or misleading information or declarations with intent to induce or deter immigration to Canada; or (c) refuse to be sworn or to affirm or declare, as the case may be, or to answer a question put to the person at an examination or at a proceeding held under this Act. 118 Section 128 provides that it is an offence punishable by fine, imprisonment, or both to contravene s. 127. 119 The conduct in relation to Mr. Ibrahim’s conviction is set out in the Sentence ROC and may be summarized as follows: United States v. Ibrahim W.F. Ehrcke J. 309

120 The United States Immigration and Naturalization Service (“INS”) offered an amnesty program under which illegal aliens could become temporary lawful residents by certifying that they worked on a farm in the United States as a farm worker for at least 90 days during 1985. 121 On November 30, 1988, Mr. Ibrahim, under the alias Ali Ibrahim Karim, submitted an application to INS stating that he worked as a farm worker at J.D. Owens Farms in South Carolina for about 120 days during the summer of 1985. Based on that application the INS adjusted Ibrahim’s status to temporary lawful resident. 122 Following a tip received in 1991, INS Special Agent Schroeder interviewed J.D. Owens, who admitted he did not operate a farm in 1985 and that Mr. Ibrahim paid him to falsely certify that he worked for him on his farm in 1985. 123 Agent Schroeder determined that Mr. Ibrahim had been working in a bank in Toronto from March 1985 to February 1986, and that he did not arrive in the United States until 1986. 124 Agent Schroeder also determined, through handwriting analysis on other amnesty applications and through admissions by J.D. Owens, that Mr. Ibrahim had submitted at least 12 other fraudulent amnesty applications to the INS. Aliens whose names appeared on those applications admitted paying him between $700 and $2,000 to prepare the fraudulent applications for them. 125 Mr. Ibrahim was indicted on November 22, 1993 for nine counts of making a false, fictitious or fraudulent statement and misrepresentation on an application for adjustment to temporary resident status in violation of Title 8, United States Code, Section 1160(b)(7)(A). A copy of the indictment is attached to the Sentence ROC. 126 On April 5, 1994, Mr. Ibrahim pled guilty before Judge Forrester to Count 9 on the indictment, which reads: On or about November 30,1998, within the Northern District of Georgia, the defendant, Ali Ibrahim, did file an application for adjustment of temporary resident status under Title 8, United States Code, Section 1160, and knowingly and wilfully did make a false, fictitious, and fraudulent statement and representation, namely, that the defendant had worked 115 days from May 1985 to December 1985 as a fieldworker at J.D. Farms, Pelzer, South Carolina, when in truth and in fact, as the defendant well knew, he had done no field- work at J.D. Farms, in violation of Title 8, United States Code, Sec- tion 1160(b)(7)(A). 310 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

127 A copy of the Motion to Change Plea and Negotiated Plea is attached to the Sentence ROC as Exhibit 2. 128 On September 30, 1994, Mr. Ibrahim was sentenced to three years probation, with conditions. A copy of the judgment and probation order is attached to the Sentence ROC as Exhibit 3. 129 According to the Sentence ROC, Mr. Ibrahim’s supervising probation officer, Ron McNaughton, will testify that he gave Mr. Ibrahim permission to travel to India in the fall of 1996, but instructed him to personally report to him on November 1, 1996, when Ibrahim returned from India. Mr. Ibrahim did not report to McNaughton on November 1, 1996, and did not submit his required monthly reports for October, November, and December 1996. 130 Records of the United States District Court for the Northern District of Georgia establish that on January 6, 1997, McNaughton submitted a petition for warrant and order to show cause why his probation should not be revoked. Judge Forrester signed the petition and issued a warrant for Mr. Ibrahim’s arrest on January 24, 1997. 131 I am satisfied that the conduct in relation to Mr. Ibrahim’s conviction, as set out in the Sentence ROC, corresponds to the Canadian offences set out in the Authority to Proceed. The Sentence ROC indicates that he misrepresented material facts relating to a relevant matter that induced an error in the administration of the Act and communicated false or misleading information with intent to induce immigration. This conduct for which Mr. Ibrahim was convicted in the Requesting State corresponds to s. 127(a) and (b) of the Immigration and Refugee Protection Act. 132 Mr. Ibrahim has filed an affidavit of Mark Newman suggesting that Mr. Ibrahim was inadmissible in the United States to complete his sentence of probation. That is a matter to be raised at the hearing in the United States, and not on this committal application. Even if it could be established that Mr. Ibrahim had a problem re-entering the United States, it still would not explain his failure to submit his required monthly reports for October, November, and December 1996. 133 Mr. Ibrahim has also filed an affidavit of Ronald McNaughton sworn February 2, 2010, in which Mr. McNaughton deposed that Mr. Ibrahim completed all the terms of his probation and he did not have any problems with Mr. Ibrahim while he was on probation. United States v. Ibrahim W.F. Ehrcke J. 311

134 However, the Requesting State provided a Supplemental ROC that clarifies these matters. In particular, paragraph 4 of the Supplemental ROC states: 4. McNaughton will testify further that in 2010, he has no independent recollection of the status of IBRAHIM’s probation in January 1997. Nor does McNaughton have an independent recollection of conversations that he had with IBRAHIM in 1996 regarding IBRAHIM’s travel to and return from India. McNaughton has reviewed his handwritten summaries of his communications with IBRAHIM about IBRAHIM’s travel to and return from India. He recognizes the handwriting as his own. He will testify that each summary was intended to be an accurate account of the conversation that he had with IBRAHIM. Based upon the summaries, McNaughton can testify that, as of the fall of 1996, IBRAHIM was on probation and assigned to McNaughton’s caseload, and that IBRAHIM had not successfully completed his probation. McNaughton will testify that IBRAHIM sought and was granted permission to travel to India in the fall of 1996, that IBRAHIM was to return on or before November 1, 1996, that IBRAHIM called him from India and requested that his return date be extended past November 1, 1996, that McNaughton denied Ibrahim’s request, that McNaughton instructed IBRAHIM orally and by letter to report in person on November 1, 1996, that IBRAHIM did not report to McNaughton in person on November 1, 1996, as instructed, and that McNaughton did not have any contact with IBRAHIM thereafter. 135 As well, Mr. McNaughton explained the circumstances of his swear- ing his February 2, 2010 affidavit. Paragraph 6 of the Supplemental ROC explains: McNaughton will testify further that IBRAHIM contacted him and led him to believe that IBRAHIM was being denied entry into the United States because of his probation status and that he needed an affidavit from McNaughton to clear up his probation status for the Canadian authorities. IBRAHIM did not advise McNaughton that IBRAHIM intended to use the affidavit in opposition to the efforts of the United States to extradite him to the United States for a revocation hearing. McNaughton will testify further that IBRAHIM prepared the affidavit and that McNaughton made amendments to it before he signed it and that he signed the affidavit without reviewing records kept by the Clerk of Court or the United States Probation Office. Because he has no independent recollection of the status of IBRAHIM’s Probation in January 1997, or that he sought a warrant for IBRAHIM’s arrest in January 1997, his statements in the affidavit 312 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

that “as far as I am aware, he (IBRAHIM) completed all terms of his probation,” and “From my perspective, Mr. IBRAHIM successfully completed his probation. I have no present recollection of making any application for a warrant in respect of any allegation that Mr. IBRAHIM breached his probation. I do not presently recall if such a warrant ever issued in respect of Mr. IBRAHIM” were not techni- cally untrue when he signed the affidavit. McNaughton will testify further that based upon his subsequent review of the records of the Clerk of Court and the United States Probation Office, specifically, Government Exhibits 6 and 7, the petition for revocation and the arrest warrant issued by Judge Forrester respectively, he now under- stands that IBRAHIM did not successfully complete his period of probation, that he did petition Judge Forrester for a warrant for IBRAHIM’s arrest for violating the terms of his probation, and that Judge Forrester did, in fact, issue the warrant 136 I am satisfied that there is nothing in the affidavits filed by Mr. Ibrahim that would provide a reason not to order his committal for imposition of sentence. 137 Mr. Ibrahim’s counsel submits that the Requesting State is seeking his extradition for an incorrect or improper purpose. He submits that the Sentence ROC shows that Mr. Ibrahim has already been sentenced at the time the probation order was imposed, and therefore it would be improper to return him now for the imposition of sentence as set out in the Authority to Proceed. He submits that this would violate s. 11(h) of the Charter of Rights. 138 The basis for seeking Mr. Ibrahim’s return is explained in paragraph 6 of the Sentence ROC: 6. Under U.S. law, if the district court determines that a defendant has violated the terms of his probation, the court may continue the defendant on probation or revoke probation and sentence the defendant to the maximum penalty provided by the statute of conviction. The maximum penalty for violating Title 8, United States Code, Sec- tion 1160(b)(7)(A) is five years incarceration. Therefore, the maximum sentence that IBRAHIM faces for violating the conditions of his probation is five years incarceration. 139 It is arguable that it might have been more appropriate to state in the Authority to Proceed that Mr. Ibrahim is sought for the “enforcement” of sentence rather than for the “imposition” of sentence. Interestingly, while the Authority to Proceed uses only the word “imposition”, the certification of the Sentence ROC is headed: “Certification of Record of the Case for Imposition or Enforcement of a Sentence.” United States v. Ibrahim W.F. Ehrcke J. 313

140 However, that is a matter for the Minister to consider. It is not part of my role as extradition judge to look behind the Authority to Proceed or to question the purpose for which the person is sought. I agree with the comments of Vertes J. in Germany (Federal Republic) v. Ebke (2001), 158 C.C.C. (3d) 253 (N.W.T. S.C.) at paras. 28-29: On this issue I agree with counsel for the Attorney General. It would not be warranted to conclude, merely from an examination of the wording of the German documents, that Ebke is wanted just for investigation purposes. More importantly, this is not an issue that is within my statutory mandate as the extradition judge to decide. In my opinion, any determination as to the “purpose” for the extradition request or the request for the arrest warrant rests with the Minister. There is nothing, in the Act or otherwise, to suggest that the extradition judge has jurisdiction to determine whether someone is a person sought for the “purpose of prosecution” or to review the decision of the Minister in this regard. It is the Minister who must determine if the statutory foundations in s. 3(1) of the Act are satisfied before issuing either an Authority to Proceed (so as to commence the committal proceedings) or the au- thorization to the Attorney General to apply for a provisional arrest warrant. This court has no review or appellate jurisdiction over those decisions. On this point I agree with the comments of Watt J. in Germany v. Schreiber, [2000] O.J. No. 2618 (S.C.J.), at para. 87: It is the responsibility of the Minister to implement extradition agreements, administer the Act and deal with the requests for extradition made under either or both of them. The requests for provisional arrest or extradition are made to the Minister. It is for the Minister to review the materials offered by the extradition partner in support of the request to determine whether it is in order. This determination involves, amongst other things, a consideration of foreign law. It is the Minister who must be satisfied that the requirements of s 3(1)(a) of the Act have been met before she or he is entitled to instruct the Attorney General to apply for a provisional warrant of arrest under s. 12 or issue an authority to the Attorney General to proceed under s. 15(1) of the Act. Section 3(1)(a) of the Act defines extraditable conduct. It also makes it clear that the purpose of the extradition partner in requesting extradition must be any of i. prosecuting the fugitive; ii. imposing a sentence; or, 314 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

iii. enforcing a sentence already imposed in the foreign jurisdiction. There is nothing in the Act or treaty that entitles the extradition hearing judge to review the Minister’s decision or decide, de novo as it were, whether the fugitive is a person sought for prosecution. See also United States v. Drysdale, [2000] O.J. No. 214(at para. 78); United States v. Quintin, [2000] O.J. No. 791(at para. 101). 141 I am therefore satisfied that Mr. Ibrahim should be committed for extradition for imposition of a sentence as set out in the Authority to Proceed.

Conclusion 142 To summarize, Mr. Ibrahim’s application for disclosure is denied. His application for a stay of proceedings based on abuse of process is dismissed. 143 The application of the Requesting State for the committal of Ali Ibrahim for prosecution and for imposition of a sentence is granted. 144 I order that Ali Ibrahim be committed into custody to await surrender. 145 I request that counsel for the Attorney General of Canada prepare the formal order of committal in accordance with s. 29(2) of the Extradition Act. The materials described in s. 38(1) of the Extradition Act will be transmitted to the Minister. 146 Mr. Ibrahim, in accordance with s. 38(2) of the Extradition Act, I am obliged to inform you that you will not be surrendered until after the expiry of 30 days, and that you have a right to appeal the order and to apply for judicial interim release. 147 Finally, I should like to thank all counsel for their thorough submissions. Application granted; cross-applications dismissed. Liang v. Canada (MCI) 315

[Indexed as: Liang v. Canada (Minister of Citizenship & Immigration)] Dong Liang, Applicant and The Minister of Citizenship and Immigration, Respondent Phool Maya Gurung, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-9634-11, IMM-137-12 2012 FC 758 Donald J. Rennie J. Heard: June 5, 2012 Judgment: June 14, 2012 Immigration and citizenship –––– Admission — Immigrants — Skilled workers — General principles –––– Ministerial instructions published under s. 87.3 of Immigration and Refugee Protection Act (IRPA) cannot constitute satisfactory justification for delay in processing applications for permanent residence under federal skilled worker class made prior to February 27, 2008 — Section 120 of Budget Implementation Act, 2008 specified that s. 87.3 of IRPA applied only to applications made after February 27, 2008 — To permit Minister of Citi- zenship and Immigration to rely on subsequent policy changes to justify delay would in essence eliminate his duty to process applications in reasonably timely manner — Minister has authority to set processing times for department but once application has been delayed past those processing times without satisfactory justification, court is authorized to intervene — Section 87.3 of IRPA does not eliminate Minister’s long-standing, well-accepted duty to process applications in reasonably timely manner. Immigration and citizenship –––– Admission — Appeals and judicial review — Judicial review — Miscellaneous. Administrative law –––– Prerogative remedies — Mandamus — Perform- ance of public duty — General principles. Cases considered by Donald J. Rennie J.: Apotex Inc. v. Canada (Attorney General) (1993), 1993 CarswellNat 820, 1993 CarswellNat 1357, (sub nom. Apotex Inc. v. Merck & Co.) 69 F.T.R. 152 (note), 51 C.P.R. (3d) 339, 162 N.R. 177, [1994] 1 F.C. 742, 18 Admin. L.R. (2d) 122, [1993] F.C.J. No. 1098 (Fed. C.A.) — followed 316 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

Apotex Inc. v. Canada (Attorney General) (1994), 29 Admin. L.R. (2d) 1, 59 C.P.R. (3d) 82, 1994 CarswellNat 1402, 1994 CarswellNat 1501, (sub nom. Apotex Inc. v. Merck & Co.) 176 N.R. 1, [1994] 3 S.C.R. 1100, EYB 1994- 67302, [1994] A.C.S. No. 113, [1994] S.C.J. No. 113 (S.C.C.) — referred to Conille v. Canada (Minister of Citizenship & Immigration) (1998), [1999] 2 F.C. 33, 1998 CarswellNat 2788, 15 Admin. L.R. (3d) 157, 1998 Car- swellNat 2905, (sub nom. Conille v. Canada (Ministre de la Citoyennet´e et de l’Immigration)) 159 F.T.R. 215, [1998] F.C.J. No. 1553 (Fed. T.D.) — followed Li v. Canada (Minister of Citizenship & Immigration) (2011), 2011 CAF 110, 2011 CarswellNat 1944, 96 Imm. L.R. (3d) 1, 420 N.R. 30, 2011 Car- swellNat 754, 2011 FCA 110 (F.C.A.) — referred to Reference re Amendment to the Constitution of Canada (1981), (sub nom. Reference re Amendment of the Constitution of Canada (Nos. 1, 2 and 3)) 125 D.L.R. (3d) 1, (sub nom. Constitutional Amendment References 1981, Re) 11 Man. R. (2d) 1, (sub nom. Manitoba (Attorney General) v. Canada (Attorney General)) [1981] 6 W.W.R. 1, 1981 CarswellMan 110, (sub nom. Constitutional Amendment References 1981, Re) 39 N.R. 1, (sub nom. Constitutional Amendment References 1981, Re) 34 Nfld. & P.E.I.R. 1, (sub nom. Constitutional Amendment References 1981, Re) 95 A.P.R. 1, (sub nom. Resolution to amend the Constitution, Re) [1981] 1 S.C.R. 753, 1981 CarswellMan 360, (sub nom. Resolution to Amend the Constitution of Canada, Re) 1 C.R.R. 59 (S.C.C.) — considered Shapovalov v. Canada (Minister of Citizenship & Immigration) (2005), 45 Imm. L.R. (3d) 306, 276 F.T.R. 66, 2005 FC 753, 2005 CarswellNat 1495, 36 Admin. L.R. (4th) 163, 2005 CarswellNat 5990, 2005 CF 753 (F.C.) — referred to Subaharan v. Canada (Minister of Citizenship & Immigration) (2008), 2008 CarswellNat 4073, 2008 FC 1228, 76 Imm. L.R. (3d) 16 (F.C.) — referred to Toussaint v. Canada (Minister of Citizenship & Immigration) (2011), 2011 FCA 208, 2011 CarswellNat 2311, (sub nom. Ndungu v. Canada (Minister of Citizenship & Immigration)) 423 N.R. 228, [2011] F.C.J. No. 933 (F.C.A.) — referred to Vaziri v. Canada (Minister of Citizenship & Immigration) (2006), 2006 Car- swellNat 3014, 2006 FC 1159, 2006 CF 1159, 2006 CarswellNat 4791, 300 F.T.R. 158 (Eng.), 55 Imm. L.R. (3d) 247, 52 Admin. L.R. (4th) 118, [2006] A.C.F. No. 1458, [2006] F.C.J. No. 1458 (F.C.) — considered Vriend v. Alberta (1998), 50 C.R.R. (2d) 1, 224 N.R. 1, 212 A.R. 237, 168 W.A.C. 237, 31 C.H.R.R. D/1, [1999] 5 W.W.R. 451, 67 Alta. L.R. (3d) 1, [1998] 1 S.C.R. 493, 98 C.L.L.C. 230-021, 4 B.H.R.C. 140, 1998 Carswell- Liang v. Canada (MCI) Donald J. Rennie J. 317

Alta 210, 1998 CarswellAlta 211, 156 D.L.R. (4th) 385, [1998] S.C.J. No. 29 (S.C.C.) — referred to Statutes considered: Budget Implementation Act, 2008, S.C. 2008, c. 28 Generally — referred to s. 120 — considered Immigration and Refugee Protection Act, S.C. 2001, c. 27 Generally — referred to s. 3(1)(a) — referred to s. 3(1)(c) — referred to s. 3(1)(f) — referred to s. 87.3 [en. 2008, c. 28, s. 118] — considered s. 87.4(1) [en. 2012, c. 19, s. 707] — referred to s. 87.4(2) [en. 2012, c. 19, s. 707] — considered Jobs, Growth and Long-term Prosperity Act, S.C. 2012, c. 19 Generally — referred to Rules considered: Federal Courts Immigration and Refugee Protection Rules, SOR/93-22 Generally — referred to R. 22 — considered

APPLICATIONS for orders of mandamus compelling Minister of Citizenship and Immigration to process applicants’ applications for permanent residence under federal skilled worker class.

Timothy E. Leahy, for Applicant Angela Marinos, Alison Engel-Yan, Jane Stewart, for Respondent

Donald J. Rennie J.:

1 The applicants seek orders of mandamus compelling the Minister of Citizenship and Immigration (Minister) to process their applications for permanent residence under the federal skilled worker (FSW) class. 2 The applications at issue were selected through a case management process as representative cases for two groups of applicants whose FSW applications have not been processed to completion. Applicant Dong Li- ang represents 671 applicants who submitted their applications before February 27, 2008, when amendments to the Immigration and Refugee Protection Act, SC 2001, c 27 (IRPA) were enacted through the Budget Implementation Act, 2008, SC 2008, c 28 or “Bill-C50” (pre-C50 applications). Applicant Phool Maya Gurung represents 154 applicants who 318 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

submitted their applications between February 27, 2008 and June 26, 2010, a period of time during which eligibility for a FSW visa was governed by a set of Ministerial Instructions (MI1 applications). They both allege that the Minister has unreasonably delayed processing their applications by choosing to accord higher priority to applications submitted more recently and according to different criteria. 3 For the reasons that follow, the application in respect of Mr. Liang is granted, and dismissed in respect of Ms. Gurung. No order is made in respect of the other applications held in abeyance pending the outcome of this litigation. The Court has been informed that the parties have agreed on a protocol to address those cases based on the outcome of these two applications.

Background: Changes to the Federal Skilled Worker Program 4 By 2008, Citizenship and Immigration Canada (CIC) faced an enor- mous backlog of FSW applications. Over 600,000 applications were ex- tant, a number which would only continue to grow since incoming applications continually exceeded the department’s processing capacity. This backlog, or more precisely, the lag time between the application, its processing and ultimate assessment, made it increasingly difficult to align candidates’ experience and skills to Canada’s prevailing labour market needs. Any changes to the eligibility criteria would not truly take effect for several years when those applications were finally processed. 5 In response to this problem, the IRPA was amended in February 2008 to introduce section 87.3. The amendments authorized the Minister to issue instructions regarding which applications would be eligible for processing (Ministerial Instructions) and removed the obligation to process every application received. The amendments granted the Minister broad authority to triage the applications according to revised eligibility criteria, including the establishment of categories of applicants, global levels or quotas for all FSW applications, and sub-levels or quotas for particular occupations. Application 87.3 (1) This section applies to applications for visas or other documents made under subsection 11(1), other than those made by persons referred to in subsection 99(2), sponsorship applications made by persons referred to in subsection 13(1), applications for permanent resident status under subsection 21(1) or temporary resident status under subsection 22(1) made by foreign nationals in Canada and to Liang v. Canada (MCI) Donald J. Rennie J. 319

requests under subsection 25(1) made by foreign nationals outside Canada. Attainment of immigration goals (2) The processing of applications and requests is to be conducted in a manner that, in the opinion of the Minister, will best support the attainment of the immigration goals established by the Government of Canada. Instructions (3) For the purposes of subsection (2), the Minister may give instructions with respect to the processing of applications and requests, including instructions (a) establishing categories of applications or requests to which the instructions apply; (b) establishing an order, by category or otherwise, for the processing of applications or requests; (c) setting the number of applications or requests, by category or otherwise, to be processed in any year; and (d) providing for the disposition of applications and requests, including those made subsequent to the first application or request. Compliance with instructions (4) Officers and persons authorized to exercise the powers of the Minister under section 25 shall comply with any instructions before processing an application or request or when processing one. If an application or request is not processed, it may be retained, returned or otherwise disposed of in accordance with the instructions of the Minister. Clarification (5) The fact that an application or request is retained, returned or otherwise disposed of does not constitute a decision not to issue the visa or other document, or grant the status or exemption, in relation to which the application or request is made. Publication (6) Instructions shall be published in the Canada Gazette. Clarification (7) Nothing in this section in any way limits the power of the Min- ister to otherwise determine the most efficient manner in which to administer this Act. 320 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

Application 87.3 (1) Le présent article s’applique aux demandes de visa et autres documents visées au paragraphe 11(1), sauf celle faite par la personne visée au paragraphe 99(2), aux demandes de parrainage faites par une personne visée au paragraphe 13(1), aux demandes de statut de résident permanent visées au paragraphe 21(1) ou de résident temporaire visées au paragraphe 22(1) faites par un etranger´ se trouvant au Canada ainsi qu’aux demandes prévues au paragraphe 25(1) faites par un etranger´ se trouvant hors du Canada. Atteinte des objectifs d’immigration (2) Le traitement des demandes se fait de la manière qui, selon le ministre, est la plus susceptible d’aider l’atteinte des objectifs fixés pour l’immigration par le gouvernement fédéral. Instructions (3) Pour l’application du paragraphe (2), le ministre peut donner des instructions sur le traitement des demandes, notamment en précisant l’un ou l’autre des points suivants: a) les catégories de demandes a` l’égard desquelles s’appliquent les instructions; b) l’ordre de traitement des demandes, notamment par catégorie; c) le nombre de demandes a` traiter par an, notamment par catégorie; d) la disposition des demandes dont celles faites de nouveau. Respect des instructions (4) L’agent — ou la personne habilitée a` exercer les pouvoirs du ministre prévus a` l’article 25 — est tenu de se conformer aux instructions avant et pendant le traitement de la demande; s’il ne procède pas au traitement de la demande, il peut, conformément aux instructions du ministre, la retenir, la retourner ou en disposer. Précision (5) Le fait de retenir ou de retourner une demande ou d’en disposer ne constitue pas un refus de délivrer les visa ou autres documents, d’octroyer le statut ou de lever tout ou partie des critères et obligations applicables. Publication (6) Les instructions sont publiées dans la Gazette du Canada. Liang v. Canada (MCI) Donald J. Rennie J. 321

Précision (7) Le présent article n’a pas pour effet de porter atteinte au pouvoir du ministre de déterminer de toute autre fa¸con la manière la plus effi- cace d’assurer l’application de la loi. 6 Importantly, section 120 of the 2008 Budget Implementation Act provided that the amendments were prospective only, and applied only in regards to FSW applications submitted on or after February 27, 2008: Application 120. Section 87.3 of the Immigration and Refugee Protection Act applies only to applications and requests made on or after February 27, 2008. Demandes 120. L’article 87.3 de la Loi sur l’immigration et la protection des réfugiés ne s’applique qu’à l’égard des demandes faites a` compter du 27 février 2008.

The Ministerial Instructions 7 Since this amendment, the Minister has published four different sets of Ministerial Instructions. The first set of Ministerial Instructions was published on November 29, 2008 (MI1). They applied to applications received on or after February 27, 2008. Pursuant to the MI1, applications would only be eligible to be processed if the applicant: had experience in one of 38 listed occupations; an arranged offer of employment (AEO); or was legally residing in Canada as a temporary foreign worker or international student. 8 The MI1 were ultimately unsuccessful in restraining the growth of applications. The backlog diminished at first, but eventually application levels increased beyond the levels before Bill C-50. Thus, on June 26, 2010, the second set of Ministerial Instructions was published (MI2). They applied to applications received on or after that date. The MI2 directed that applications would only be eligible to be processed if the applicant had an AEO or the applicant had experience in one of 29, as opposed to 38, listed occupations. The MI2 introduced a global cap on FSW applications: a maximum of 20,000 applications (excluding those with an AEO) were to be placed into processing each year. Within that cap, a maximum of 1,000 applications per occupational category were to be processed each year. Applications exceeding that cap would be returned unprocessed. 322 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

9 On June 27, 2011, the third set of Ministerial Instructions was published (MI3). They applied to applications received on or after July 1, 2011. The MI3 reduced the total annual cap for FSW applications to 10,000, with a maximum of 500 per occupation. The eligibility criteria in the MI2 groups (applicants with an AEO or experience in the 29 listed occupations) remained the same. 10 The fourth set of Ministerial Instructions, published in November 2011 (MI4), did not affect the occupation list, global levels or occupational caps, but created a new stream of eligible applications — namely, international students currently studying in, or recently graduated from, Canadian Ph.D. programs. This new stream was capped at 1,000 applications each year. Other than adding to the processing burden on CIC, the MI4 are not relevant to these applications. 11 The 2008 amendments and the ensuing Ministerial Instructions have had two main consequences: first, for all applications submitted after each set of instructions took effect, applicants needed to meet the revised eligibility criteria or the application would not be processed. This change prevented, at least from the respondent’s perspective, the backlog from continuing to grow. The total cap of 20,000, then 10,000 and the related occupational sub-caps allowed CIC to return applications once the annual cap was met. Second and most important to the applicants in this case, the instructions created a hierarchy of processing priority among FSW applications: those received under MI2 and MI3 were given the highest priority, followed by applications received under MI1 and finally, pre-C50 applications. 12 This has not resulted in a complete halt to the processing of pre-C50 applications. According to the affidavit of J. McNamee submitted by the Minister, 34% of all FSW visas issued in 2011 were issued to pre-C50 applicants. Pre C-50 Skilled Workers — Cases Finalized Overseas in 2011 by Disposition (Approved, Refused, and Withdrawn) Approved Refused Withdrawn Total 2011 Cases 6,242 3,466 1,943 11,651 13 However, the Minister’s instructions have indisputably delayed the processing of the pre-C50 applications. Furthermore, the MI2 and MI3 instructions delayed the processing of MI1 applications, since MI2 and MI3 applications have been accorded the highest processing priority. Liang v. Canada (MCI) Donald J. Rennie J. 323

Pre-C50 Representative Case (Liang) 14 The representative applicant for the pre-C50 applications, Mr. Liang, is a citizen of China. He submitted an application for permanent residence under the FSW class as an IT project manager. It was received by CIC on October 11, 2007. According to the Computer Assisted Immigra- tion Processing System (CAIPS) notes in his file, he received a positive selection decision on March 10, 2010, having attained 81 points (well over the minimum required 67 points). 15 Despite the positive selection decision, Mr. Liang’s application did not move to acceptance and remains outstanding. When Mr. Liang in- quired with CIC as to the timeline for completing his application he received an email response from the Beijing visa post, dated June 7, 2011, which stated in part: At this time, we are not actively processing Federal Skilled Worker cases submitted before February 27, 2008 as we have sufficient applications in process to meet our assigned targets. Updates on the processing of applications submitted before February 27, 2008 will be provided when new information is available. 16 The respondent characterizes this as a mere suspension of Liang’s application, suggesting that what the officer at the Beijing Visa post intended to say was that either or both of the global and occupational levels had been reached. The Minister contends that this suspension does not amount to unreasonable delay, as it was now, following the 2008 amendments, authorized by legislation.

MI1 Representative Case (Gurung) 17 The representative applicant for the MI1 applications, Ms. Gurung, is a citizen of India. She submitted an application for permanent residence under the FSW class as a head nurse on April 8, 2010 while MI1 was in effect. In October 2010, CIC erroneously sent Ms. Gurung an ineligibil- ity letter based on the mistaken belief that she had not submitted her completed application within the prescribed time period. Once it was dis- covered that she had in fact submitted a full application, her file was reopened and she was advised that processing would continue. 18 In April 2011, CIC was informed by IDP Canada (IDP), the organization that oversees and monitors language testing, that it was investigating the Ms. Gurung’s International English Language Testing System (IELTS) Test Report Form for suspected fraud. Immigration Officer B. 324 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

Rappaport states in his affidavit that CIC then placed processing of the application on hold while waiting for the outcome of IDP’s investigation. 19 It appears no further action was taken on this file until Ms. Gurung submitted this application for judicial review. As will be discussed below, recent developments have affected the practical value of an order for mandamus in respect of her application.

Jobs, Growth and Long-Term Prosperity Act1 20 The Jobs, Growth and Long-Term Prosperity Act, the Bill currently before Parliament implementing the 2012-2013 budget, amends the IRPA provision governing the processing of FSW applications. If passed, that Bill will amend the IRPA to include section 87.4(1), pursuant to which any outstanding application made before February 27, 2008 which has not received a positive selection decision before March 29, 2012 is terminated. While this would not affect Mr. Liang’s application because he has a positive selection decision, this proposal would eliminate approximately 95% of the pre-C50 applications. 21 Section 87.4(2) also provides that any final Court order made after March 29, 2012, in respect of the terminated applications is of no force and effect. 22 While both the applicants and the respondent sought to rely on the existence of this amendment currently before the House of Commons, it has not, and cannot, play any part in the disposition of these applications. Proposed legislated is simply that — an amendment proposed by the Government that is subject to debate and vote in Parliament. It may be withdrawn, it may be amended, or it may pass in its present form. For these reasons, as the Supreme Court of Canada (SCC) said in Reference re Amendment to the Constitution of Canada, [1981] 1 S.C.R. 753 (S.C.C.) at page 785, “Courts come into the picture when legislation is enacted and not before...”. At a practical level, courts do not consider proposed legislation as it is premature and speculative. At a Constitu- tional level, the principle maintains a clear demarcation between the roles played by the legislature and the judiciary. The dialogue that occurs

1Bill C-38, An Act to implement certain provisions of the budget tabled in Parliament on March 29, 2012 and other measures, 1st Sess, 41st Parl, 2012 (short title: Jobs, Growth and Long-term Prosperity Act). Liang v. Canada (MCI) Donald J. Rennie J. 325

between the branches of government takes place in respect of actual legislation: Vriend v. Alberta, [1998] 1 S.C.R. 493 (S.C.C.).

Issues 23 The issues for determination may be simply framed: 1. Have the applicants met the requirements for an order compelling the Minister to process their applications? 2. Do the applicants have a legitimate expectation that their applications would be processed on a first-in, first-out basis?

Have the applicants met the requirements for an order compelling the Minister to process their applications? 24 Mandamus is a discretionary, equitable remedy. The parties agree on the legal test for mandamus, as set out in Apotex Inc. v. Canada (Attorney General) (1993), [1994] 1 F.C. 742 (Fed. C.A.) at para 45, aff’d [1994] 3 S.C.R. 1100 (S.C.C.), which has been applied in the immigration context (see for example Conille v. Canada (Minister of Citizenship & Immigration) (1998), [1999] 2 F.C. 33 (Fed. T.D.); Vaziri v. Canada (Minister of Citizenship & Immigration), 2006 FC 1159 (F.C.)): 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 performance of that duty, in particular: (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 demand unless refused outright; and (iii) a subsequent refusal which can be either expressed or implied, e.g. unreasonable delay; 4. Where the duty sought to be enforced is discretionary, the following rules apply: (a) in exercising a discretion, the decision-maker must not act in a manner which can be characterized as “unfair”, “oppressive” or demonstrate “flagrant impropri- ety” or “bad faith”; 326 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

(b) mandamus is unavailable if the decision-maker’s discretion is characterized as being “unqualified”, “abso- lute”, “permissive” or “unfettered”; (c) in the exercise of a “fettered” discretion, the decision- maker must act upon “relevant”, as opposed to “irrele- vant”, considerations; (d) mandamus is unavailable to compel the exercise of a “fettered discretion” in a particular way; and (e) mandamus is only available when the decisionmaker’s discretion is “spent”; i.e., the applicant has a vested right to the performance of the duty. 5. No other adequate remedy is available to the applicant. 6. The order sought will be of some practical value or effect. 7. The Court in the exercise of its discretion finds no equitable bar to the relief sought. 8. On a “balance of convenience” an order in the nature of mandamus should (or should not) issue. [Citations omitted] 25 It is common ground between the parties that the Minister owes a duty to the applicants to process their applications, and that unreasonable delay amounts to an implied refusal to perform the duty. The Minister contends that even if there is delay, it is justified. The question of satisfactory justification for the delay is the central dispute in these applications. The Minister also raises issues regarding alternative remedies and equitable bars to relief, briefly addressed below.

Was there Unreasonable Delay? 26 The parties agree on the test for whether there has been an unreasonable delay, as articulated in Conille, above, at para 23: ...three requirements must be met if a delay is to be considered unreasonable: (1) the delay in question has been longer than the nature of the process required, prima facie; (2) the applicant and his counsel are not responsible for the delay; and (3) the authority responsible for the delay has not provided satisfactory justification. 27 At issue therefore, in light of the amended legislation and the evolv- ing Ministerial Instructions, is whether the delay in question is longer than the nature of the process requires and, secondly, whether there is a Liang v. Canada (MCI) Donald J. Rennie J. 327

satisfactory justification for the delay. I will first address the issues of length of delay and justification broadly, as they apply to all the applications at issue, before applying those principles to the two representative cases before the Court.

Length of Delay 28 The pre-C50 applications were all submitted before February 27, 2008. The most recent applications in that group have been outstanding for at least 4.5 years, and some of them have been awaiting processing for as long as 9 years. The Minister did not argue very forcefully before the Court that this delay does not amount prima facie to a longer delay than the nature of the process requires. 29 With respect to the MI1 applicants, the Minister, both in his report to Parliament and in a media release, indicated that FSW applications would now receive a decision within approximately 6 to 12 months. What the Action Plan for Faster Immigration’s instructions mean for applicants Federal skilled worker applications received on or after February 27, 2008, will now be assessed for eligibility according to the criteria set out in the instructions. [...] New federal skilled worker applicants, including those with arranged employment, should receive a decision within six to 12 months. http://www.cic.gc.ca/english/department/media/backgrounders/2008/2008- 11-28.asp 30 The MI1 applications have all been outstanding for somewhere between 24-52 months. 31 In light of the number of years that have expired, and the government’s own statement of what is a reasonable period of time, I conclude that a prima facie case of delay is established in respect of both the pre- C50 and the MI1 applications, and turn to the question whether there is a reasonable justification.

Justification for Delay - Discretion to Set Policy and Ministerial Instructions 32 The Minister submits that any delay in the processing of the applications at issue is justified by the Minister’s policy choice to prioritize certain applications over others. The Minister argues that this kind of policy-making is authorized by section 87.3, the Ministerial Instructions, and the Minister’s general authority to administer the IRPA. 328 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

33 The Minister’s argument cannot succeed — first, because section 87.3 and the Ministerial Instructions are expressly inapplicable to the pre-C50 applications; second, because pursuant to the Minister’s own policy, the MI1 applications were to be processed within 6-12 months and were not to be affected by subsequent instructions; and third, because the Minister has framed the argument so broadly that it would in effect nullify his duty to process any application in a timely manner. 34 Turning to the first reason, the Minister cannot rely on section 87.3 of the Act, or the resulting Ministerial Instructions, to justify delay of the pre-C50 applications, because Parliament clearly expressed its intention that the processing of pre-C50 applications would be unaffected by the Ministerial Instructions. Section 120 of the Budget Implementation Act, 2008, above, provides: Application 120. Section 87.3 of the Immigration and Refugee Protection Act applies only to applications and requests made on or after February 27, 2008. Demandes 120. L’article 87.3 de la Loi sur l’immigration et la protection des réfugiés ne s’applique qu’à l’égard des demandes faites a` compter du 27 février 2008. 35 The Minister concedes in written submissions that the MIs were to be applied prospectively only. Indeed, the Ministerial Instructions themselves confirm, as section 120 already made clear, that the processing of pre-C50 applications would be unaffected. The MI1 provides: • The Instructions apply only to applications and requests made on or after February 27, 2008. • All applications and requests made prior to February 27, 2008, shall be processed in the manner existing at the time of application. 36 Thus, in respect of the pre-C50 applications, the Ministerial Instruc- tions cannot constitute a satisfactory justification for delay. 37 The Minister’s argument fails on the facts in respect of the MI1 applications as well. Pursuant to his policy choices as embodied in the MI1, applications submitted under those instructions were to be processed within 6-12 months. Thus, the Minister exercised his power under section 87.3 of the Act to set a policy regarding FSW applications, and the Liang v. Canada (MCI) Donald J. Rennie J. 329

MI1 applications have been delayed substantially past the processing time as set pursuant to that policy. 38 The Minister also cannot reasonably rely on the subsequent Ministe- rial Instructions to explain the delay with respect to the MI1 applications, because those instructions expressly state that they only apply prospectively, and applications submitted under previous instructions are unaffected. For example, the MI2 states that all FSW applications received before its publication “...shall continue to be considered for processing having regard to the first set of Ministerial Instructions.” Thus, similar to the pre-C50 applications, the MI1 applications were not to be affected by subsequent instructions, and thus any policy choices embodied in those subsequent instructions cannot justify delay in respect of the MI1 applications. 39 Finally, to permit the Minister to rely on a subsequent policy change to justify delay would in essence eliminate his duty to process applications in a reasonably timely manner. The heart of the Minister’s argument before the Court was that, even apart from section 87.3 of the Act and the Ministerial Instructions, he has an overarching authority to prioritize certain applications over others pursuant to his general authority to administer the Act, and the exercise of that authority is sufficient justification for any delay. The decision of Justice Judith Snider in Vaziri, above, confirms that the Minister does have this general administrative authority. 40 Canadian jurisprudence has long recognized that Ministers have an obligation to perform their legal duties in a reasonably timely manner. This legal duty has long coexisted with the understanding that Ministers are accountable for the management and direction of their ministries and have the authority to make policy choices and to set priorities. These two seemingly conflicting propositions have been reconciled by according the Minister considerable leeway in determining how long any kind of application will take to process, based on his policy choices. Thus, if the Minister has determined that Canada’s immigration goals are best attained by processing spousal sponsorships in 4 years on average, it is not for the Court to say that it believes the Minister could, or should, process those applications in 2 years. It is for the Minister, and not the Court, to run the department. 41 It is for this reason that projected processing times emanating from the Minister and the department are accorded so much weight. The Min- ister is not only best placed to know how long an application will likely 330 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

take to process, but he has also been granted the authority by Parliament to set those processing times in a way that balances the various objectives of the IRPA. However, once an application has been delayed past those processing times, without a satisfactory justification, the Court is authorized to intervene and compel the Minister to perform his duty. This approach is consistent with the principle that the Minister is accountable to Parliament for his policy choices, and those choices are not to be gain- said by the courts: Li v. Canada (Minister of Citizenship & Immigration), 2011 FCA 110 (F.C.A.). Thus, deference is accorded to the Minister in setting policies, but the limit of that deference is his legal duty under the IRPA. 42 Section 87.3 has not altered this landscape. Rather, it confirms that the Minister has authority to set policies regarding processing that will best attain the government’s goals, and it has created a tool for the Min- ister to use to exercise that authority: the Ministerial Instructions. If the Minister establishes an order of processing for certain applications through Ministerial Instructions, those instructions, like any other policy from the Minister, will inform the determination of how long the process normally requires. 43 However, section 87.3 does not eliminate the Minister’s duty to process applications in a reasonably timely manner, at least those applications that are accepted for processing. There is no language in section 87.3 or any other amendment to the Act that extinguishes the longstand- ing, well-accepted duty to process applications in a reasonable time frame. The Minister can set instructions that permit him to return some applications without processing them at all, and thus obviously there is no further duty in respect of those applications. However, for those that are determined eligible for processing, the duty to do so in a reasonably timely manner remains, absent clear legislative language extinguishing that duty. The Ministerial Instructions inform the assessment of whether that duty is discharged in a reasonable period of time. 44 Thus, the most principled way to approach the analysis of unreasonable delay, in light of section 87.3 and the Ministerial Instructions, is to situate the question of the length the nature of the process in the full context of the immigration scheme. The Ministerial Instructions that apply to the application at issue are highly relevant in determining how long the process will require for that application. Also relevant are any statements by the Minister or his delegates regarding the projected processing time for that application. If, in light of this evidence, the ap- Liang v. Canada (MCI) Donald J. Rennie J. 331

plication is still reasonably within the timeframe set out by the Minister, then mandamus will not issue. If, however, the application has been delayed past the projected timeline, then the Minister must present some justification for the delay. 45 This conclusion does not prevent the Minister from making policy choices that affect the processing time of applications. The Minister is free to set policies that may delay certain applications, so long as that delay arising from, or incidental to, that policy choice remains reasonable. To hold otherwise would in essence absolve the Minister of his obligation to process any application in a reasonably timely manner, an obligation which he retains under the law.

Application of the above principles to the Liang Application (Pre- C50) 46 As discussed above, Mr. Liang’s application has been outstanding since 2007, and he has awaited finalization since his positive selection decision in 2010. This is prima facie longer than the nature of the process requires. The Ministerial Instructions cannot justify the delay, as they are inapplicable to his and other pre-C50 applications. There is no indication that Mr. Liang is himself responsible for any part of the delay. 47 Furthermore, I am not persuaded by the Minister’s argument that Mr. Liang had an adequate alternative remedy. The Minister argues that Mr. Liang could have applied under MI1 and therefore had his application processed more quickly. The Minister notes that an applicant could have had two concurrent applications, his existing pre-C50 application and a subsequent MI1 application. 48 The Minister’s argument is unsupported by the evidence. The Opera- tional Policy directive prevailing at the time indicates that the Depart- ment did not know which route would in fact be faster. Submitting a new FSW application under the MI1 instructions may have been an alternative open to Mr. Liang, but it would not have been adequate. 49 I therefore find that Mr. Liang is entitled to an order of mandamus. With respect to the 670 other pre-C50 applicants, the Court has no evidence before it with respect to the factors unique to each particular application which may account for the delay. Part or all of the delay may be attributable to the conduct of the applicant or a third party over whom the government had no control. Thus, each case must be determined on a case-by-case basis, and with the exception of Mr. Liang, I make no finding save that in respect of the remaining pre-C50 applicants, a prima fa- 332 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

cie case of delay has been established and the Ministerial Instructions, in light of section 120 of the Budget Implementation Act, 2008, above, do not constitute a satisfactory justification for that delay.

Ms. Gurung’s application (MI1) 50 I find that it is not necessary to apply the above framework to Ms. Gurung’s application, because she has individual circumstances that would make the granting of mandamus of no practical value or effect. Ms. Gurung was sent a letter informing her that she may be inadmissible for misrepresentation, due to the issues regarding her language test results. She was given an opportunity to respond to this issue, and based on her response, her application may be refused or may continue to be processed. Either way, the evidence before the Court is that her application is currently being actively processed and there is thus no purpose to be served by an order for mandamus. 51 The same obviously cannot be said for all the MI1 applicants. As with the pre-C50 applicants, each case will turn on its own individual facts. In light of the fact that this is a representative case, and that the parties evi- dently expect some guidance on how to address the remaining MI1 applications, the Court makes the following findings: the Minister established a policy pursuant to the MI1 whereby those applications would be priori- tized and would be processed within 6-12 months, and therefore the delay (ranging from 24-52 months) has prima facie been longer than that which might reasonably be expected to arise. 52 Furthermore, the Minister’s authority to set policy is not, in these circumstances itself a satisfactory justification for the delay — as already discussed, to accept that proposition would amount to accepting that the Minister no longer has any duty to process the MI1 applications in a reasonably timely manner. Finally, and conclusively, MI2 expressly provides that the MI1 applications “...shall continue to be considered for processing having regard to the first set of Ministerial Instructions.” Thus the scope of the Minister’s authority to set priorities does not arise in this case. The Minister set priorities, both in relation to the C-50 and MI1 applications, and it is against the priorities established by the Minister that the question of delay was assessed. Liang v. Canada (MCI) Donald J. Rennie J. 333

Do the applicants have a legitimate expectation that their applications would be processed on a first-in, first-out basis? 53 The applicants argue that they have a legitimate expectation to have their applications processed on a first-in/first-out (FIFO) basis. The Min- ister submits that there is nothing in the IRPA or case law to support a requirement of FIFO processing as a matter of procedural fairness. I agree. The doctrine of legitimate expectation is intended to ensure that if a decision-maker makes representations that a certain procedure will be followed, it is in fact followed. This does not, in my view, include the order in which applications are processed, and the applicants have not presented any evidence or argument to persuade me otherwise. 54 As a practical matter, an obligation to assess FSW applications on a FIFO basis would be unworkable. As indicated in the evidence of J. Mc- Namee, applications proceed at different speeds depending, in part, on the workload pressures at each visa post, but also for reasons over which the applicant and not the government has control. If FIFO processing were required, many questions would arise. Would priority be assessed by country of origin, type of occupation, or receipt at the Central Intake Office? Would applications that are completed diligently by the applicant have to await processing while problems with other incomplete applications are resolved, because they were submitted first? Imposing a strict FIFO requirement on a complex system such as this would undoubtedly result in further delay and confusion in an already over-burdened process. 55 The applicants also argue that they have a legitimate expectation to have their applications processed based on the selection criteria in place when their applications were submitted. The applicants appear to want the Court to pre-emptively prevent the Minister to decide in the future to change the substantive basis on which the applications will be considered. However, there is absolutely no evidence that the Minister will begin applying the new criteria retrospectively. On the contrary, the Min- ister has made it clear that all applications are to be processed in accordance with the criteria in place at the time the applications were submitted. Thus, there is no evidentiary foundation on which this argument can be based.

Costs 56 Rule 22 of the Federal Courts Immigration and Refugee Protection Rules, SOR/93-22 provides that, save the existence of special reasons, no 334 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

costs should be awarded in an application for judicial review arising under the IRPA. While there is some precedent for an award of costs if the Minister has been found to have unreasonably delayed processing an applicant’s application (Shapovalov v. Canada (Minister of Citizenship & Immigration), 2005 FC 753 (F.C.)), I do not find a cost award to be justified in this case. 57 I note that the mere finding that mandamus is warranted is, in and of itself, insufficient to award costs: Subaharan v. Canada (Minister of Citizenship & Immigration), 2008 FC 1228 (F.C.). Similarly, the importance of the issue at bar is not, in and of itself, a special reason: Toussaint v. Canada (Minister of Citizenship & Immigration), 2011 FCA 208 (F.C.A.). 58 I also note that there were additional affidavits and interrogatories in this case. Although those are steps contemplated by the Rules, little of the information sought by the applicants was of any relevance to the disposition of this application, a point evinced by the fact that the Court was not directed to much of the evidence. Furthermore, the applicants adduced many arguments that were of little assistance to the Court in these applications, and which required the respondent to expend resources to address them. In light of all these considerations, I find that special reasons to award costs do not exist in this case.

Certified Question 59 Two questions were proposed for certification: 1. Having regard to the IRPA, and in particular the objectives at sections 3(1)(a), 3(1)(c) and 3(1)(f), can the Minister prioritize applications within the Federal Skilled Worker category? 2. Does the Federal Court have the jurisdiction to backdate its Judg- ment and Reasons in order to circumvent the effect of validly-enacted legislation? 60 I decline to certify either question. Question 1, is overly broad and lacking in context. The question is not whether the Minister can set priorities, either under his general responsibility for the management and direction of the department or under specific authority of s. 87(3). As a matter of law, that is clear. What was in issue was whether, having set priorities, and clearly indicated how they would be applied, the delays were reasonable. Liang v. Canada (MCI) Donald J. Rennie J. 335

61 Thus, the proposed question is not grounded in the legal issues in these applications, and is not and could not be determinative of them. 62 Question 2 was proposed in response to a request by the applicants that the Court issue its decision nunc pro tunc. The Court’s authority to do so is not in doubt. Here, however, no such order is warranted or being made. The proposed question is thus academic. It is also vague and otherwise unacceptable for certification, assuming as it does, an unproven intention to negate the effect of an undefined legislative provision. Order accordingly. 336 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

[Indexed as: United States v. Adam] In the Matter of the Extradition Act, S.C. 1999, C. 18, as Amended The Attorney General of Canada on behalf of the United States of America v. Acram Adam British Columbia Supreme Court Docket: Vancouver 25585 2012 BCSC 969 H. Holmes J. Heard: December 8-9, 2011; May 2, 2012 Judgment: July 3, 2012 Criminal law –––– Narcotic and drug control — Miscellaneous –––– United States sought order committing accused into custody for extradition to U.S., to be prosecuted there for conspiring to export ecstasy pills from Canada to U.S. and to distribute them in U.S. — Accused brought application for stay of proceedings — Application dismissed — Accused had not established abuse of process — Cooperating witness did in fact meet under Drug Enforcement Agency (“DEA”) surveillance with person who appeared to have been load driver — Furthermore, special agent RT, who was one of undercover DEA agents who provided one kilogram sample of cocaine to HT earlier that day, was expected to testify that HT then indicated that ecstasy tablets would arrive later that evening, as they did — These and other circumstances set out in record of case provided sufficient evidence for committal. Immigration and citizenship –––– Exclusion and removal — Removal from Canada — Removal orders — Stay of execution –––– United States sought order committing accused into custody for extradition to U.S., to be prosecuted there for conspiring to export ecstasy pills from Canada to U.S. and to distribute them in U.S. — Accused brought application for stay of proceedings — Appli- cation dismissed — Accused had not established abuse of process — Cooperat- ing witness did in fact meet under Drug Enforcement Agency (“DEA”) surveillance with person who appeared to have been load driver — Furthermore, special agent RT, who was one of undercover DEA agents who provided one kilogram sample of cocaine to HT earlier that day, was expected to testify that HT then indicated that ecstasy tablets would arrive later that evening, as they did — These and other circumstances set out in record of case provided sufficient evidence for committal. United States v. Adam 337

Cases considered by H. Holmes J.: Canada (Minister of Justice) v. Fischbacher (2009), 198 C.R.R. (2d) 168, 69 C.R. (6th) 21, [2009] 3 S.C.R. 170, 255 O.A.C. 288, 2009 SCC 46, 2009 CarswellOnt 6153, 2009 CarswellOnt 6154, (sub nom. Fischbacher v. Canada (Minister of Justice)) 248 C.C.C. (3d) 419, 394 N.R. 139, 312 D.L.R. (4th) 1, [2009] S.C.J. No. 46, [2009] A.C.S. No. 46 (S.C.C.) — referred to Dhanda v. United States (2010), 286 B.C.A.C. 112, 484 W.A.C. 112, 2010 BCCA 200, 2010 CarswellBC 1275, (sub nom. United States of America v. Dhanda) 255 C.C.C. (3d) 274 (B.C. C.A.) — referred to United Kingdom of Great Britain & Northern Ireland v. Tarantino (2003), 177 C.C.C. (3d) 284, 109 C.R.R. (2d) 113, 2003 CarswellBC 1787, 2003 BCSC 1134, [2003] B.C.J. No. 1696 (B.C. S.C.) — referred to United States v. Asiegbu (2008), 2008 CarswellBC 2724, 2008 BCCA 519, (sub nom. United States of America v. Asiegbu) 443 W.A.C. 152, (sub nom. United States of America v. Asiegbu) 263 B.C.A.C. 152, (sub nom. United States of America v. Asiegbu) 243 C.C.C. (3d) 88, [2008] B.C.J. No. 2437 (B.C. C.A.) — followed United States v. Cobb (2001), 152 C.C.C. (3d) 270, 197 D.L.R. (4th) 46, 145 O.A.C. 3, 267 N.R. 203, [2001] 1 S.C.R. 587, 81 C.R.R. (2d) 226, 2001 SCC 19, 2001 CarswellOnt 964, 2001 CarswellOnt 965, 41 C.R. (5th) 81, [2001] S.C.J. No. 20, REJB 2001-23417 (S.C.C.) — referred to United States v. Dhanda (February 19, 2009), Doc. Vancouver 24028 (B.C. S.C.) — followed United States v. Dynar (1997), (sub nom. United States of America v. Dynar) 44 C.R.R. (2d) 189, (sub nom. United States of America v. Dynar) 33 O.R. (3d) 478 (headnote only), (sub nom. United States of America v. Dynar) [1997] 2 S.C.R. 462, 8 C.R. (5th) 79, (sub nom. United States of America v. Dynar) 213 N.R. 321, (sub nom. United States of America v. Dynar) 115 C.C.C. (3d) 481, (sub nom. United States of America v. Dynar) 147 D.L.R. (4th) 399, 1997 CarswellOnt 1981, 1997 CarswellOnt 1982, (sub nom. United States of America v. Dynar) 101 O.A.C. 321, [1997] S.C.J. No. 64 (S.C.C.) — referred to United States v. Ferras (2006), 268 D.L.R. (4th) 1, 209 C.C.C. (3d) 353, [2006] 2 S.C.R. 77, 2006 SCC 33, 2006 CarswellOnt 4450, 2006 CarswellOnt 4451, 39 C.R. (6th) 207, 351 N.R. 1, 214 O.A.C. 326, 143 C.R.R. (2d) 140, [2006] S.C.J. No. 33 (S.C.C.) — referred to United States v. Graham (2007), 2007 CarswellBC 1462, 2007 BCCA 345, 401 W.A.C. 248, 222 C.C.C. (3d) 1, 243 B.C.A.C. 248, [2007] B.C.J. No. 1390 (B.C. C.A.) — considered United States v. Haugen (2010), 208 C.R.R. (2d) 86, 2010 CarswellBC 93, 2010 BCSC 56 (B.C. S.C.) — considered 338 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

United States v. Kwok (2001), 152 C.C.C. (3d) 225, 197 D.L.R. (4th) 1, 145 O.A.C. 36, 267 N.R. 310, [2001] 1 S.C.R. 532, 81 C.R.R. (2d) 189, 2001 SCC 18, 2001 CarswellOnt 966, 2001 CarswellOnt 967, 41 C.R. (5th) 44, [2001] S.C.J. No. 19, REJB 2001-23416 (S.C.C.) — referred to United States v. Pal (2009), 2009 BCSC 1930, 2009 CarswellBC 3904, [2009] B.C.J. No. 2885 (B.C. S.C.) — considered United States v. Prudenza (2007), 2007 ONCA 84, (sub nom. United States v. Anderson) 218 C.C.C. (3d) 225, 219 O.A.C. 369, 2007 CarswellOnt 638, (sub nom. United States of America v. Anderson) 153 C.R.R. (2d) 20, (sub nom. United States of America v. Anderson) 85 O.R. (3d) 380, [2007] O.J. No. 449 (Ont. C.A.) — considered United States v. Shephard (1976), [1977] 2 S.C.R. 1067, 34 C.R.N.S. 207, 9 N.R. 215, (sub nom. United States of America v. Sheppard) 30 C.C.C. (2d) 424, (sub nom. United States of America v. Sheppard) 70 D.L.R. (3d) 136, 1976 CarswellNat 1, 1976 CarswellNat 433F, [1976] S.C.J. No. 106 (S.C.C.) — considered United States v. Tollman (2006), 2006 CarswellOnt 5545, 212 C.C.C. (3d) 511, 144 C.R.R. (2d) 1, 271 D.L.R. (4th) 578, [2006] O.J. No. 3672 (Ont. S.C.J.) — referred to Statutes considered: Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 Generally — referred to s. 7 — referred to s. 12 — referred to Controlled Drugs and Substances Act, S.C. 1996, c. 19 Sched. III — referred to Extradition Act, S.C. 1999, c. 18 s. 29(1)(a) — considered s. 43 — considered s. 44 — referred to s. 44(1)(a) — considered s. 57 — referred to Immigration and Refugee Protection Act, S.C. 2001, c. 27 Generally — referred to

APPLICATION by accused for stay of proceedings.

Keitha J. Elvin-Jensen, for Crown Karen A. Bastow, for Mr. Adam United States v. Adam H. Holmes J. 339

H. Holmes J.: Introduction 1 The U.S.A. seeks an order committing Acram Adam into custody for extradition to the U.S.A., to be prosecuted there for conspiring to export MDMA (ecstasy) pills from Canada to the U.S., and to distribute them in the U.S. The offence to be prosecuted corresponds to the Canadian offence of conspiracy to traffic in a Schedule III controlled substance, contrary to the Controlled Drugs and Substances Act. 2 The evidence and submissions give rise to the following issues: 1. whether an order of committal would perpetrate an abuse of process and would violate Mr. Adam’s rights under ss. 7 and 12 of the Charter, because of its consequences for his immigration status in Canada and its potential to result in his deportation to the Sudan; 2. whether the Record of the Case establishes that Mr. Adam is the person named in it, and the person who engaged in the alleged conduct; and 3. whether the admissible evidence is sufficient to justify committal. 3 Before addressing these issues in turn, I will briefly describe the Re- cord of the Case for the Prosecution, which describes the evidence on which the U.S. authorities expect to rely.

The Record of the Case 4 In brief overview, the prosecution would revolve around the evidence of a “cooperating witness”, or “CW” as abbreviated, who is said to have known Mr. Adam for several years and to have facilitated several narcotics transactions with him in 2008. This person was working in conjunc- tion with the U.S. government in May 2008, when, the CW is expected to testify, Mr. Adam agreed to deliver to him approximately 180,000 MDMA pills in exchange for 18 kilograms of cocaine. 5 In a monitored and recorded telephone call on May 20, 2008, Mr. Adam is said to have agreed to send a person to San Francisco to help facilitate that transaction. Late in the evening that same day, a person (“HT”) telephoned the CW to say that he and another person had arrived at the airport, and the CW picked them up and took them to a hotel in San Mateo, California. 6 In a meeting the next day with the CW and HT and his companion, two undercover Drug Enforcement Agency (“DEA”) agents produced a 340 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

sample of one kilogram of cocaine for HT to test. HT is said to have been satisfied with the sample, and then to have demonstrated, with an “X”, how he wanted the other 17 kilograms marked. Mr. Adam is said to have previously told the CW that his cousin would “put an ‘X’ on our stuff so we know where it is when he comes down here”. 7 The CW spoke later that day with Mr. Adam about the “load driver” with whom the CW was to meet that evening to obtain the MDMA pills. 8 Near the end of the evening, and while under surveillance by the DEA, the CW met in a Tower Records parking lot with HT and another person, AM, the latter of whom opened his car trunk and showed the CW two suitcases. The CW examined the contents, understanding them to be MDMA pills, and shortly afterwards directed HT and AM back to HT’s hotel, while, he told them, he went to retrieve the cocaine. En route to HT’s hotel, HT and AM were pulled over for erratically changing lanes, and the two suitcases were found in the trunk. The suitcases contained approximately 149,000 MDMA or ecstasy pills. 9 Mr. Adam is said to have telephoned the CW during the transaction in the Tower Records parking lot, and also several times in a frantic state after HT’s and AM’s arrest. In a monitored and recorded call on May 23, 2008, the CW and Mr. Adam discussed HT’s arrest.

1. Should The Court Stay the Proceedings as an Abuse of Process? 10 Mr. Adam submits that committal for extradition would perpetrate an abuse of process and would violate his rights under ss. 7 and 12 of the Charter, because extradition will likely cause Mr. Adam to lose his status as a permanent resident in Canada, without recourse to the protections of the Immigration and Refugee Protection Act and in violation of Canada’s international commitments. He submits that because he is not a Canadian citizen, if he is convicted of the U.S. charges and is sentenced to more than five years’ imprisonment, as he likely would be, he will lose his permanent resident status in Canada, his home since the age of six. He submits that without that status, and with no status in the U.S., he would be at high risk of deportation to the Sudan, his country of origin, which has been in a state of civil war since 1956 and is plagued by war, atrocities, and genocide. 11 Mr. Adam submits that a committal order would endorse the abusive effect of Canada’s refusal or failure to charge Mr. Adam in Canada and allow him to plead guilty, so as to serve a sentence in Canada and main- United States v. Adam H. Holmes J. 341

tain his permanent resident status here. He asks the court to stay the proceedings in this extradition. 12 Ms. Bastow made extensive submissions, which I will not repeat, supplemented by materials concerning the Sudan’s recent history and international status. It was unclear to what extent the Court was asked to rely on the content of those materials; however, the requesting state took no formal objection to them, and for the reasons below it is unnecessary to determine matters relating to the Sudan and to the potential consequences of a committal order for Mr. Adam’s immigration status in Can- ada and the U.S.A. Ms. Bastow candidly acknowledged that the latter cannot be fully known, and that various statutory or judicial review ave- nues for relief may be available along the way, both in Canada and in the U.S. However, she submitted that the overriding general effect of extradition would be to remove, for Mr. Adam, the protections of the Immi- gration and Refugee Act, which otherwise would likely prevent his removal to the Sudan. 13 The function of this extradition hearing is to determine whether the domestic component of the double criminality requirement is met: Canada (Minister of Justice) v. Fischbacher, 2009 SCC 46, [2009] 3 S.C.R. 170 (S.C.C.) at para. 35. Following an order of committal, the matter reverts to the Minister, who must review the case in its entirety and must refuse extradition if the surrender of the person sought would be unjust or oppressive. Section 44(1)(a) of the Extradition Act expressly requires the Minister to do so: 44. (1) The Minister shall refuse to make a surrender order if the Minister is satisfied that (a) the surrender would be unjust or oppressive having regard to all the relevant circumstances; ... 14 A court at the committal stage may grant Charter relief, but only in relation to matters relevant at that stage: United States v. Kwok, 2001 SCC 18, [2001] 1 S.C.R. 532 (S.C.C.) at paras. 5 and 57. It is for the Minister to consider whether surrender of the person sought would occasion a breach of his Charter rights for other reasons: United States v. Haugen, 2010 BCSC 56 (B.C. S.C.). In Haugen, Romilly J. usefully described the scope of the committal judge’s jurisdiction in this area, and its relationship to the Minister’s role, at paras. 18-22: 18. Pursuant to s. 25, the extradition judge is competent to grant Charter remedies, including a stay of proceedings, on the basis of Charter violations, but only insofar as the violations pertain directly 342 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

to the circumscribed issues relevant at the committal stage of the extradition process: United States of America v. Cobb, 2001 SCC 19, 152 C.C.C. (3d) 270; and United States of America v. Bonamie, 2001 ABCA 267, [2002] 1 W.W.R. 247 at para. 12. The judiciary has only a limited, prescribed role in the extradition process since extradition is primarily a discretionary matter vested in the executive: United States of America v. D’Agostino, [1997] O.J. No. 334at para. 32 (S.C.J.). As such, extradition judges should not pre-empt the executive with respect to those issues falling within the purview of the Minister’s jurisdiction under the Extradition Act: United States of America v. Kwok, 2001 SCC 18, 197 D.L.R. (4th) 1 at para. 85. 19. In examining the extent of an extradition judge’s jurisdiction, it is important to recognize that there are substantive and procedural safeguards in the extradition process that arise after the committal hearing. Until such safeguards have been exercised or exhausted, it is speculative to assume that a fugitive will be surrendered and that breaches of his Charter rights will be thereby occasioned: United States of America v. Vreeland (2002), 164 C.C.C. (3d) 266 (Ont. S.C.J.). ... 21. Nevertheless, an extradition judge has jurisdiction to stay proceedings under s. 25 of the Extradition Act where the conduct of the extradition proceedings produces unfairness which reaches the level of a breach of s. 7 or an abuse of process: R. v. Larosa (2002), 166 C.C.C. (3d) 449 (Ont. C.A.) citing Kwok. 22. The extradition judge does not, however, have “plenary and exclusive” Charter jurisdiction to rule at large on constitutional issues. In Kwok, Arbour J. states at para. 5: However, s. 9(3) [now s. 25 of the Extradition Act] did not give plenary and exclusive Charter jurisdiction to the extradition judge. The Minister of Justice retains jurisdiction on matters related to surrender, and must comply with the Charter on all matters incidental to surrendering a fugitive. The Minister’s decision is subject to judicial review by the court of appeal. Thus, although the extradition judge can now grant a Charter remedy, he or she can only do so on matters relevant at the committal stage. Similarly, Arbour J. states at para. 44: As the habeas corpus judge formerly could, the extradition judge can now grant appropriate Charter remedies on matters relevant to the committal stage, provided that he or she does not usurp the Minister’s function. United States v. Adam H. Holmes J. 343

15 In light of the Court’s limited role at this stage, and the larger, up- coming role of the Minister to consider whether extradition would be unjust or oppressive, I agree with the requesting state that Mr. Adam’s application on this basis is premature and asks the court to pre-empt the role of the Minister under s. 44 of the Act. 16 Furthermore, Mr. Adam does not allege the types of highly abusive conduct on the part of the requesting state that have supported Charter relief in some of the case authorities: see, for example, United States v. Cobb, 2001 SCC 19, [2001] 1 S.C.R. 587 (S.C.C.); United States v. Toll- man (2006), 271 D.L.R. (4th) 578, 212 C.C.C. (3d) 511 (Ont. S.C.J.); and United Kingdom of Great Britain & Northern Ireland v. Tarantino, 2003 BCSC 1134 (B.C. S.C.). 17 Mr. Adam notes instead that the Minister initiated these proceedings by issuing the Authority to Proceed on a flawed understanding of a key fact. The Record of the Case describes Mr. Adam as a Canadian citizen. It was not until Cst. Heather Lew arrested Mr. Adam, and Mr. Adam produced a permanent resident’s card, that it came to light that he was not a Canadian citizen. Mr. Adam submits that in issuing the Authority to Proceed the Minister therefore cannot have appreciated or considered the potential consequences, and the likelihood of Mr. Adam’s eventual deportation to the Sudan. 18 However, Mr. Adam’s status in Canada is properly a matter for the Minister’s consideration at the next stage of the extradition process. If this court makes an order for committal, s. 43 of the Extradition Act af- fords Mr. Adam an opportunity to make submissions to the Minister. Further, the Minister’s decision will be subject to judicial review in the Court of Appeal: s. 57 Extradition Act. 19 For similar reasons, Mr. Adam’s submission that, instead of making a surrender order, Canada should charge him and allow him to plead guilty in Canada, is also properly made to the Minister at the next stage, and not by way of an application at this stage for relief based on an abuse of process.

2. Is Mr. Adam the Person Sought? 20 According to s. 29(1)(a) of the Extradition Act, a judge may make a committal order only if satisfied that the person before the court is the person sought by the requesting state: 29. (1) A judge shall order the committal of the person into custody to await surrender if 344 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

(a) in the case of a person sought for prosecution, there is evidence admissible under this Act of conduct that, had it occurred in Canada, would justify committal for trial in Canada on the offence set out in the authority to proceed and the judge is satisfied that the person is the person sought by the extradition partner ... [Emphasis added] 21 In United States v. Asiegbu, 2008 BCCA 519 (B.C. C.A.) at para. 24, Chiasson J.A. explained that this requirement has two aspects: 1. on a balance of probabilities is the person before the court the person named in the [Record of the Case]; 2. is there a prima facie case that the person before the court is the person who engaged in the alleged conduct that underlies the request for extradition? 22 In submitting that he is not the person sought, Mr. Adam relies on both aspects. His written submissions frame the matter as follows: 101. Adam submits he is not the person named in the [Authority to Proceed]. No fingerprints confirming his identity have been provided. There is no record of the CW’s entry in and out of Canada to meet Adam provided. There is no evidence that Adam left the county to meet with the CW provided. All of these documents are easy to obtain and the Court is entitled to draw an adverse inference from their absence: That Adam is not the person sought. 23 In my view, both aspects of the identification requirement are met. 24 In relation to the first aspect, numerous pieces of evidence identify the person before the Court as the person requested. Cst. Lew testified that on December 3, 2010, she arrested the person now before the Court who gave his name as Acram Adam and provided her with his permanent resident card. That card shows the name Acram Adam, and also the date of birth listed in the Record of the Case for the Acram Adam sought. Before Cst. Lew made the arrest, she viewed a photograph that she then used to identify the person she arrested. That same photograph forms part of the Record of the Case, and clearly depicts the person before the Court. 25 In relation to the second aspect, the Record of the Case indicates that the CW has viewed that same photograph, and has confirmed that it shows the person with whom he dealt in relation to the transaction in issue, as well as other narcotics transactions in 2008. The Record of the Case indicates that the CW has known Mr. Adam for several years, and United States v. Adam H. Holmes J. 345

has seen him in person and has spoken to him on the telephone on numerous occasions. 26 I am satisfied that the person before the Court is the Mr. Adam sought by the requesting state and alleged to have engaged in the conduct on which the request is based.

3. Is the Evidence Sufficient to Justify Committal? 27 This question engages the opening language of s. 29(1)(a) of the Ex- tradition Act: 29. (1) A judge shall order the committal of the person into custody to await surrender if (a) in the case of a person sought for prosecution, there is evidence admissible under this Act of conduct that, had it occurred in Canada, would justify committal for trial in Canada on the offence set out in the authority to proceed and the judge is satisfied that the person is the person sought by the extradition partner ... [Emphasis added] 28 The test for committal for trial in Canada asks, “whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty”: United States v. Shephard (1976), [1977] 2 S.C.R. 1067 (S.C.C.), at 1080. However, an extradition judge also has the discretion to refuse to commit for extradition where the evidence is insufficient, including where it is manifestly unreliable or where there is no evidence that the evidence is available for trial: United States v. Fer- ras, 2006 SCC 33, [2006] 2 S.C.R. 77 (S.C.C.) at para. 50. The extradition judge does not make an actual determination of reliability, but rather assesses threshold reliability, including whether the evidence possesses sufficient indicia of reliability to make it worth consideration: Ferras, at para. 53. 29 In United States v. Graham, 2007 BCCA 345 (B.C. C.A.) at para. 30, Donald J.A. disagreed with the conclusion of Doherty J.A. in United States v. Prudenza, 2007 ONCA 84 (Ont. C.A.) at para. 28, that a committal judge has no power to deny extradition in weak cases. Donald J.A. concluded instead that the governing principles in Ferras allow for a limited weighing of the evidence in a “holistic appraisal of the case”: 25. ... Rejecting unreliable or unavailable evidence is part of the picture but not the whole picture. The more important aspect of Ferras is in the discretion not to commit on an insufficient case. The “manifestly unreliable” component is just one example of what could lead 346 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

to a finding of insufficiency. I fear that the respondent’s argument uses an example to swallow the larger rule. 26. That there is more to Ferras than just rejecting “manifestly unreliable” evidence is apparent from the following passages suggesting reliability is part, not the whole, of the new approach: [41] ... For a person sought to receive a fair extradition hearing, the extradition judge must be able to evaluate the evidence, including its reliability, to determine whether the evidence establishes a sufficient case to commit. ... [43] As discussed above, admissible evidence alone cannot be sufficient to justify committal in the extradition context. Admissibility is only one part of determining whether evidence exists upon which a reasonable jury, properly instructed, could return a verdict of guilty. Justi- fying a committal depends on a combination of admissibility, double criminality, basic fairness and constitutional guarantees that, together, inform an extradition judge about whether to order committal. Most fundamentally, it depends on a judicial process conducted by a judge who has the discretion to refuse to commit the subject for extradition on insufficient evidence. 27. The focus is on sufficiency, where unreliability is offered as an illustration of what might lead to a discretionary refusal to commit: [quotation from Ferras at para. 50 omitted] 28. Contrary to what the respondent argues, a sufficient case is not made out by relevant and available evidence on each element of the offence. Sufficiency is presumed in the certification by the requesting state. However, this is the minimum requirement (Ferras at para. 38) to meet the test of double criminality. Ferras demands a judicial assessment beyond this: [46] Section 29(1)’s direction to an extradition judge to determine whether there is admissible evidence that would “justify committal” requires a judge to assess whether admissible evidence shows the justice or right- ness in committing a person for extradition. It is not enough for evidence to merely exist on each element of the crime. The evidence must be demonstrably able to be used by a reasonable, properly instructed jury to reach a verdict of guilty. If the evidence is incapable of demonstrating this sufficiency for committal, then it cannot “justify committal”. The evidence need not convince an extra- United States v. Adam H. Holmes J. 347

dition judge that a person sought is guilty of the alleged crimes. That assessment remains for the trial court in the foreign state. However, it must establish a case that could go to trial in Canada. This may require the extradition judge to engage in limited weighing of the evidence to determine, not ultimate guilt, but sufficiency of evidence for committal to trial. [Emphasis in Graham] 30 As to circumstantial evidence on which the Record of the Case relies, Martinson J. in United States v. Dhanda (February 19, 2009), Doc. Van- couver 24028 (B.C. S.C.), aff’d 2010 BCCA 200 (B.C. C.A.), summarized the principles regarding the drawing of inferences in extradition proceedings as follows: 25. The relevant legal principles can be summarized this way. First, as stated in Mr. Justice David Watt, Watt’s Manual of Criminal Evi- dence (Toronto: Carswell, 2005) at 108: An inference is a deduction of fact which may logically and reasonably be drawn from another fact or group of facts found, or otherwise established in the proceedings. It is a conclusion that may, not must be drawn in the circumstances. [Emphasis added by Martinson J.] 26. Further, a judge can engage in a limited weighing of circumstantial evidence to ensure that inferences from the evidence are reasonably supportable: Ferras; and Arcuri. The judge does not, however, draw inferences and does not assess credibility. The question is whether the evidence, if believed, could reasonably support an inference of guilt: Ferras; Arcuri; and United States of America v. Lorenz, 2007 BCCA 342, 222 C.C.C. (3d) 16. The mere weakness of evidence in support of committal is itself not enough to warrant the discharge of a person sought for extradition: Graham. 27. The principles can be summarized this way: An inference is a deduction of fact which may logically and reasonably be drawn from another fact or group of facts found or otherwise established in the proceedings. It is a conclusion that may, not must be drawn in the circumstances. [Emphasis added by Martinson J.] 28. If the circumstantial evidence is reasonably capable of supporting a number of inferences, and if one of those inferences supports guilt, 348 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

the person sought must be committed. The inferences need not be compelling or even easily drawn in order to be reasonable: R. v. Katwaru (2001), 52 O.R. (3d) 321 at paras. 39-41,153 C.C.C. (3d) 433 (C.A.). A reasonable inference does not have to be the most probable inference. The limited function of the extradition judge requires the judge to order committal if the evidence as a whole “creates a web of circumstances that, if unanswered, could lead a properly instructed jury, acting reasonably” to draw an inference of guilt: United States of America v. Turner (2002), 230 Nfld. & P.E.I.R. 152at para. 77, 682 A.P.R. 152. 31 Ross J. considered and applied the following summary of the law in United States v. Pal, 2009 BCSC 1930 (B.C. S.C.) at paras. 22-27. She noted that a properly instructed jury could not reasonably infer guilt from a body of circumstantial evidence which has serious deficiencies: 22. It is clear from Ferras that the extradition judge has the discretion to disregard evidence shown to be unreliable or unavailable and to consider the sufficiency of evidence in the sense of whether it is sufficient for a properly instructed jury acting reasonably to convict. In my view, in considering circumstantial evidence, the extradition judge is to weigh the evidence to assess whether it is reasonably capable of supporting the inferences the Crown seeks the trier of fact to draw. The extradition judge is not to draw inferences or make findings of credibility. The question is whether the evidence, if believed, could reasonably support an inference of guilt. 23. Mr. Justice Hall, with Madam Justice Levine concurring, stated in Graham (BCCA) at para. 41: ... Unreliability of evidence could arise for instance from serious deficiencies in a body of circumstantial evidence or from the opportunity for a witness to know or observe factual matters. ... 24. However, I do not understand that to be a statement of a test that is different in substance, since presumably a properly instructed jury acting reasonably could not in any event infer guilt from a body of circumstantial evidence with serious deficiencies. 25. Madam Justice Martinson considered this issue in United States v. Dhanda, (19 February 2009), Vancouver 24028 (S.C.) affirmed 2010 BCCA 200 [Dhanda], and concluded that the test with respect to the limited weighing of circumstantial evidence is as advanced by the applicant. United States v. Adam H. Holmes J. 349

26. In United States of America v. Welch, 2007 BCSC 1890, Madam Justice Bennett, sitting as the trial judge, as she was then, stated at para. 52: As noted, the [limited] weighing process is now slightly different since Ferras ... in that the judge can assess for manifest unreliability. ... 27. I agree with her conclusion in that regard. 32 Mr. Adam submits that the Record of the Case discloses no reliable evidence of the indicated offence of conspiracy, because in law that offence cannot have involved the CW, a police agent, and there is little and weak evidence of any conspiracy between Mr. Adam and HT and AM. 33 A police agent, as the CW was at all material times, cannot in law conspire with another, because he does not possess the requisite genuine intention to carry out the common design: United States v. Dynar, [1997] 2 S.C.R. 462 (S.C.C.) at para. 88. However, a police agent may provide evidence of a conspiracy involving others: Dynar, at para. 111. 34 Mr. Adam submits that the evidence is insufficient to establish a conspiracy involving the CW and HT and AM, because most of the telephone calls and meetings, which form the body of circumstantial evidence on which the requesting state relies, were unmonitored and unrecorded, and the CW is an inherently unreliable witness. Mr. Adam submits that one may reasonably infer from the background facts outlined in the Record of the Case that the CW’s cooperation with the authorities resulted from a plea arrangement. This, Mr. Adam submits, gives the CW a strong motive to implicate Mr. Adam and others and to minimize his own culpability. 35 Mr. Adam notes that there was but one monitored and recorded telephone call between him and the CW, and that telephone call related to an agreement for approximately 180,000 MDMA pills. He submits that since the quantity seized from HT and AM amounted to 149,000 pills, on its face the evidence suggests that the telephone agreement must relate to a different agreement or transaction from the agreement or transaction that involved the seized pills. 36 Mr. Adam referred also to an apparent conflict between statements in the Record of the Case concerning the basis for searching HT and AM’s vehicle, and Cst. Lew’s affidavit on that subject. However, since the affidavit purports only to summarize the Record of the Case, any conflict or deficiency relates only to the quality of Cst. Lew’s summary, and not to the substance of any information or evidence on which it is based. 350 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

37 In my view, the Record of the Case presents a body of circumstantial evidence from which a properly instructed jury could reasonably infer guilt. 38 The telephone calls between the CW and Mr. Adam in which they came to their agreement that Mr. Adam would deliver approximately 180,000 MDMA pills in exchange for 18 kilograms of cocaine were con- sensually monitored and recorded by the DEA. These calls began on May 1, 2008 and concluded on May 20, 2008, when Mr. Adam said he would send a person to San Francisco to help facilitate the transaction. 39 The next call to which the Record of the Case refers was not monitored or recorded. It was from HT to the CW, informing him that he was at the San Francisco airport with another person. The timing of that call, which the Record of the Case describes as “later that evening”, together with the circumstances that followed, provides some circumstantial evidence of association between HT’s arrival and the agreement that the CW and Mr. Adam had concluded shortly before. 40 A phone call and dealings in person between the CW and HT the next day (May 21, 2008), were monitored and recorded or observed by DEA surveillance officers or undercover agents. These were the dealings in which HT tested the one kilogram sample of cocaine provided by the DEA undercover agents, and indicated how he wanted “the other 17 kilograms” marked with an “X”. The total quantity of cocaine HT discussed, being 18 kilograms, corresponded exactly with the agreement Mr. Adam had made with the CW. The manner in which HT marked the cocaine and indicated he wanted the other kilograms marked, also corresponded with the description Mr. Adam had given the CW of how his cousin would do so. 41 It is true that a conversation later on May 21, 2008 between the CW and Mr. Adam, in which they are said to have discussed the “load” driver with whom the CW was to meet even later that evening to obtain the MDMA pills, was not monitored or recorded. However, the CW did in fact meet under DEA surveillance with a person who appears to have been a load driver. Furthermore, Special Agent Ryan Tack, who was one of the undercover DEA agents who provided the one kilogram sample of cocaine to HT earlier that day, is expected to testify that HT then indicated that the ecstasy tablets would arrive later that evening, as they did. 42 These and other circumstances set out in the Record of the Case provide sufficient evidence for committal. United States v. Adam H. Holmes J. 351

Conclusion 43 Mr. Adam has not established an abuse of process, and his application for a stay of proceedings is denied. 44 Under s. 29(1)(a) of the Act, Mr. Adam is to be committed into custody to await surrender to the requesting state, subject to the further procedures for which the Extradition Act provides. Application dismissed.