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

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

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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 Contact www.carswell.com/contact Almrei v. Canada (Attorney General) 175

[Indexed as: Almrei v. Canada (Attorney General)] Hassan Almrei, Plaintiff (Appellant) and The Attorney General of Canada, Defendant (Respondent) Ontario Court of Appeal Docket: CA C53707 2012 ONCA 779 W. Winkler C.J.O., H.S. LaForme J.A., J.D. Cunningham A.C.J.S.C. (ad hoc) Heard: September 11, 2012 Judgment: November 15, 2012 Immigration and citizenship –––– Exclusion and removal — Removal from Canada — Security certificates — General principles –––– Ministers of Pub- lic Safety and Emergency Preparedness and of Citizenship and Immigration issued security certificate against appellant — After multiple detention reviews, deportation proceedings and constitutional challenges, security certificate review process was amended — Ministers signed second certificate in 2008 against appellant — On referral to Federal Court, review judge found that second certificate was not reasonable and released appellant unconditionally — Appellant brought action against defendants, including federal Crown, for various torts and breaches of ss. 7, 9, and 12 of Canadian Charter of Rights and Freedoms — Appellant brought motion for summary judgment against Crown — Motion was dismissed — Appellant appealed — Appeal quashed for want of jurisdiction — Fact that appellant was no longer appealing order dismissing motion for partial summary judgment under R. 20 of Rules of Civil Procedure fundamentally al- tered nature of appeal and therefore jurisdiction of court to hear matter — Hence, panel was now in different position than was panel that decided motion to quash — Appellant’s decision to focus solely on motion judge’s findings with respect to applicability of issue estoppel meant, in effect, that he now wished to appeal only portion of reasons. Civil practice and procedure –––– Judgments and orders — Res judicata and issue estoppel — Issue estoppel — General principles –––– Ministers of Public Safety and Emergency Preparedness and of Citizenship and Immigration issued security certificate against appellant — After multiple detention reviews, deportation proceedings and constitutional challenges, security certificate review process was amended — Ministers signed second certificate in 2008 against appellant — On referral to Federal Court, review judge found that second certificate was not reasonable and released appellant unconditionally — Appellant brought action against defendants, including federal Crown, for various torts and breaches of ss. 7, 9, and 12 of Canadian Charter of Rights and Freedoms — 176 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

Appellant brought motion for summary judgment against Crown — Motion was dismissed — Appellant appealed — Appeal quashed for want of jurisdiction — Fact that appellant was no longer appealing order dismissing motion for partial summary judgment under R. 20 of Rules of Civil Procedure fundamentally al- tered nature of appeal and therefore jurisdiction of court to hear matter — Hence, panel was now in different position than was panel that decided motion to quash — Appellant’s decision to focus solely on motion judge’s findings with respect to applicability of issue estoppel meant, in effect, that he now wished to appeal only portion of reasons. Cases considered: Almrei, Re (2009), 2009 CF 1263, 2009 CarswellNat 4286, 2009 FC 1263, [2011] 1 F.C.R. 163, 355 F.T.R. 222 (Eng.), 2009 CarswellNat 5657, 86 Imm. L.R. (3d) 212, [2009] F.C.J. No. 1579, [2009] A.C.F. No. 1579 (F.C.) — referred to Almrei v. Canada (Attorney General) (2011), 2011 CarswellOnt 15010, 2011 ONCA 779, 345 D.L.R. (4th) 475, 5 Imm. L.R. (4th) 348, 20 C.P.C. (7th) 229 (Ont. C.A.) — referred to Grand River Enterprises v. Burnham (2005), 2005 CarswellOnt 948, (sub nom. Grand River Enterprises, A Partnership v. Burnham) 197 O.A.C. 168, 10 C.P.C. (6th) 136, [2005] O.J. No. 952 (Ont. C.A.) — referred to Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Generally — referred to Rules considered: Rules of Civil Procedure, R.R.O. 1990, Reg. 194 R. 20.05(1) — considered R. 48.14 — referred to

APPEAL by appellant from judgment reported at Almrei v. Canada (Attorney General) (2011), 2011 CarswellOnt 2591, 2011 ONSC 1719, 99 Imm. L.R. (3d) 82, 233 C.R.R. (2d) 217, [2011] O.J. No. 1764 (Ont. S.C.J.), which dismissed motion for summary judgment against Crown.

David Baker, Lorne Waldman, for Appellant Paul J. Evraire, Marianne Zoric, for Respondent

Per curiam:

1 While this decision was under consideration, this court was advised that subsequent to the hearing of this appeal on September 11, 2012, the Registrar of the Superior Court of Justice notified the parties that Mr. Almrei v. Canada (Attorney General) Per curiam 177

Almrei’s underlying action was dismissed for delay under rule 48.14 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Without considering or deciding whether the appeal may be moot as a result, these are our reasons with respect to this appeal. 2 The appellant brought an action for damages arising out of the conduct of state actors in relation to two security certificates issued against him under the Immigration and Refugee Protection Act, S.C. 2001, c. 27. In a review of the second of these certificates, Mosley J. of the Federal Court had found the certificate to be unreasonable and quashed it. In the course of his lengthy public reasons, reported at 2009 FC 1263, [2011] 1 F.C.R. 163 (F.C.), Mosley J. made numerous findings of facts. 3 The appellant moved for partial summary judgment before Lederman J. of the Superior Court of Justice on the basis of issue estoppel. He sought to invoke issue estoppel in order to have the factual findings made by Mosley J. in the security certificate proceeding bind the parties in the civil action. He argued that these findings satisfy all or most of the elements of the causes of action. In the alternative, the appellant requested an order under rule 20.05(1), also based on the application of issue estoppel, specifying those material facts not in dispute and defining the issues to be tried. 4 Lederman J. dismissed the motion for summary judgment on the basis that the test for issue estoppel was not met. With respect to the relief under rule 20.05(1), Lederman J. found that it was premature to consider directions pursuant to that provision given that the action was only at the pleadings stage and no evidence other than the findings of Mosley J. was put before the court. This appeal was brought from the order dismissing the appellant’s motion for partial summary judgment against the respondent. 5 The respondent brought a motion to quash this appeal on the basis that the order below was not final and that, therefore, this court did not have jurisdiction to hear the appeal. The respondent argued that it was still open to the appellant to prove his case by calling evidence at his trial. 6 A panel of this court dismissed the motion to quash on December 13, 2011: Almrei v. Canada (Attorney General), 2011 ONCA 779 (Ont. C.A.). The panel noted, at para. 1, that a decision dismissing a motion for full or partial summary judgment will be interlocutory in many circumstances because the merits of the claim remain to be tried. However, the panel held, at para. 7, that the order in this case is final because: “[t]he 178 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

decision of the motion judge has arguably deprived the appellant of a substantive right that could have been entirely determinative of the Attor- ney General’s liability” (emphasis added). 7 In oral argument on September 11, 2012, appellant’s counsel indicated for the first time that he is only seeking to appeal from the motion judge’s conclusion that issue estoppel does not apply. He is no longer taking the position that the findings of fact in the Federal Court proceeding could be entirely determinative of the Attorney General’s liability in the present action. He advised the court that he is no longer appealing the correctness of the order dismissing the motion for partial summary judgment. 8 The panel was concerned that this created a jurisdictional problem, since the result of the order below is no longer in dispute. After some questioning, the court adjourned the appeal in order to consider this problem. At counsel’s request, the court allowed the parties to make further written submissions on this point alone, which have now been considered. 9 In our view, the fact that the appellant is no longer appealing the order dismissing the motion for partial summary judgment under Rule 20, fundamentally alters the nature of the appeal and therefore the jurisdiction of this court to hear the matter. Hence, this panel is now in a different position than was the panel that decided the motion to quash. The appellant’s decision to focus solely on the motion judge’s findings with respect to the applicability of issue estoppel means, in effect, that he now wishes to appeal only a portion of the reasons. 10 An appeal lies from an order and not from the reasons of the court below: Grand River Enterprises v. Burnham (2005), 10 C.P.C. (6th) 136 (Ont. C.A.), at para. 10. Because the appellant’s only ground of appeal is that issue estoppel should apply, he is taking issue with the motion judge’s reasons and not his order dismissing the motion for partial and summary judgment. 11 This decision concerns only this court’s appellate jurisdiction and ought not to be taken as having decided the question of whether and how the doctrine of issue estoppel may apply at trial for the purposes of establishing material facts that are not determinative of the respondent’s liability. Almrei v. Canada (Attorney General) Per curiam 179

12 The appeal is, therefore, quashed for want of jurisdiction. In all the circumstances the respondent is awarded costs in the amount of $5,000 inclusive of disbursements and GST. Appeal quashed. 180 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

[Indexed as: Foroogh v. Canada (Minister of Citizenship and Immigration)] Asadollah Foroogh, Badrieh Foroogh, Applicants and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-1775-12 2012 FC 1171 Michael L. Phelan J. Heard: September 25, 2012 Judgment: October 4, 2012 Immigration and citizenship –––– Admission — Application for temporary resident or immigrant visa — Powers and duties of visa or immigration officer — Procedural fairness –––– Visa officer found claimants to be Conven- tion refugees — Officer, however, found principal claimant to be inadmissible because he rejected his evidence respecting military service as clerk — Claim- ants applied for judicial review — Application granted — Officer breached rules of procedural fairness — Officer relied on his own supposed knowledge that clerks in Afghan military engaged in patrols — Officer did not give claimant opportunity to respond to this suggestion — Officer also expelled claimant from interview room when he complained of poor translation — Officer made no attempt to determine merits of complaint — Decision was also unreasonable. Cases considered by Michael L. Phelan J.: C.U.P.E. v. Ontario (Minister of Labour) (2003), 2003 CarswellOnt 1803, 2003 SCC 29, 2003 CarswellOnt 1770, 2003 C.L.L.C. 220-040, [2003] 1 S.C.R. 539, (sub nom. Canadian Union of Public Employees v. Ontario (Minister of Labour)) 173 O.A.C. 38, (sub nom. Canadian Union of Public Employees v. Ontario (Minister of Labour)) 66 O.R. (3d) 735 (note), 226 D.L.R. (4th) 193, (sub nom. Canadian Union of Public Employees v. Ontario (Minister of Labour)) 304 N.R. 76, 50 Admin. L.R. (3d) 1, REJB 2003-41592, [2003] S.C.J. No. 28 (S.C.C.) — referred to Chowdhury v. Canada (Minister of Citizenship & Immigration) (1998), 1998 CarswellNat 489, 43 Imm. L.R. (2d) 291 (Fed. T.D.) — considered Saifee v. Canada (Minister of Citizenship & Immigration) (2010), 2010 CF 589, 2010 CarswellNat 2934, 2010 FC 589, 2010 CarswellNat 1510, [2010] F.C.J. No. 693, [2010] A.C.F. No. 693 (F.C.) — followed Foroogh v. Canada (MCI) Michael L. Phelan J. 181

Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Generally — referred to s. 11(1) — considered

APPLICATION by claimants for judicial review of decision of visa officer dismissing their applications for permanent residence as Convention refugees.

Mr. Daniel McLeod, for Applicants Ms Caroline Christiaens, for Respondent

Michael L. Phelan J.: I. Introduction 1 This is a judicial review of a visa officer’s [Visa Officer] decision denying Mr. and Mrs. Foroogh’s application for permanent residence as Convention refugees. The decision first confirmed Mr. Foroogh’s status as a refugee (his wife’s application was dependent on her husband’s), but then found him “inadmissible”. 2 The applications of the two children, Farzan and Farhad, for refugee protection have been accepted.

II. Facts 3 The Applicants are Afghanistan citizens currently residing in Quetta, Pakistan. Their application for refugee protection and necessary visas were sponsored by the Lutheran Rim ad hoc Committee, a sponsoring organization authorized by the Respondent. 4 The critical fact in this matter is that Mr. Foroogh served in the military from 1977 to 1979. He claimed that after one month of training, he was stationed in a communications unit as a clerk. He described his responsibilities as arranging for the paperwork for attendance, mess and patrol duties. He could not accurately name the weapon on which he was trained nor did he have his identity card containing the details of his military service. 5 The Visa Officer’s interview is described in the Computer Assisted Immigration Processing System [CAIPS] Notes, supplemented by the Visa Officer’s affidavit filed in this judicial review. There is no transcript and the CAIPS Notes are at times confusing and apparently incomplete. 6 The interview was conducted with an interpreter. There were apparent problems with translation and when Mr. Foroogh protested about the 182 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

quality of the translation, he was sent out of the interview room by the Visa Officer. 7 In the Decision Letter the Visa Officer described his reason for not being satisfied that Mr. Foroogh was “not inadmissible” was that Mr. Foroogh was not being truthful regarding his military service location, when he served and his related duties. Given that Mr. Foroogh did not have documentary evidence about his military service (I note that he had been in the military 34 years prior), the Visa Officer said that he had to rely on Mr. Foroogh’s version of facts which he said had “significant inconsistencies”. 8 The specific inconsistencies cited against Mr. Foroogh were that he claimed he was trained on AK47s when AK47s were not used at that time in the Afghan military and that Mr. Foroogh could not state his as- signments, duties, and dates of assignment with their locations. From this, the Visa Officer determined that he had not met the requirements of the Immigration and Refugee Protection Act [IRPA]. The specific provision at issue is s 11(1) of the IRPA: 11. (1) A foreign national must, before entering Canada, apply to an officer for a visa or for any other document required by the regulations. The visa or document may be issued if, following an examination, the officer is satisfied that the foreign national is not inadmissible and meets the requirements of this Act. 11. (1) L’étranger doit, préalablement a` son entrée au Canada, de- mander a` l’agent les visa et autres documents requis par règlement. L’agent peut les délivrer sur preuve, a` la suite d’un contrôle, que l’étranger n’est pas interdit de territoire et se conforme a` la présente loi. 9 In the Visa Officer’s CAIPS Notes, the Visa Officer added references to events during the time of Mr. Foroogh’s military service, in particular the end of the Daoud regime in 1978 and incidents of human rights violations at that time. There was no correlation drawn or relevance shown between these human rights violations and Mr. Foroogh’s own military service. 10 In the Visa Officer’s affidavit filed by the Respondent, supposedly to address the issues of procedural fairness, the Visa Officer draws out more historical facts said to support his decision. The Visa Officer states, in addressing credibility, that from his own experience of interviews, soldiers assigned to clerical duties engaged in patrolling as well. Mr. Foroogh v. Canada (MCI) Michael L. Phelan J. 183

Foroogh had said that he was only involved in administrative work and had not been engaged in patrolling.

III. Analysis 11 The substantial legal issues are: • was there a breach(es) of procedural fairness? • was the decision reasonable? 12 Before addressing the substantive issues, some preliminary issues must be considered. The parties raised other issues such as the use of supplemental materials and whether Mrs. Foroogh was a protected person. 13 Since Mrs. Foroogh’s application was dependent on Mr. Foroogh’s, that issue need not be addressed. 14 As to the introduction of supplementary evidence that was not before the decision-maker, both parties engaged in this tactic. The Applicants are in the strange position of objecting to the Visa Officer’s affidavit for some matters but relying on it for others. 15 The Applicants’ supplemental materials are not significant in the context of the result in this Court. The Visa Officer’s affidavit is highly relevant on the issue of procedural fairness. The fact that he improperly attempts to further justify the merits of the decision is a matter relevant to procedural fairness.

A. Standard of Review 16 It is by now trite law that procedural fairness is reviewed on a correctness standard of review (C.U.P.E. v. Ontario (Minister of Labour), 2003 SCC 29, [2003] 1 S.C.R. 539 (S.C.C.)). 17 Issues of the merits of a visa decision are subject to the reasonableness standard of review. The standards of review applicable in this case are well described in Saifee v. Canada (Minister of Citizenship & Immi- gration), 2010 FC 589, 2010 CarswellNat 1510 (F.C.) at paras 25-26: ... decisions of visa officers determining if applicants are members of the Convention refugees abroad class or the country of asylum class essentially raise issues of fact or of mixed fact and law, and are consequently to be reviewed on a standard of reasonableness; however, issues concerning natural justice and of procedural fairness raised by such decisions are to be decided on a standard of correctness. 184 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

I agree with this approach, but add the following caveat: decisions by visa officers on pure questions of law made in the context of such decisions may require review on a standard of correctness. Conse- quently, the application of a standard of reasonableness in this case should not be interpreted as necessarily extending to decisions on issues of law.

B. Procedural Fairness 18 In assessing the impact of procedural fairness issues in this case, it is important to bear in mind that Mr. Foroogh was found to be a Conven- tion refugee but that protection was denied to him and his wife because of the “inadmissibility issue”. The procedural fairness issues all revolve around the inadmissibility issue and have significant consequences for the Applicants. 19 The Applicants say that the failure to provide proper translation is a breach of fairness. However, without a proper record, this Court cannot determine that the translation was so poor as to constitute a breach of fairness. 20 What is problematic is how the Visa Officer dealt with Mr. Foroogh’s complaint, midway through the interview, that the translator was not properly translating his words. No attempt was made to determine if there was a problem and Mr. Foroogh was banished from the room. On its own, the translation issue might not rise to the level of a breach of fairness but in the context of other issues, it points to how unsatisfactory this hearing process was and how infirmed the ultimate decision is. 21 The most serious breach of procedural fairness was the Visa Officer’s reliance on the extraneous evidence, in this case the personal experience of the Visa Officer interviewing other clerks, that clerks were often involved in patrolling and guarding in addition to administrative duties. It is evident from the decision that the Visa Officer’s adverse credibility finding was significantly tied to this extraneous evidence. 22 That extraneous evidence, read together with the comments about human rights, leads one to conclude that Mr. Foroogh was, in some un- specified and unproven way, involved in patrolling while human rights violations were being committed. 23 The Visa Officer owed it to Mr. Foroogh to confront him, at the very least, with the suggestion that clerks did patrols and guarded and therefore Mr. Foroogh’s evidence was inconsistent with those facts. Mr. Foroogh had a right to comment and allay any suspicions. He was never Foroogh v. Canada (MCI) Michael L. Phelan J. 185

afforded that opportunity on a matter of crucial importance to the Visa Officer. 24 This Court in Chowdhury v. Canada (Minister of Citizenship & Immi- gration) (1998), 43 Imm. L.R. (2d) 291 (Fed. T.D.), 1998 CanLII 7505, stated that visa officers could not be “coy” about their concerns; they act as a questioner and judge and therefore have a duty to be scrupulous about exposing their concerns. 25 This issue alone justifies granting judicial review of the inadmissibility finding.

C. Reasonableness of Decision 26 The reasonableness of the decision is substantially linked to the facts underlying the procedural fairness issues. 27 The Visa Officer did not accept Mr. Foroogh’s version because the Visa Officer relied on extraneous evidence. 28 Absent that evidence, the Visa Officer’s conclusion that Mr. Foroogh had not provided sufficient evidence of his military service is unreasonable. Mr. Foroogh described when he joined, where he was stationed, what unit he was attached to and what his duties were. It is difficult to determine what more the Visa Officer could reasonably need or want to know. 29 The Visa Officer never indicates in what way Mr. Foroogh could be inadmissible such as through complicity in human rights violation or some other offending conduct. Therefore, the only basis for being “not inadmissible” is the sufficiency of Mr. Foroogh’s evidence. 30 If insufficiency of evidence was the basis of the decision, and this Court has concluded that it was not, then the finding is unreasonable by reason of paragraph 28 herein. If the decision is said to have any sem- blance of reasonableness, it rests on the truth of extraneous evidence and its relevance to the Applicant but not put to him. 31 Therefore, the decision is also unreasonable.

IV. Remedy 32 The appropriate remedy is a challenge. The Applicants were successful on being found Convention refugees. It seems unfair that this positive finding could be put at risk by virtue of this case being remitted back for a new decision. 186 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

33 However, this Court is concerned that this whole process was flawed. The Court will quash the decision in whole and remit the matter back to a different officer. Given the findings with respect to the two sons and the refugee finding in respect of Mr. Foroogh, it would be unusual to not have the original refugee conclusion reaffirmed. 34 There is no question for certification.

Judgment THIS COURT’S JUDGMENT is that the application for judicial review is granted, the decision of the Canadian High Commission is quashed and the matter is to be remitted back to a different officer. Application granted. Westmore v. Canada (MCI) 187

[Indexed as: Westmore v. Canada (Minister of Citizenship and Immigration)] Michael Gordon Westmore, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-7309-11 2012 FC 1023 James Russell J. Heard: June 27, 2012 Judgment: August 28, 2012 Immigration and citizenship –––– Admission — Application for temporary resident or immigrant visa — Inland applications — Application of humanitarian and compassionate considerations — Miscellaneous –––– Applicant was citizen of United Kingdom living in Toronto — Applicant and Canadian husband started common law relationship in 1984 and married in 2004 — Appli- cant and husband split their time between UK and Canada so that applicant could retain visitor status in Canada — Husband/sponsor’s death in 2004 caused applicant to file for permanent residence on humanitarian and compassionate (H&C) grounds — Applicant’s first application was granted conditionally on grounds of community support, ties to Toronto, and fact that applicant would not be in financial difficulty if granted permanent residence — First application was eventually dismissed on lack of updated medical information — Legally blind applicant, aged 70, submitted second, similar H&C application on grounds that he was established in Canada, had no link to UK, and that he would not benefit from same services for blindness in UK — Immigration officer refused application — Applicant applied for judicial review of decision — Application granted — Applicant was relatively elderly and blind but well-off financially — Officer failed to explain negative conclusion when previous H&C application was positive — Focus of applicant’s submissions was hardship he faced from having to relocate to UK — Officer’s treatment of evidence of applicant’s support system in Canada, or lack thereof, was unreasonable — Officer failed to give applicant’s sworn statement presumption of truthfulness — Decision was returned for reconsideration by different officer. Immigration and citizenship –––– Admission — Application for temporary resident or immigrant visa — Inland applications — Application of humanitarian and compassionate considerations — Establishment in Canada. 188 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

Cases considered by James Russell J.: Adu v. Canada (Minister of Citizenship & Immigration) (2005), 2005 FC 565, 2005 CarswellNat 1047, 2005 CF 565, 2005 CarswellNat 3483, [2005] F.C.J. No. 693 (F.C.) — referred to Baker v. Canada (Minister of Citizenship & Immigration) (1999), 1 Imm. L.R. (3d) 1, [1999] 2 S.C.R. 817, 14 Admin. L.R. (3d) 173, 174 D.L.R. (4th) 193, 1999 CarswellNat 1124, 1999 CarswellNat 1125, 243 N.R. 22, [1999] S.C.J. No. 39 (S.C.C.) — considered C.U.P.E. v. Ontario (Minister of Labour) (2003), 2003 CarswellOnt 1803, 2003 SCC 29, 2003 CarswellOnt 1770, 2003 C.L.L.C. 220-040, [2003] 1 S.C.R. 539, (sub nom. Canadian Union of Public Employees v. Ontario (Minister of Labour)) 173 O.A.C. 38, (sub nom. Canadian Union of Public Employees v. Ontario (Minister of Labour)) 66 O.R. (3d) 735 (note), 226 D.L.R. (4th) 193, (sub nom. Canadian Union of Public Employees v. Ontario (Minister of Labour)) 304 N.R. 76, 50 Admin. L.R. (3d) 1, REJB 2003-41592, [2003] S.C.J. No. 28 (S.C.C.) — considered Fabian v. Canada (Minister of Citizenship & Immigration) (2003), 2003 FC 1527, 2003 CarswellNat 4197, 2003 CF 1527, 2003 CarswellNat 4664, 39 Imm. L.R. (3d) 293, 244 F.T.R. 223, [2003] F.C.J. No. 1951 (F.C.) — referred to Ferguson v. Canada (Minister of Citizenship & Immigration) (2008), 2008 Car- swellNat 3353, 2008 FC 1067, 74 Imm. L.R. (3d) 306, [2008] F.C.J. No. 1308 (F.C.) — considered Khosa v. Canada (Minister of Citizenship & Immigration) (2009), 82 Admin. L.R. (4th) 1, 2009 SCC 12, 2009 CarswellNat 434, 2009 CarswellNat 435, 304 D.L.R. (4th) 1, 77 Imm. L.R. (3d) 1, 385 N.R. 206, (sub nom. Canada (Citizenship & Immigration) v. Khosa) [2009] 1 S.C.R. 339, [2009] S.C.J. No. 12 (S.C.C.) — referred to Maldonado v. Canada (Minister of Employment & Immigration) (1979), [1980] 2 F.C. 302, 1979 CarswellNat 168, 1979 CarswellNat 168F, 31 N.R. 34, [1979] F.C.J. No. 248 (Fed. C.A.) — considered N.L.N.U. v. Newfoundland & Labrador (Treasury Board) (2011), 2011 Car- swellNfld 414, 2011 CarswellNfld 415, 2011 SCC 62, 38 Admin. L.R. (5th) 255, (sub nom. Nfld. and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board)) 2011 C.L.L.C. 220-008, (sub nom. Newfoundland & Labrador Nurses’ Union v. Newfoundland & Labrador (Treasury Board)) 424 N.R. 220, 340 D.L.R. (4th) 17, D.T.E. 2012T-7, (sub nom. Newfoundland & Labrador Nurses’ Union v. Newfoundland & Labrador (Treasury Board)) [2011] 3 S.C.R. 708, 213 L.A.C. (4th) 95, 97 C.C.E.L. (3d) 199, (sub nom. Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board)) 986 A.P.R. 340, (sub nom. Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador Westmore v. Canada (MCI) James Russell J. 189

(Treasury Board)) 317 Nfld. & P.E.I.R. 340, [2011] S.C.J. No. 62 (S.C.C.) — considered New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1, 69 Admin. L.R. (4th) 1, 69 Imm. L.R. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) [2008] 1 S.C.R. 190, 844 A.P.R. 1, (sub nom. Dunsmuir v. New Brunswick) 2008 C.L.L.C. 220-020, D.T.E. 2008T-223, 329 N.B.R. (2d) 1, (sub nom. Dunsmuir v. New Brunswick) 170 L.A.C. (4th) 1, (sub nom. Dunsmuir v. New Brunswick) 291 D.L.R. (4th) 577, 2008 CarswellNB 124, 2008 CarswellNB 125, 2008 SCC 9, 64 C.C.E.L. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) 95 L.C.R. 65, [2008] S.C.J. No. 9, [2008] A.C.S. No. 9 (S.C.C.) — followed R. v. Sheppard (2002), 50 C.R. (5th) 68, 211 Nfld. & P.E.I.R. 50, 633 A.P.R. 50, 210 D.L.R. (4th) 608, 284 N.R. 342, [2002] 1 S.C.R. 869, 2002 SCC 26, 2002 CarswellNfld 74, 2002 CarswellNfld 75, 162 C.C.C. (3d) 298, [2002] S.C.J. No. 30, REJB 2002-29516 (S.C.C.) — considered Serda v. Canada (Minister of Citizenship & Immigration) (2006), 2006 FC 356, 2006 CarswellNat 591, 2006 CF 356, 2006 CarswellNat 2838, [2006] F.C.J. No. 425 (F.C.) — considered Sketchley v. Canada (Attorney General) (2005), 2006 C.L.L.C. 230-002, 2005 CAF 404, 2005 CarswellNat 5119, [2006] 3 F.C.R. 392, 2005 FCA 404, 2005 CarswellNat 4194, 344 N.R. 257, 44 Admin. L.R. (4th) 4, 56 C.H.R.R. D/490, 263 D.L.R. (4th) 113, [2005] F.C.J. No. 2056 (F.C.A.) — considered Thandal v. Canada (Minister of Citizenship & Immigration) (2008), 2008 CF 489, 2008 CarswellNat 1085, 2008 FC 489, 2008 CarswellNat 1958, [2008] F.C.J. No. 623 (F.C.) — followed Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 11 — considered s. 25(1) — considered s. 72(1) — pursuant to

APPLICATION for judicial review for immigration officer’s decision dismissing applicant’s H&C application.

Michael F. Battista, for Applicant Michael Butterfield, for Respondent

James Russell J.: Introduction 1 This is an application under subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 (Act) for judicial review of the 190 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

decision of an immigration officer (Officer), dated 9 September 2011 (Decision), which refused the Applicant’s application for permanent residence on humanitarian and compassionate (H&C) grounds under subsection 25(1) of the Act.

Background 2 The Applicant is 70 years old and a citizen of the United Kingdom (UK). He currently lives in Toronto. 3 The Applicant and his husband, Stennett, met in 1983. They lived together in a common-law relationship from 1985 until 2004. During their relationship, they split their time between the UK and Canada, spending part of each year abroad so the Applicant could maintain his visitor status in Canada. In 2003, the immigration regulations changed to permit same-sex spousal sponsorships, so Stennett and the Applicant married. They began a spousal sponsorship application on 15 June 2004. Unfortunately, Stennett fell ill and died on 25 October 2004. 4 After Stennett died, the Applicant could no longer be sponsored to Canada as a spouse. He asked the Respondent to process his application as an H&C application. The Respondent did so and granted preliminary approval of the application on 5 August 2005. The immigration officer reviewing that application found that there was strong evidence of community support and ties to Toronto. The Applicant had also shown that he would not be in financial difficulty if he were granted permanent residence. After conditional approval, the Respondent asked the Applicant to provide an updated medical examination to complete the application. The Certified Tribunal Record (CTR) suggests a communication breakdown between the Applicant, his representatives, and the Respondent. For whatever reason, the Applicant did not submit updated medical information and the Respondent refused his first H&C application as incomplete on 27 March 2008. 5 The Applicant submitted a second H&C application on 16 November 2009. This application was substantially similar to his initial application. The Applicant relied on his establishment in Canada resulting from his long stay here with Stennett and his lack of links to the UK. He said he would not have access to services from the Canadian National Institute for the Blind (CNIB) if he could not stay in Canada. This would cause him unusual and undeserved or disproportionate hardship. To support his H&C application, the Applicant provided several pieces of financial information and several letters of support from friends in Toronto. He also Westmore v. Canada (MCI) James Russell J. 191

said in his submissions that he had no friend or family in the UK because his parents and only sibling are dead. 6 The Officer considered the Applicant’s submissions and refused his application on 9 September 2011. The Officer notified the Applicant of the Decision by letter dated 21 September 2011. (Refusal Letter).

Decision Under Review 7 The Decision in this case consists of the Refusal Letter and the H&C Reasons for Decision (Reasons) which the Officer signed on 9 Septem- ber 2011. 8 The Officer reviewed the Applicant’s biographical data and immigration history. She noted his previous unsuccessful H&C application and outlined the bases for the new application. The Refusal Letter informed the Applicant that he bore the onus to establish the hardship he would suffer if he were not granted an H&C exemption. 9 The Officer reviewed the positive factors the Applicant had set out in his application, noting his involvement in several community organizations, including the CNIB. She also noted he owned property in Canada and in the UK and had the support of friends in Canada who he has known for more than 25 years. He had also travelled extensively between Canada and the UK with Stennett, and he had never requested an exten- sion of his visitor status in Canada. When Stennett became ill, the Appli- cant spent as much time as he could in Canada to care for him. 10 Although the Applicant had significant supports in Canada, he had not provided sufficient evidence that he would not have a support system in the UK. He had also not shown he could not access services in the UK similar to those provided by the CNIB in Canada. Further, the Applicant could continue to come to Canada as a visitor, as he had for many years. 11 The Officer acknowledged the Applicant has no immediate family in the UK, but found there was insufficient evidence to show he did not have other family or friends in the UK who could support him there. The Applicant had provided insufficient evidence that he had spent any significant amount of time in Canada since Stennett had passed away, though he had maintained his status in Canada by leaving twice each year. 12 The Applicant had not shown he would suffer unusual and undeserved or disproportionate hardship if he applied for permanent residence from outside Canada or if he were required to leave Canada twice each 192 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

year. He had chosen to continue visiting Canada even after Stennett passed away, and even though he was given an opportunity for permanent residence with the conditional approval of his first H&C application.

Issues 13 The Applicant formally raises the following issue in this application: i. Whether the Officer’s reasons are adequate. 14 He also raises the following issues in his argument: i. Whether the Decision was reasonable; ii. Whether he had a legitimate expectation an H&C exemption would be granted.

Standard of Review 15 The Supreme Court of Canada in New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9 (S.C.C.) held that a standard of review analysis need not be conducted in every instance. Instead, where the standard of review applicable to a particular question before the court is well-settled by past jurisprudence, the reviewing court may adopt that standard of review. Only where this search proves fruitless must the reviewing court undertake a consideration of the four factors comprising the standard of review analysis. 16 In Baker v. Canada (Minister of Citizenship & Immigration), [1999] 2 S.C.R. 817 (S.C.C.), the Supreme Court of Canada held that when reviewing an H&C decision, “considerable deference should be accorded to immigration Officers exercising the powers conferred by the legislation, given the fact-specific nature of the inquiry, its role within the statutory scheme as an exception, the fact that the decision-maker is the Min- ister, and the considerable discretion evidenced by the statutory language” (paragraph 62). Justice Michael Phelan followed this approach in Thandal v. Canada (Minister of Citizenship & Immigration), 2008 FC 489 (F.C.), at paragraph 7. The standard of review on the second issue is reasonableness. 17 In N.L.N.U. v. Newfoundland & Labrador (Treasury Board), 2011 SCC 62 (S.C.C.), the Supreme Court of Canada held at paragraph 14 that the adequacy of reasons is not a stand-alone basis for quashing a decision. Rather, “the reasons must be read together with the outcome and serve the purpose of showing whether the result falls within a range of Westmore v. Canada (MCI) James Russell J. 193

possible outcomes.” With respect to the first issue, the adequacy of the reasons will be analysed along with the reasonableness of the Decision as a whole. 18 When reviewing a decision on the standard of reasonableness, the analysis will be concerned with “the existence of justification, transparency and intelligibility within the decisionmaking process [and also with] whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.” See Dun- smuir, above, at paragraph 47, and Khosa v. Canada (Minister of Citizenship & Immigration), 2009 SCC 12 (S.C.C.) at paragraph 59. Put another way, the Court should intervene only if the Decision was unreasonable in the sense that it falls outside the “range of possible, acceptable outcomes which are defensible in respect of the facts and law.” 19 In Baker, above, at paragraph 26, the Supreme Court of Canada held that the doctrine of legitimate expectations is part of the doctrine of fairness or natural justice. Where a party has a legitimate expectation, this will affect the content of the duty of fairness, but that expectation cannot create a substantive right. In C.U.P.E. v. Ontario (Minister of Labour), 2003 SCC 29 (S.C.C.), the Supreme Court of Canada held at paragraph 100 that “It is for the courts, not the Minister, to provide the legal answer to procedural fairness questions.” Further, the Federal Court of Appeal in Sketchley v. Canada (Attorney General), 2005 FCA 404 (F.C.A.) at paragraph 53 held that the “procedural fairness element is reviewed as a question of law. No deference is due. The decisionmaker has either com- plied with the content of the duty of fairness appropriate for the particular circumstances, or has breached this duty.” The standard of review on the third issue is correctness.

Statutory Provisons 20 The following provision of the Act is applicable in this proceeding: 25. (1) The Minister must, on request of a foreign national in Canada who is inadmissible or who does not meet the requirements of this Act, and may, on request of a foreign national outside Canada, examine the circumstances concerning the foreign national and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligations of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to the foreign national, taking into account the best interests of a child directly affected. 194 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

25. (1) Le ministre doit, sur demande d’un etranger´ se trouvant au Canada qui est interdit de territoire ou qui ne se conforme pas a` la présente loi, et peut, sur demande d’un etranger´ se trouvant hors du Canada, etudier´ le cas de cet etranger;´ il peut lui octroyer le statut de résident permanent ou lever tout ou partie des critères et obligations applicables, s’il estime que des considérations d’ordre humanitaire relatives a` l’étranger le justifient, compte tenu de l’intérêt supérieur de l’enfant directement touché.

Arguments The Applicant Reasons Inadequate 21 The Officer’s reasons are inadequate because they do not sufficiently inform the Applicant about why his application was refused. His first application was approved in principle on similar grounds as those advanced in his second application. However, the Officer did not adequately explain why the result of his second application was different from the first. The two applications were substantially the same, except the Applicant was more established in Canada by the time of the second application. The Officer should have explained how the two applications were different. The Applicant cannot know why his application was rejected, so the Decision must be returned. See Adu v. Canada (Minister of Citizenship & Immigration), 2005 FC 565 (F.C.). 22 The Officer also did not address the claim as put forward by the Ap- plicant. He said he would face hardship in the UK from being disconnected from the CNIB. However, the Officer looked at whether he would be able to access similar services in the UK. The reasons do not show the Officer considered hardship flowing from disconnection, so they are inadequate.

Decision Unreasonable 23 When she concluded there was insufficient evidence that the Appli- cant did not have a support network in the UK, the Officer required the Applicant to prove a negative. This was unreasonable because the only way he could meet the Officer’s test would be to interview everyone in the UK. There was also evidence before the Officer, in the Applicant’s statements on the H&C application form and the submissions he made, which showed he did not have family or friends in the UK. The Officer ignored this evidence, so the Decision is unreasonable. Westmore v. Canada (MCI) James Russell J. 195

24 When she found there was “insufficient evidence that he has spent any significant amount of time in Canada since the passing of his spouse,” the Officer also ignored evidence. The Applicant said in his submissions that he had lived in Canada since January 2001, which includes the time after Stennett died. He also listed Canadian residences on the application form dating back to January 2001. 25 The Applicant also provided extensive evidence of his establishment in Canada, but the Officer did not consider it. He pointed out that he owns property here, has a support network of friends, and depends on the services of the CNIB. However the Officer did not consider this evidence. The Applicant’s stay in Canada was beyond his control, so a positive H&C decision was warranted in his case.

The Respondent Reasons Adequate 26 Under section 11 of the Act, all foreign nationals must seek a visa before coming to Canada. H&C consideration under subsection 25(1) allows for special and additional consideration; it is not a back-door into Canada when all other avenues have been exhausted. In this case, the Officer considered all the evidence which was before her and concluded the Applicant would not face unusual and undeserved or disproportionate hardship if he had to seek a permanent resident visa through the normal process. She provided adequate reasons, so the Decision should stand. 27 A decision-maker’s reasons are adequate when “the losing party knows why he or she has lost. Informed consideration can be given to grounds for appeal. Interested members of the public can satisfy themselves that justice has been done, or not, as the case may be.” See R. v. Sheppard, 2002 SCC 26 (S.C.C.) at paragraph 24. In an administrative context, reasons need not be as comprehensive as in an adjudicative context. See Fabian v. Canada (Minister of Citizenship & Immigration), 2003 FC 1527 (F.C.) at paragraph 34. The reasons do not need to refer to every piece of evidence. See Newfoundland Nurses, above, at paragraph 14. Dunsmuir, above, at paragraph 47 shows that two officers could consider the same arguments and evidence, arrive at opposite conclusions, and both be upheld on judicial review. 28 It was open to the Officer to come to a different conclusion from that of the first officer, so long as her findings were reasonable. The Appli- cant has challenged the Officer’s finding that he provided insufficient evidence he did not have a support network in the UK. However, his 196 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

submissions only said he did not have a community of friends in the UK who know he is homosexual. 29 The Applicant relied heavily on his long residence in Canada to show his establishment. However, throughout this time he was always a visitor to Canada and made frequent visits to the UK. It was open to the Officer to conclude from these visits that he could continue doing so and maintain his friendships in Canada. There was no reason his application for permanent residence could not be processed while he waited in the UK. Further, the ten years the Applicant spent in Canada could not outweigh the sixty years he spent outside of Canada before he began to reside here. 30 The Applicant has not challenged the Officer’s finding that he had not shown equivalent services were not available in the UK. No unusual and undeserved or disproportionate hardship can flow from having to access equivalent services in one’s home country. The Applicant simply prefers the Canadian services, but this does not amount to hardship. 31 It is true that counsel’s statements, such as the submissions the Appli- cant says the Officer ignored, can be relied on as evidence. However, Ferguson v. Canada (Minister of Citizenship & Immigration), 2008 FC 1067 (F.C.) shows that these statements must be treated as unsworn statements from the Applicant. The Officer did not ignore the Appli- cant’s submissions. She found they were not sufficient to show he could not obtain the care and assistance he required in his daily life. The Of- ficer did not ignore evidence of his establishment. 32 The Applicant has also not provided any authority for his assertion that awaiting the outcome of a visa application is a circumstance beyond his control such that establishment should be considered favourably. On the contrary, Justice Yves de Montigny held in Serda v. Canada (Minister of Citizenship & Immigration), 2006 FC 356 (F.C.) at paragraph 21 that: It would obviously defeat the purpose of the Act if the longer an applicant was to live illegally in Canada, the better his or her chances were to be allowed to stay permanently, even though he or she would not otherwise qualify as a refugee or permanent resident. This circu- lar argument was indeed considered by the H & C officer, but not accepted; it doesn’t strike me as being an unreasonable conclusion 33 The Applicant did not satisfy the Officer that he would face unusual and undeserved or disproportionate hardship, even though he bore the onus to do so. The Court cannot intervene simply because the Officer did a poor job of expressing herself. Westmore v. Canada (MCI) James Russell J. 197

The Applicant’s Reply 34 The evidence before the Officer was that the Applicant has effectively resided in Canada for more than ten years. It is not relevant to the reasonableness of the Decision that the Applicant was a temporary resident during this period. What matters is that he would face hardship from having to apply for a visa from outside Canada. 35 Newfoundland Nurses, above, does not change the requirement that reasons adequately explain the basis for the Decision. The Officer did not explain why two applications on the same evidence did not lead to the same results. The Applicant had a legitimate expectation the results of the two applications would be the same. This expectation obligated the Officer to explain the reasons for the contrary conclusion. The Officer was not bound by the result in the first application, but she was required to explain why she reached a different conclusion. Reasonableness does not allow decisions to be made arbitrarily; it is arbitrary to reach a different conclusion on the same evidence without explaining why. The Deci- sion was inconsistent with the values which underlie ministerial discretion, so it must be reconsidered. See Baker, above, at paragraph 74.

Analysis 36 The Applicant is relatively elderly and blind. On the other hand, he is comfortably well-off financially. He has visitor status in Canada but says that for many years now he has spent significant amounts of time here. He has property here, he pays taxes, and he has a community in Toronto where he is also attached to the CNIB. Naturally, he is emotionally attached to his present way of life and, after many years of remaining a visitor, he would now like the security of permanent residence in Canada. 37 The Officer concluded that the Applicant had not established unusual and undeserved or disproportionate hardship if he was required to submit an application from outside Canada and that, in fact, there was little to suggest he could not continue doing what he has been doing for many years now. Even though he is technically a visitor, he has been able to become quite well established in Toronto and to acquire a community of friends, an active life, and the services of CNIB. 38 The Applicant has raised several grounds for review. The only ones which, in my view, require consideration are the allegations that the De- cision lacks transparency and intelligibility because the Officer failed to explain why she came to a negative conclusion when the Applicant’s 198 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

previous H&C application was positive, and that the Officer’s various conclusions regarding insufficient evidence about support systems in the UK, and his ability to replace what he has at CNIB in the UK, are simply unreasonable given the evidence that was before the Officer. 39 In my view, when the Decision is read as a whole, it does make clear that the Officer considered the previous positive decision, and she gives reasons why she does not simply follow it. Essentially, her reasoning is that the Applicant failed to avail himself of a previous opportunity to acquire permanent residence in Canada and has shown by his actions over many years that he can function well enough as a visitor. His prior application was converted from a sponsorship after the Applicant’s spouse died before the application was completed. An approval letter was sent (we do not know if he received it) and the Applicant or his representative were “contacted a number of times with reminders.” Even- tually a refusal letter based upon non-compliance was issued. 40 Since that time, and according to his own evidence, the Applicant has succeeded in making Canada his principal residence while maintaining his visitor status. There is no evidence that this cannot continue, even though it is possible that his visitor status might not be renewed at some time in the future. In my view, this explains why the Officer did not find the previous positive decision determinative. What is different from the previous H&C application is that the Applicant, for whatever reasons, did not perfect the previous application after repeated attempts by the consulate in London to get him to do so, and he has continued to use his visitor status ever since to move between the UK and Canada, even though he has eventually concluded that he would like to obtain permanent resident status here. 41 The focus of the Applicant’s submissions on his H&C Application was the hardship he faced from having to relocate to the UK, where he had no family or friends. He would also experience hardship from being disconnected from the services provided by the CNIB. 42 A significant portion of the Officer’s reasoning relates to her finding that “there is insufficient evidence showing whether [the Applicant] has any other family in the United Kingdom or that he may have friends or acquaintances from his previous travels home that may be able to provide support.” Had the Applicant established to the Officer’s satisfaction that he had no one to return to, the outcome of the Decision might well have been different. Westmore v. Canada (MCI) James Russell J. 199

43 I think the Officer’s treatment of the evidence establishing his support system, or lack thereof, was unreasonable. She found there was insufficient evidence that other family in the UK — the Officer accepted that his mother and brother were both deceased — could support the Appli- cant. However, it seems the Officer ignored the evidence in the Appli- cant’s H&C application form. Part C of the application form called on the Applicant to list his family members who were living in Canada. He listed no one. He also wrote in his Supplementary Information Form that “I have no family or friends remaining in my country of citizenship, the United Kingdom.” Further, the Applicant said that “All of my friends and support networks are in Canada,” which necessarily implies he has no support network in the UK. On both of these forms, the Applicant declared that the information he gave was true and correct. 44 The Officer had before her sworn evidence which established a crucial aspect of the Applicant’s request for an H&C exemption. However, she concluded there was insufficient evidence to establish the lack of support. In doing so, the Officer failed to give the Applicant’s sworn statement the presumption of truthfulness which Maldonado v. Canada (Minister of Employment & Immigration) (1979), [1980] 2 F.C. 302 (Fed. C.A.) establishes. 45 There was no evidence before the Officer to show the Applicant’s statements were not true. She also does not explain why this sworn evidence was insufficient to establish the lack of support in the UK. Look- ing at the Decision and the record together, as Newfoundland Nurses’, above, directs, I am left wondering how the Officer arrived at this conclusion. As such, I think the Decision must be returned for reconsideration. 46 Counsel agree there is no question for certification and the Court concurs.

Judgment THIS COURT’S JUDGMENT is that 1. The application is allowed. The Decision is quashed and the matter is returned for reconsideration by a different officer. 2. There is no question for certification. Application granted; matter returned for reconsideration by different officer. 200 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

[Indexed as: Bhagria v. Canada (Minister of Citizenship and Immigration)] Devansh Bhagria, Agum Kumar Bhagria and Sangeeta Rani Bhagria, Applicants and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: T-1272-11 2012 FC 1015 John A. O’Keefe J. Heard: March 8, 2012 Judgment: August 27, 2012* Immigration and citizenship –––– Citizenship — Application for grant of or retention of citizenship — Procedure –––– Applicants husband and wife had adoption decree from Indian court for principal applicant child D, citizen of In- dia — Winnipeg Child and Family Services approved adoption following home study and couple filed application for D’s Canadian citizenship at Canadian High Commission in New Delhi — Officer requested required documents to process application, including no objection certificate (NOC) from Indian central Adoption Resource Authority (CARA) and document was produced — Sub- sequently, upon further request, CARA refused to certify genuineness of NOC, stating that NOC was not issued by CARA and NOC was therefore not authentic — Officer interpreted CARA’s position to mean that document submitted to establish approval for international adoption was fraudulent and determined that D failed to satisfy requirements for grant of Canadian citizenship under s. 5.1(1)(c) of Citizenship Act — Based on husband’s further inquiries at CARA, husband explained that CARA mistakenly sent initial NOC which related to other child of same name, and that CARA’s approval of international adoption for D was pending — Officer refused to grant Canadian citizenship to D — D applied for judicial review of decision — Application granted — Applying appropriate standard of review of correctness to issue of procedural fairness, evidence supported conclusion that immigration officer failed to provide minimum of procedural fairness in refusing grant of citizenship to adopted foreign child — Procedural fairness required immigration officer, in light of clear explanation differing from officer’s finding of fact, to inquire further into NOC matter —

*A corrigendum issued by the court on October 23, 2012 has been incorporated herein. Bhagria v. Canada (MCI) 201

Officer’s failure to make further inquiries had effect of defeating Parliament’s intent in enacting s. 5.1 of Act to reduce citizenship eligibility distinctions between adopted foreign children and children born abroad to Canadian parents. Cases considered by John A. O’Keefe J.: Baker v. Canada (Minister of Citizenship & Immigration) (1999), 1 Imm. L.R. (3d) 1, [1999] 2 S.C.R. 817, 14 Admin. L.R. (3d) 173, 174 D.L.R. (4th) 193, 1999 CarswellNat 1124, 1999 CarswellNat 1125, 243 N.R. 22, [1999] S.C.J. No. 39 (S.C.C.) — followed Jardine v. Canada (Minister of Citizenship & Immigration) (2011), 2011 Car- swellNat 1981, 2011 FC 565, 2011 CarswellNat 2986, 2011 CF 565, [2011] F.C.J. No. 782 (F.C.) — referred to Khosa v. Canada (Minister of Citizenship & Immigration) (2009), 82 Admin. L.R. (4th) 1, 2009 SCC 12, 2009 CarswellNat 434, 2009 CarswellNat 435, 304 D.L.R. (4th) 1, 77 Imm. L.R. (3d) 1, 385 N.R. 206, (sub nom. Canada (Citizenship & Immigration) v. Khosa) [2009] 1 S.C.R. 339, [2009] S.C.J. No. 12 (S.C.C.) — referred to Malik v. Canada (Minister of Citizenship & Immigration) (2009), 2009 CF 1283, 2009 CarswellNat 5826, 2009 FC 1283, 2009 CarswellNat 4345, [2009] F.C.J. No. 1643 (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 Statutes considered: Citizenship Act, R.S.C. 1985, c. C-29 Generally — referred to s. 5.1 [en. 2007, c. 24, s. 2] — considered s. 5.1(1) [en. 2007, c. 24, s. 2] — referred to s. 5.1(1)(c) [en. 2007, c. 24, s. 2] — considered Citizenship Act (Adoption), Act to amend the, S.C. 2007, c. 24 Generally — referred to Federal Courts Act, R.S.C. 1985, c. F-7 s. 18.1 [en. 1990, c. 8, s. 5] — pursuant to 202 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

Regulations considered: Citizenship Act, R.S.C. 1985, c. C-29 Citizenship Regulations, 1993, SOR/93-246 Generally — referred to s. 5.1(3)(b)(i) [en. SOR/2007-281] — considered

APPLICATION for judicial review of decision refusing applicant grant of citizenship.

Stacey L. Belding, for Applicants Alex Menticoglou, for Respondent

John A. O’Keefe J.:

1 This is an application for judicial review under section 18.1 of the Federal Courts Act, RSC 1985, c F-7, of a decision dated June 8, 2011 by a foreign service officer of the Canadian High Commission in India (the officer), refusing to grant Canadian citizenship to the applicant, Devansh Bhagria. This conclusion was based on the officer’s finding that the adoption approval letter from the Indian authority for international adoptions was fraudulent. Therefore, pursuant to paragraph 5.1(1)(c) of the Citizenship Act, RSC 1985, c C-29, the officer concluded that the applicant, Devansh Bhagria did not meet the requirements for a grant of Canadian citizenship. The applicants request that this Court order the granting of Canadian citizenship to the applicant, Devansh Bhagria. In the alternative, the applicants request that the officer’s decision be set aside and that Devansh Bhagria’s citizenship application be referred back to the Canadian High Commission in India for continued processing. 2 The principal applicant is the infant, Devansh Bhagria. He is a citizen of India. The other applicants, the applicant couple, are Agum Kumar Bhagria and Sangeeta Rani Bhagria. They were married in 1990 and subsequently became Canadian citizens. The applicant couple currently resides in Winnipeg. 3 The principal applicant was born on May 9, 2010. His mother is Mrs. Bhagria’s distant cousin. As the applicant couple has been unable to have children, the principal applicant’s mother offered to let them adopt her son. With the blessing of Mrs. Bhagria’s grandmother, the applicant couple decided to proceed with the adoption. On May 28, 2010, the Roorkee Court in India issued a deed of adoption of the principal applicant to the applicant couple. Bhagria v. Canada (MCI) John A. O’Keefe J. 203

4 On August 16, 2010, the Winnipeg Child and Family Services issued a home study report for the international adoption of the principal applicant by the applicant couple. This report recommended approval of the adoption. 5 On January 4, 2011, the principal applicant’s Canadian citizenship application was filed at the Canadian High Commission in New Delhi. The following month, on February 16, 2011, the officer sent a request letter for documents required to process the application. These included a home study, a no objection certificate (NOC) from the Indian Central Adoption Resource Authority (CARA) and a provincial NOC. 6 In an NOC dated April 4, 2011, CARA stated that it had no objection to the adoption. However, as the NOC was not directly received from CARA, the province of Manitoba requested that its genuineness be verified. 7 On April 21, 2011, a designated immigration officer at the Canadian High Commission sent an email to CARA. A copy of the NOC was attached with a request for verification of its authenticity. Later the same morning, C. Saraswathi, assistant director of CARA, sent an email reply indicating that CARA had not issued the subject NOC and it was therefore not authentic. 8 Thereafter, on April 27, 2011, the officer sent the applicants a procedural fairness letter stating that CARA had informed the Canadian High Commission that the NOC was fraudulent. The officer notified the applicants that they had thirty days to provide additional submissions. 9 Mr. Bhagria was in India when the procedural fairness letter was received. Therefore, on or about May 3, 2011, Mr. Bhagria attended the CARA office in New Delhi and met with the head of the department, Ms. Anu Jai Singh. Ms. Singh allegedly informed Mr. Bhagria that the case was still pending because the principal applicant was not an immediate family member, but rather a child of a distant cousin. The NOC provided to the Canadian High Commission was therefore created in error. In fact, it pertained to another child with the same first name as the principal applicant. However, contrary to the principal applicant, that child’s file had already been approved. 10 On May 4, 2011, Mr. Bhagria attended the Canadian High Commis- sion in New Delhi. He spoke with immigration officer Manjit Keshub and informed him of his visit to CARA. In an email to the officer, Of- ficer Keshub informed her of Mr. Bhagria’s visit. Officer Keshub explained that Mr. Bhagria had spoken with Ms. Singh, who had informed 204 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

him that the NOC was issued by CARA by mistake and this was a technical error on their part. However, Officer Keshub noted that in its reply email to the NOC verification inquiry, CARA did not say that it issued the NOC, but did so in error. 11 On May 12, 2011, Mr. Bhagria returned to the Canadian High Com- mission in New Delhi and requested a meeting with the officer. This request was denied, so Mr. Bhagria prepared written submissions which he left at the Canadian High Commission for the officer. In these submissions, Mr. Bhagria indicated that a CARA official had assured him that the principal applicant’s case was under consideration. However, all cases had been held until the end of July due to changes in CARA’s adoption rules. Mr. Bhagria therefore requested that the officer recon- sider the file until the applicants received written response from CARA. 12 Mr. Bhagria has allegedly repeatedly requested that CARA draft a new letter acknowledging its mistake, however, no such letter has yet been issued. Mr. Bhagria has also retained a lawyer in India to assist with this matter and that case is pending. Mrs. Bhagria remains in India with the principal applicant awaiting a determination on this application.

Officer’s Decision 13 In a letter dated June 8, 2011, the officer notified the principal applicant that his citizenship application did not meet the legal requirements under paragraph 5.1(1)(c) of the Citizenship Act. The officer explained that this finding was based on the evidence from CARA that the NOC was fraudulent. It was therefore not established that the principal applicant’s adoption was in accordance with the laws of India, where it took place. For these reasons, the principal applicant’s citizenship application was refused. 14 The reasons for the officer’s decision are expanded upon in the Global Case Management System (GCMS). These GCMS notes form part of the decision. 15 The GCMS notes indicate that on May 4, 2011, Mr. Bhagria attended the Canadian High Commission in New Delhi to inquire about the principal applicant’s application. The officer denied his request for an in-person meeting. Nevertheless, Mr. Bhagria notified Officer Keshub that he had visited the CARA office on May 3, 2011 and had spoken with Anu J. Singh, Secretary. The GCMS notes indicate that Ms. Singh informed Mr. Bhagria that CARA had not approved the NOC application because the principal applicant was a child of a distant cousin rather than an immedi- Bhagria v. Canada (MCI) John A. O’Keefe J. 205

ate family member. Ms. Singh also stated that CARA mistakenly issued the NOC. The GCMS notes also acknowledge Mr. Bhagria’s explanation that his friend, Mr. Anand had coordinated on his behalf with CARA and had obtained the NOC from CARA. However, although the officer recognized these submissions, she noted that CARA did not inform the Ca- nadian High Commission that the NOC was issued in error. 16 The officer also reviewed Mr. Bhagria’s May 12, 2011 submissions. These submissions included a letter to CARA requesting reconsideration of the decision to refuse the NOC. However, the officer noted that although the NOC was refused, the applicants had presented a fraudulent NOC to the Canadian High Commission. She noted that no response was provided on the issue of the fraudulent NOC. As such, the officer refused the principal applicant’s citizenship application.

Issues 17 The applicants submit the following points at issue: 1. What is the standard of review in this case? 2. What is required by the duty of fairness in this case? 3. Did the Canadian High Commission breach its duty of fairness to the applicants? 18 I would rephrase the issues as follows: 1. What is the appropriate standard of review? 2. Did the officer deny the applicants procedural fairness? 3. Did the officer err in her assessment of the evidence?

Applicant’s Written Submissions 19 The applicants submit that given the importance of having the international adoption approved, a high level of procedural fairness is required. Issues of procedural fairness and natural justice are questions of law that are reviewable on a correctness standard. 20 The applicants submit that it is well established that visa officers owe a duty of fairness towards applicants. The applicants highlight the factors that the Supreme Court of Canada specified in Baker v. Canada (Minister of Citizenship & Immigration), [1999] 2 S.C.R. 817, [1999] S.C.J. No. 39 (S.C.C.) for determining the content of the duty of fairness. 21 In applying the Baker above factors to this case and bearing in mind that it pertains to the adoption of a minor child, the applicants submit that 206 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

a high level of fairness and procedural protection is required in the officer’s decision making process. The applicants note that the officer’s role in adoption cases is the same as that of a citizenship judge and therefore, the officer performs a judicial function. The applicants submit that this Court has stated that a high level of procedural fairness is required of citizenship judges. 22 Further, the applicants note that the officer’s decision is final without any right of appeal. A new application would considerably lengthen the overall waiting time for family reunification. In addition, having been invited by the officer to make additional submissions, the applicants have a legitimate expectation that their submissions will be thoughtfully considered. 23 Having found that a high level of fairness is required in cases such as this, the applicants submit that the required level of fairness was not met in this case. 24 First and foremost, the applicants submit that the officer failed to properly consider the evidence. The applicants note that the correspondence from CARA stated that the NOC was not approved by the Com- mittee and was therefore not issued by CARA. From this, the officer concluded that the NOC was fraudulent. However, the applicants submit that the CARA correspondence could also be interpreted in other ways. For example, the NOC may not have been issued in accordance with normal procedures of Committee approval or a CARA employee may have issued it in error or fraudulently. As these other possibilities exist and as Mr. Bhagria provided a different version of the facts, the officer should have followed up with CARA to obtain clarification and/or test the applicants’ credibility. 25 The applicants also submit that there was no evidence in the officer’s file that she gave any consideration to Mr. Bhagria’s submissions. In support, the applicants note that there was no analysis, weighing of the evidence or follow up with either CARA or the applicants. As such, the applicants submit that the officer did not properly consider Mr. Bhagria’s additional submissions. 26 In addition, or in the alternative, the applicants submit that the officer should have granted Mr. Bhagria an opportunity to present his submissions in person to the officer. The applicants note that there is jurisprudence suggesting that an applicant must be granted an opportunity to make oral submissions where a decision turns on credibility or where there are doubts as to an applicant’s evidence. The applicants submit that Bhagria v. Canada (MCI) John A. O’Keefe J. 207

in this case, any finding that a fraudulent document was provided by or on behalf of the applicants depended on their credibility. Such a matter would be best tested by way of an oral examination. It is thus unfair to dismiss their explanation without a testing of their credibility. 27 Finally, the applicants submit that they did not prepare or arrange for the preparation of any fraudulent documents purportedly from CARA or otherwise.

Respondent’s Written Submissions 28 The respondent submits that the appropriate standard of review is correctness for questions of procedural fairness and reasonableness for questions of interpretation and the weighing of evidence. 29 The respondent submits that the officer properly considered the applicants’ evidence. 30 First, the respondent addresses the applicants’ submission that the officer’s use of the word fraudulent in characterizing the NOC is indicative of a finding of adverse credibility. The respondent notes that the officer did not allege in her decision or in the procedural fairness letter that the applicants had themselves committed fraud, nor that her ultimate decision was based on a finding of adverse credibility. Rather, the officer’s decision merely indicated that the NOC was not verified by its purported source and was therefore insufficient to establish that the adoption was conducted in accordance with India’s laws. As CARA indicated that the NOC was not authenticated by it, it was reasonable for the officer to characterize it as fraudulent as it was lacking in authority, not genuine and not certified by CARA. The respondent also notes that the applicants failed to establish that their adoption was in accordance with the laws of India as the officer never received an authenticated NOC from CARA. 31 Second, the respondent submits that the officer properly considered the additional submissions. The respondent highlights that the standard for adequacy of reasons of administrative officers is not as stringent as that for administrative tribunals. Further, absent clear and convincing evidence to the contrary, decision makers are presumed to have considered all the evidence before them. In this case, there was no evidence to suggest that the officer did not consider the additional submissions. In fact, the officer’s decision itself specifically refers to these submissions. The respondent submits that the officer therefore properly considered the applicants’ submissions. 208 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

32 The respondent then addresses the issue of procedural fairness raised by the applicants. The respondent submits that the officer did not err by not scheduling an interview. The respondent notes that there is no basis in law for the applicants’ expectation for a meeting with the officer when Mr. Bhagria visited the Canadian High Commission in New Delhi without any prior scheduled appointment. 33 The respondent also submits that no error was committed by the officer in not scheduling an interview or suggesting an alternative meeting time. The content of the duty of fairness in the context of the circumstances of this case did not include a duty to interview or schedule an interview with the applicants. The respondent also notes that this Court has recognized that visa officers are not always required to hold oral hearings. The crucial question in determining whether an oral hearing was required is whether the applicants, in the absence of an oral hearing, were afforded a meaningful opportunity to present evidence and to have that evidence fully and fairly considered. The respondent submits that the applicants were fully afforded this opportunity in this case. 34 The respondent notes the applicants’ submission that they were not given a meaningful opportunity to present evidence on the legality of the adoption in accordance with Indian laws. Pursuant to subparagraph 5.1(3)(b)(i) of the Citizenship Regulations, SOR/93-246, a valid NOC is required from CARA to confirm that an adoption is in accordance with the laws of India. This evidence must be in writing. Thus, without a valid NOC from CARA, an interview or oral hearing would not have helped the applicants satisfy the officer that the adoption was in accordance with Indian laws. Therefore, no breach of procedural fairness arose from the officer not suggesting alternative times for the applicants to meet with her. 35 Further, the respondent submits that the officer was not required to follow-up with CARA. Rather, the applicants bore the onus of establishing that their application met citizenship requirements. In support, the respondent highlights jurisprudence that states that when applying for citizenship, applicants bear the onus of establishing that they have met the requirements of both the Citizenship Act and the Citizenship Regulations. 36 The respondent also submits that the officer was not required to hold the applicants’ citizenship application in abeyance. In fact, such a requirement would be unreasonable and would frustrate the expeditious processing of applications. The respondent notes that Mr. Bhagria did not Bhagria v. Canada (MCI) John A. O’Keefe J. 209

provide the officer with any clear timeline within which CARA’s alleged NOC reconsideration would take place. Therefore, the respondent submits that the officer did not err in not holding the principal applicant’s citizenship application in abeyance until the applicants’ issues were re- solved with CARA. 37 Finally, the respondent submits that in the event that this Court allows this application, this Court should not give the respondent specific directions to grant the citizenship application. Such directions are not warranted in the circumstances of this case.

Analysis and Decision Issue 1 What is the appropriate standard of review? 38 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). 39 A decision under section 5.1 of the Citizenship Act is fact-driven and rendered by officers with specialized expertise in the field. These decisions warrant a high level of deference from this Court and therefore attract a reasonableness standard of review. This Court may however intervene if it finds that the officer erred by ignoring evidence or by drawing unreasonable inferences from the evidence (see Jardine v. Canada (Minister of Citizenship & Immigration), 2011 FC 565, [2011] F.C.J. No. 782 (F.C.) at paragraphs 16 to 18). 40 In reviewing the officer’s decision on a standard of reasonableness, the Court should not intervene unless the officer came to a conclusion that is not transparent, justifiable and intelligible and within the range of acceptable outcomes based on the evidence before it (see Dunsmuir above, at paragraph 47). 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 (see Khosa v. Canada (Minister of Citizenship & Immigration), 2009 SCC 12, [2009] S.C.J. No. 12 (S.C.C.) at paragraphs 59 and 61). 41 Conversely, issues of procedural fairness are reviewable on a correctness standard (see Malik v. Canada (Minister of Citizenship & Immigra- tion), 2009 FC 1283, [2009] F.C.J. No. 1643 (F.C.) at paragraph 23; and 210 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

Khosa above, at paragraph 43). No deference is owed to the officer on this issue (see Dunsmuir above, at paragraph 50).

Issue 2 Did the officer deny the applicants procedural fairness? 42 This case revolves around section 5.1 of the Citizenship Act, which was enacted relatively recently. As such, it has received little treatment in the jurisprudence to date. Parliament’s intent in enacting this provision was to reduce citizenship eligibility distinctions between adopted foreign children and children born abroad to Canadian parents. Prior to its enactment, adopted foreign children were first required to apply for and obtain permanent residence, after which they could apply for Canadian citizenship. Conversely, children born abroad to Canadian parents were auto- matically granted Canadian citizenship. 43 When the Bill introducing this provision was discussed, Members of Parliament described its intent as the promotion of fairness, the treatment of children of Canadian parents with equity and equality and the seeing of new families constituted as supportively and as quickly as possible. Monte Solberg, the Minister of Citizenship and Immigration and the sponsor of Bill C-14, explained at the House of Commons Debate: Indeed we are supporting families and their newest members, their adopted children, children we want to see protected, children we want to welcome, children who we want to feel at home here in Canada. [emphasis added] 44 Mr. Solberg also noted that this provision incorporated important safeguards to ensure that the best interests of the child were met, that a proper home assessment was made, that the birth parents consented to the adoption, that no person would achieve unwarranted gain from the adoption and that a genuine parent-child relationship existed. Respecting the laws of the country from which the child was adopted was also described as an important obligation. It is the application of this obligation that is at issue here. 45 Subparagraph 5.1(3)(b)(i) of the Citizenship Regulations implements this obligation to respect the adoption laws of other countries. This provision states: The following factors are to be considered in determining whether the requirements of subsection 5.1(1) of the Act have been met in respect of the adoption of a person referred to in subsection (1): Bhagria v. Canada (MCI) John A. O’Keefe J. 211

[...]whether, in the case of a person who has been adopted outside Canada in a country that is a party to the Hague Convention on Adoption and whose intended destination at the time of the adoption is a province, [...] the competent authority of the country and of the province of the person’s intended destination have stated in writing that they approve the adoption as conforming to that Convention [...] [emphasis added] 46 As indicated, subparagraph 5.1(3)(b)(i) of the Citizenship Regulations requires officers to consider whether the competent authority of the country has “stated in writing that they approve the adoption”. 47 In this case, there was no dispute that the competent authority in India is CARA and that a written NOC for the principal applicant was origi- nally provided to the officer. However, the parties differ on their interpretations of CARA’s email response to the verification request of the NOC’s authenticity. CARA’s email response to this request was brief and merely stated: The NOC of DEVANSH (M) DOB 09.05.2010 was not approved by Committee and therefore was not issued by CARA. Hence the attached NOC is not authenticated and not verified by CARA. 48 The respondent submits that this response clearly indicates that the NOC was lacking in authority, not genuine and not certified by CARA. The officer therefore correctly deemed it fraudulent. Conversely, the applicants submit that as the officer deemed it fraudulent, she was essentially questioning their credibility. The officer was therefore required to hold an oral hearing, conduct an in-person interview with the applicants, and/or inquire further with CARA. By failing to do any of these, the applicants submit that the officer breached their procedural fairness rights. 49 Before delving into these two positions, it is notable that the parties agree that a high level of procedural fairness is required in this case. However, they differ on the content of that duty of fairness in this case. As little jurisprudence has developed on this provision, basic principles must be reviewed in determining the required content of the duty of fairness under this provision and in the specific circumstances of this case. 50 The basic principles relevant to the determination of the content of procedural fairness were discussed by Madam Justice L’Heureux-Dub´e in Baker above. At the outset, Madam Justice L’Heureux-Dub´e acknowledged that the content must be decided in the specific context of each 212 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

case (see Baker above, at paragraph 21). Madam Justice L’Heureux- Dubé emphasized that (see Baker above, at paragraph 22): [...] the purpose of the participatory rights contained within the duty of procedural fairness is to ensure that administrative decisions are made using a fair and open procedure, appropriate to the decision being made and its statutory, institutional, and social context, with an opportunity for those affected by the decision to put forward their views and evidence fully and have them considered by the decision- maker. 51 Madam Justice L’Heureux-Dubé then listed five non-exhaustive factors for determining the content of the duty of fairness (see Baker above, at paragraphs 23 to 28). In short, these factors are: 1. The nature of the decision and the decision making process; 2. The nature of the statutory scheme and the terms of the statute pursuant to which the body operates; 3. The importance of the decision to the individual(s) affected; 4. The legitimate expectations of the person(s) challenging the decision; and 5. The choices of procedure made by the agency itself. 52 On the first factor, Madam Justice L’Heureux-Dubé explained that the more the decision making process, the function and nature of the decision maker and the determinations made to reach a decision resemble judicial decision making, the more likely that procedural protections of a trial model will be required (see Baker above, at paragraph 23). The key is the nature of the issue that has to be determined, not the formal status of the decision maker (see Baker above, at paragraph 25). In this case, when exercising her power under section 5.1 of the Citizenship Act, the officer is making a citizenship determination on an adopted child. Thus, her role was similar to that of a citizenship judge, which entailed weighing evidence and the application of the law to the facts. As such, the officer played a judicial function in rendering her decision. 53 On the second factor, Madam Justice L’Heureux-Dubé explained in Baker above, that greater procedural protections will be required where there is no appeal procedure provided in the statute or when a decision is determinative of the issue (at paragraph 24). As indicated by this application, judicial review is available of the officer’s decision under section 5.1 of the Citizenship Act. However, there is no appeal right and the applicants correctly submitted that the judicial review process is much nar- Bhagria v. Canada (MCI) John A. O’Keefe J. 213

rower than an appeal. It is also notable that once an officer’s decision is rendered, a new application would be required, thus, further delaying family reunification. A further delay runs counter to Parliament’s intent in enacting this provision, which was to see new families constituted as supportively and as quickly as possible. 54 On the third factor, Madam Justice L’Heureux-Dubé explained in Baker above, that the more important the decision is to the lives of those affected and the greater the impact on them, the more stringent the procedural protections will be (at paragraph 25). This factor clearly works in the applicants’ favour as the officer’s decision has a great impact on the applicants’ lives. Thus, this factor also points towards greater procedural protections. 55 On the fourth factor, Madam Justice L’Heureux-Dubé explained in Baker above, that if an applicant has a legitimate expectation that a certain procedure will be followed, this procedure will be required by the duty of fairness (at paragraph 26). In this case, the applicants submit that as the officer provided them with thirty days to make additional submissions, the officer was required to thoughtfully consider any such submissions. Indeed, the officer is required to consider all the evidence before her, which includes any additional submissions made within the permitted thirty days. However, unlike the applicants’ submissions, there was no requirement that the file would be held open until matters were re- solved with CARA. No such indication was made in the officer’ procedural fairness letter. 56 Finally, on the fifth factor, Madam Justice L’Heureux-Dubé explained in Baker above, that the choices of procedure made by the decision maker should be respected, particularly when the statute allows the decision maker to choose its own procedures or when the decision maker has an expertise in determining what procedures are appropriate in the circumstances (at paragraph 27). Subparagraph 5.1(3)(b)(i) of the Citi- zenship Regulations clearly sets out a list of factors that the officer must consider in rendering a decision, thus, somewhat limiting flexibility in decision making. However, it is well recognized that immigration officers have expertise in immigration matters that generally attract deference from the Courts. Their choice of procedure in making their decision should thus generally be respected. 57 In summary, the first three Bakerabove, factors clearly point to strong procedural protections, whereas the last two factors suggest somewhat lesser procedural entitlements. With this analysis as a background, the 214 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

specific circumstances of this case must be reviewed to determine whether the necessary procedural fairness rights were granted to the applicants. 58 In this case, the officer clearly considered the original NOC and CARA’s response to the NOC verification request. However, upon receipt of CARA’s brief reply email, the officer did not inquire further with CARA. Nevertheless, the officer did send a procedural fairness letter to the applicants to notify them of CARA’s response and to provide them with thirty days to submit additional information. 59 Shortly after receiving this procedural fairness letter, Mr. Bhagria visited the CARA office to inquire about the NOC. He then proceeded to the Canadian High Commission where he spoke with Officer Keshub. After their discussion, Officer Keshub sent the officer an email summa- rizing Mr. Bhagria’s concerns. Officer Keshub noted Mr. Bhagria’s statement that he had spoken with Ms. Singh at the CARA office. Ms. Singh had informed him that the NOC was issued in error as it was in fact intended for another child, other than the principal applicant. However, Officer Keshub noted that CARA’s reply email to the NOC verification inquiry did not indicate that CARA issued the NOC in error. Rather, it had said that the NOC was not authentic and not issued by CARA. Later, when Mr. Bhagria returned to the Canadian High Commission and requested a meeting with the officer, the officer denied his request. 60 I find that these events, coupled with the relatively strong procedural protections mandated by the Baker above, factors as well as Parliament’s intent in enacting section 5.1 of the Citizenship Act, raise serious questions about the sufficiency of procedural fairness granted to the applicants in this case. At the outset, I repeat Parliament’s intent in enacting this provision which was to ensure that families are constituted as supportively and as quickly as possible. 61 I then note the home study report completed by the provincial Mani- toba government, which provided glowing favourable recommendations of the applicant couple as adoptive parents. With regards to India’s own adoption laws, it is notable that a deed of adoption from the Roorkee Court in India was issued to the applicants and was before the officer. There was no suggestion that this deed was fraudulent or invalid. Fur- ther, upon receipt of the procedural fairness letter, Mr. Bhagria immediately contacted CARA and thereafter visited the Canadian High Com- mission on two separate occasions to address the issues raised. As such, I Bhagria v. Canada (MCI) John A. O’Keefe J. 215

find that Mr. Bhagria acted swiftly and proactively to address the officer’s concerns. The same cannot be said for the officer’s actions. 62 Recalling the importance that Canada places on family reunification, I find that the procedural fairness required in the specific circumstances of this case demanded greater attention and effort by the officer to verify CARA’s treatment of the principal applicant’s file. 63 I question Officer Keshub’s finding that CARA’s brief email did not support Mr. Bhagria’s allegation. Although CARA’s email did not specifically state that it issued the NOC in error, it did say that the Commit- tee had not approved the principal applicant’s NOC. If, as Mr. Bhagria stated, the NOC had been incorrectly issued for the principal applicant when it was in fact intended for another child, then the Committee would not have approved the principal applicant’s NOC. Thus, there are two possible interpretations of CARA’s email: one being that the NOC was fraudulent and the other being that the NOC was mistakenly issued by CARA. Without inquiring further, the officer’s understanding was limited to Officer Keshub’s interpretation as provided in the email. As such, the applicants were denied full and fair consideration of their evidence by the officer. 64 Faced with a clear explanation that differed from the officer’s ultimate finding and in light of Parliament’s intent in enacting section 5.1 of the Citizenship Act, I find that the content of the procedural fairness in this case required that the officer, at a minimum, inquire further with CARA about the NOC at issue. Anything less would defeat Parliament’s objective to constitute families as supportively and quickly as possible. 65 Because of my finding with respect to procedural fairness, I need not deal with the remaining issue. 66 For the above reasons, the applicant’s application for judicial review is allowed. 67 The applicant should be allowed sufficient time to obtain the NOC. 68 The applicant requested costs in his written argument but based on the facts of the case, I am not prepared to make an award of costs. The problem arose as a result of CARA’s error. 216 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

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

Annex Relevant Statutory Provisions Federal Courts Act, RSC 1985, c F-7 18.1 (1) An application for judicial review may be made by the At- torney General of Canada or by anyone directly affected by the matter in respect of which relief is sought. (2) An application for judicial review in respect of a decision or an order of a federal board, commission or other tribunal shall be made within 30 days after the time the decision or order was first communicated by the federal board, commission or other tribunal to the office of the Deputy Attorney General of Canada or to the party directly affected by it, or within any further time that a judge of the Federal Court may fix or allow before or after the end of those 30 days. (3) On an application for judicial review, the Federal Court may (a) order a federal board, commission or other tribunal to do any act or thing it has unlawfully failed or refused to do or has unreasonably delayed in doing; or (b) declare invalid or unlawful, or quash, set aside or set aside and refer back for determination in accordance with such directions as it considers to be appropriate, prohibit or restrain, a decision, order, act or proceeding of a federal board, commission or other tribunal. (4) The Federal Court may grant relief under subsection (3) if it is satisfied that the federal board, commission or other tribunal (a) acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction; (b) failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe; (c) erred in law in making a decision or an order, whether or not the error appears on the face of the record; Bhagria v. Canada (MCI) John A. O’Keefe J. 217

(d) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it; (e) acted, or failed to act, by reason of fraud or perjured evidence; or (f) acted in any other way that was contrary to law. (5) If the sole ground for relief established on an application for judicial review is a defect in form or a technical irregularity, the Federal Court may (a) refuse the relief if it finds that no substantial wrong or miscar- riage of justice has occurred; and (b) in the case of a defect in form or a technical irregularity in a decision or an order, make an order validating the decision or order, to have effect from any time and on any terms that it considers appropriate. Citizenship Act, RSC 1985, c C-29 5.1 (1) Subject to subsection (3), the Minister shall on application grant citizenship to a person who was adopted by a citizen on or after January 1, 1947 while the person was a minor child if the adoption (a) was in the best interests of the child; (b) created a genuine relationship of parent and child; (c) was in accordance with the laws of the place where the adoption took place and the laws of the country of residence of the adopting citizen; and (d) was not entered into primarily for the purpose of acquiring a status or privilege in relation to immigration or citizenship. Citizenship Regulations, SOR93-246 5.1(3) The following factors are to be considered in determining whether the requirements of subsection 5.1(1) of the Act have been met in respect of the adoption of a person referred to in subsection (1): ... (b) whether, in the case of a person who has been adopted outside Canada in a country that is a party to the Hague Convention on Adoption and whose intended destination at the time of the adoption is a province, (i) the competent authority of the country and of the province of the person’s intended destination have 218 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

stated in writing that they approve the adoption as conforming to that Convention, ... Kaindl v. Canada (MCI) 219

[Indexed as: Kaindl v. Canada (Minister of Citizenship & Immigration)] Erich Kaindl, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: T-1588-10 2012 FC 487 Donald J. Rennie J. Heard: February 22, 2012 Judgment: April 25, 2012 Immigration and citizenship –––– Citizenship — Grant of citizenship — Re- quirements for grant of citizenship — Residence in Canada — Physical presence test — Time in residence –––– Applicant moved from Austria to Can- ada with his wife and children at request of his employer — Employer closed its Canadian operation, and applicant began commuting between workplace in Aus- tria and his family in Canada — Applicant and his family members applied for Canadian citizenship — Applicant’s family members were granted citizenship, but applicant was refused citizenship based on finding that he fell short of 1,095 days of physical presence required during relevant period — Applicant appealed — Appeal dismissed — Citizenship judge committed no error of law in adopting test of physical presence in Canada to determine residency — Error made by citizenship judge in calculating residency period was immaterial, since applicant was still only resident in Canada for 224 days during correct required period — Citizenship judge had very complete picture of applicant’s circumstances despite fact that his application was separated, administratively, from that of his wife and children — This conclusion was supported by reasons for decision and by fact that applicant testified before citizenship judge — Fact that reasons for decision did not mention that applicant’s wife and children were now Canadian citizens did not render decision unreasonable — Citizenship judge did not err in exercise of his discretion in failing to consider best interests of applicant’s children. Cases considered by Donald J. Rennie J.: Baker v. Canada (Minister of Citizenship & Immigration) (1999), 1 Imm. L.R. (3d) 1, [1999] 2 S.C.R. 817, 14 Admin. L.R. (3d) 173, 174 D.L.R. (4th) 193, 1999 CarswellNat 1124, 1999 CarswellNat 1125, 243 N.R. 22, [1999] S.C.J. No. 39 (S.C.C.) — considered Martinez-Caro v. Canada (Minister of Citizenship & Immigration) (2011), 2011 CF 640, 2011 CarswellNat 3135, 2011 CarswellNat 2281, 2011 FC 640, 98 220 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

Imm. L.R. (3d) 288, 391 F.T.R. 138, [2011] F.C.J. No. 881, [2011] A.C.F. No. 881 (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.) — considered Pourghasemi, Re (1993), 1993 CarswellNat 77, 19 Imm. L.R. (2d) 259, 62 F.T.R. 122, [1993] F.C.J. No. 232 (Fed. T.D.) — followed Statutes considered: Citizenship Act, R.S.C. 1985, c. C-29 Generally — referred to s. 5(1)(c) — considered s. 5(3) — considered s. 5(4) — considered s. 14(5) — pursuant to Rules considered: Federal Courts Rules, SOR/98-106 Generally — referred to

APPEAL by permanent resident of Canada from decision rejecting his application for Canadian citizenship.

Mr. Erich Kaindl, for Applicant Mr. David Aaron, for Respondent

Donald J. Rennie J.:

1 The applicant appeals a decision of a Citizenship Court judge dismissing his application for Canadian citizenship. His appeal is brought pursuant to subsection 14(5) of the Citizenship Act, RS, 1985, c C-29 (the Act), and is governed by the Federal Courts Rules (SOR/98-106) pertaining to applications; hence his status as applicant and the Min- ister’s as respondent. For the reasons that follow this appeal is dismissed. Kaindl v. Canada (MCI) Donald J. Rennie J. 221

Facts 2 The applicant, Mr. Erich Kaindl, together with his wife and five children arrived in Canada on November 1, 1998 at the request of his employer, Siemens, to take on responsibilities for Siemens’ Canadian operations. Two years later, the significant global downturn in the technology sector and the economy generally, resulted in the decision by Siemens to close its Canadian operations. After two years of searching for work in Canada Mr. Kaindl accepted the offer of his employer to take on responsibilities for Siemens back in Austria. He thus began a long period of what was, in effect, commuting between his workplace in Austria and his family, in Kanata, Ontario. His family remained in Canada, his children attended the local high school and universities. They are now all, save Mr. Kaindl, Canadian citizens, successfully integrated into and fully par- ticipating as active members of Canadian society. Mr. Kaindl’s wife is the principal of the German Language School of Ottawa; three of his five children are in university, and two are nearing the end of high school. 3 Mr. Kaindl became a Canadian permanent resident on November 6, 2003. He applied for Canadian citizenship on September 1, 2008. On September 15, 2010 the Minister communicated to the applicant that his citizenship application had been refused because he had not met the residence requirement under paragraph 5(1)(c) of the Act. 4 The applicant conceded before the Citizenship Judge that it was his personal choice to accept the position in Austria; however, he argues that his absence from Canada was driven by economic necessity. His choice was social assistance or to accept the position in Siemens. He said he made a choice that was reasonable and in the interests of Canada as he would not depend on employment insurance and social assistance. 5 The Citizenship Judge applied the decision of this Court in Pourghasemi, Re, [1993] F.C.J. No. 232 (Fed. T.D.) in arriving at his decision not to grant the applicant Canadian citizenship. The Citizenship Judge found that the applicant fell short of the 1,095 days required under the Act in order to qualify for citizenship. The applicant had only 224 days of physical presence in Canada. He had been outside Canada for 871 days. The Citizenship Judge also found that a favourable exercise of discretion under sections 5(3) and (4) of the Act was unwarranted. 6 The applicant is correct in noting that there was a miscalculation in the setting of the frame of reference for the calculation of the residency period. The Citizenship Judge extended the residency period by three months from September 1, 2008 to December 12, 2008, resulting in the 222 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

an incorrect total residency requirement of 1236 days. However, the error is immaterial. Adjusting for the error in setting the dates for the four year period, the applicant was still only resident in Canada only 224 days during the required period. This does not warrant setting aside the decision.

Standard of Review and Issue 7 The issue in this case is whether the decision of the Citizenship Judge refusing the applicant’s citizenship application is correct in law per New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9, [2008] 1 S.C.R. 190 (S.C.C.) and whether the decision not to recommend that the Minister give favourable consideration to the applicant’s application for citizenship is a reasonable exercise of discretion.

Analysis 8 In Martinez-Caro v. Canada (Minister of Citizenship & Immigration), 2011 FC 640 (F.C.) I concluded that it was Parliament’s intention that residency was to be determined on the basis of physical presence in Can- ada: It is my opinion that Re Pourghasemi is the interpretation that reflects the true meaning, intent and spirit of subsection 5(1)(c) of the Act.... For this reason it cannot be said that the Citizenship Judge erred in applying the Re Pourghasemi test. Furthermore, the Citizen- ship Judge correctly applied the Re Pourghasemi test in determining that a shortfall of 771 days prevented a finding that 1,095 days of physical presence in Canada had been accumulated. 9 There, as here, the applicant was absent from Canada for a considerable period of time. In light of this, and in light of my view that Pourghasemi is the interpretation that reflects the intention of Parliament as set forth in section 5(1)(c) of the Act, the Citizenship Judge committed no error of law in adopting the test of physical presence in Canada to determine residency. 10 The applicant does not challenge the correctness of the test; rather, he contends that had the error in the calculation of the residency period not been made, the outcome might have been different. He contends that the Citizenship Judge drew an adverse inference as to his credibility and that this, in turn, affected his approach to the exercise of discretion to make a favourable recommendation to the Minister that, in all the circumstances, citizenship be granted. Kaindl v. Canada (MCI) Donald J. Rennie J. 223

11 There is nothing in the decision of the Citizenship Judge which suggests that adverse inferences were drawn as to the applicant’s credibility. Indeed, the contrary seems to be the case. The Citizenship Judge accepted the facts as laid out before him by Mr. Kaindl and there is no indication, direct or indirect, that the he disbelieved or discounted the applicant’s evidence for any reason, let alone for reasons related to the Citizenship Judge’s error in setting the period of residency. 12 Mr. Kaindl also points to the fact that the Department of Citizenship and Immigration separated, administratively, his application from that of his wife and children when it became apparent that they had received citizenship. Mr. Kaindl argues that, in consequence, the Citizenship Judge did not have the full context of evidence before him and was thus unable to properly exercise his discretion under sections 5(3) and (4) of the Act to make a recommendation to the Minister that he favourably consider granting citizenship to Mr. Kaindl. 13 Attractive as this argument is on its face, it does not fit well with the record. The applicant testified before the Citizenship Judge, and the decision indicates that the Citizenship Judge had before him a very complete picture of Mr. Kaindl’s circumstances. The decision notes, for example, Mr. Kaindl’s participation in the church choir, their home ownership, the fact that the family is well established financially and the fact that the applicant’s wife and children continue to live in the home in Kanata. The Citizenship Judge also situates these findings of fact in context of the difficult choice that Mr. Kaindl had to make. 14 While it is true that the decision does not refer to the fact that Mr. Kaindl’s wife and children are now Canadian citizens, there is no requirement that a decision maker recite all of the evidence before them. The fact that the other family members are Canadian citizens and that he is married to a Canadian wife is not so compelling or determinative a consideration that the failure to mention it expressly in the reasons ren- ders the decision unreasonable. 15 Finally, the applicant argues that the Citizenship Judge erred in the exercise of his discretion in failing to consider the best interests of the children. The applicant relies on the principles of Baker v. Canada (Minister of Citizenship & Immigration), [1999] 2 S.C.R. 817 (S.C.C.) in support of this proposition and notes that he is the parent of five Cana- dian children. 16 There is no support for the proposition that in considering the grant of citizenship, the best interests of Canadian children are to be taken into 224 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

account. The guidance, support and direction integral to parenting can be exercised regardless of status as a permanent resident, or presence in Canada on a work or visitor’s visa. The situation is far removed from that where parents are being separated from Canadian children, and returned to their country of origin with scant prospect of return or re-entry into Canada. 17 While I am sympathetic to the applicant’s situation, the Citizenship Judge did not err in reaching the conclusion that he did. For that reason the appeal must be dismissed. Nothing in the Act prevents the applicant from re-applying for Canadian citizenship when he has accumulated the number of days required to satisfy the requirements set out in the Act.

Judgment THIS COURT’S JUDGMENT is that the appeal is dismissed. There is no order as to costs. Appeal dismissed.

Annex A

Citizenship Act (R.S.C., 1985, c. C-29), Section 5(1)(c) 5. (1) The Minister shall grant citizenship to any person who ... (c) is a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act, and has, within the four years immediately preceding the date of his or her application, accumulated at least three years of residence in Canada calculated in the following manner: (i) for every day during which the person was resident in Canada before his lawful admission to Canada for permanent residence the person shall be deemed to have accumulated one-half of a day of residence, and (ii) for every day during which the person was resident in Canada after his lawful admission to Canada for permanent residence the person shall be deemed to have accumulated one day of residence; ... Citizenship Act (R.S.C., 1985, c. C-29), Sections 5(3) and (4) (3) The Minister may, in his discretion, waive on compassionate grounds, Kaindl v. Canada (MCI) Donald J. Rennie J. 225

(a) in the case of any person, the requirements of paragraph (1)(d) or (e); (b) in the case of a minor, the requirement respecting age set out in paragraph (1)(b), the requirement respecting length of residence in Canada set out in paragraph (1)(c) or the requirement to take the oath of citizenship; and (c) in the case of any person who is prevented from understanding the significance of taking the oath of citizenship by reason of a mental disability, the requirement to take the oath. (4) In order to alleviate cases of special and unusual hardship or to reward services of an exceptional value to Canada, and notwithstanding any other provision of this Act, the Governor in Council may, in his discretion, direct the Minister to grant citizenship to any person and, where such a direction is made, the Minister shall forthwith grant citizenship to the person named in the direction. 226 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

[Indexed as: Canada (Minister of Citizenship & Immigration) v. Dhillon] The Minister of Citizenship and Immigration, Applicant and Rajinder Singh Dhillon, Respondent Federal Court Docket: IMM-6888-11 2012 FC 726 Judith A. Snider J. Heard: May 3, 2012 Judgment: June 11, 2012 Immigration and citizenship –––– Exclusion and removal — Inadmissible classes — Organized crime –––– Under s. 37(1)(b) of Immigration and Refugee Protection Act, person is inadmissible for engaging, in context of transnational crime, in activities “such as” people smuggling, trafficking in persons, or money laundering — Person was convicted in United States of conspiracy to import over 50 kg. of marijuana — Person was found inadmissible on grounds of serious criminality but not organized criminality — Minister’s appeal of latter finding was dismissed by board — Minister applied for judicial review — Applica- tion granted — Standard of review was correctness because issue was of general legal importance — Decision was incorrect but in any event was unreasonable — Phrase “such as” suggested example rather than limit — Wording of s. 37(1)(b) was inconclusive, but contextual analysis led to conclusion that drug smuggling was included — Intention of Parliament was to address criminality seriously to protect security of Canadians — Act was to be interpreted to com- ply with Canada’s treaty obligations in respect of transnational organized crime including drug smuggling. Cases considered by Judith A. Snider J.: Canada (Attorney General) v. Mowat (2011), 93 C.C.E.L. (3d) 1, D.T.E. 2011T- 708, 337 D.L.R. (4th) 385, 26 Admin. L.R. (5th) 1, 2011 CarswellNat 4190, 2011 CarswellNat 4191, 2011 SCC 53, 422 N.R. 248, (sub nom. C.H.R.C. v. Canada (A.G.)) 2011 C.L.L.C. 230-043, (sub nom. Canada (Canadian Human Rights Commission) v. Canada (Attorney General)) [2011] 3 S.C.R. 471, [2011] S.C.J. No. 53, [2011] A.C.S. No. 53 (S.C.C.) — considered Canada Trustco Mortgage Co. v. R. (2005), (sub nom. Canada Trustco Mortgage Co. v. Canada) 2005 D.T.C. 5523 (Eng.), (sub nom. Hypoth`eques Trustco Canada v. Canada) 2005 D.T.C. 5547 (Fr.), [2005] 5 C.T.C. 215, 2005 SCC 54, (sub nom. Minister of National Revenue v. Canada Trustco Mortgage Co.) 340 N.R. 1, 2005 CarswellNat 3212, 2005 CarswellNat 3213, Canada (MCI) v. Dhillon 227

259 D.L.R. (4th) 193, [2005] 2 S.C.R. 601, [2005] S.C.J. No. 56 (S.C.C.) — followed Celgene Corp. v. Canada (Attorney General) (2011), 2011 CarswellNat 34, 2011 CarswellNat 35, 2011 SCC 1, 327 D.L.R. (4th) 513, 410 N.R. 127, 14 Admin. L.R. (5th) 1, [2011] 1 S.C.R. 3, 89 C.P.R. (4th) 1, [2011] S.C.J. No. 1 (S.C.C.) — considered de Guzman v. Canada (Minister of Citizenship & Immigration) (2005), 42 Ad- min. L.R. (4th) 234, 2005 FCA 436, 2005 CarswellNat 4381, 51 Imm. L.R. (3d) 17, 262 D.L.R. (4th) 13, 137 C.R.R. (2d) 20, [2006] 3 F.C.R. 655, 345 N.R. 73, 2005 CarswellNat 6009, 139 C.R.R. (2d) 376 (note), [2005] F.C.J. No. 2119 (F.C.A.) — referred to Hadwani v. Canada (Minister of Citizenship & Immigration) (2011), 2011 Car- swellNat 2806, 2011 FC 888, 2011 CF 888, 2011 CarswellNat 3965, 2 Imm. L.R. (4th) 53, 394 F.T.R. 156, [2011] F.C.J. No. 1117, [2011] A.C.F. No. 1117 (F.C.) — considered Liyanagamage v. Canada (Secretary of State) (1994), (sub nom. Liyanagamage v. Canada (Minister of Citizenship & Immigration)) 176 N.R. 4, 1994 Car- swellNat 1327, [1994] F.C.J. No. 1637 (Fed. C.A.) — followed Medovarski v. Canada (Minister of Citizenship & Immigration) (2005), [2005] 2 S.C.R. 539, 2005 SCC 51, 2005 CarswellNat 2943, 2005 CarswellNat 2944, 258 D.L.R. (4th) 193, 135 C.R.R. (2d) 1, 50 Imm. L.R. (3d) 1, 339 N.R. 1, EYB 2005-95306, [2005] S.C.J. No. 31 (S.C.C.) — considered National Bank of Greece (Canada) c. Katsikonouris (1990), 1990 CarswellQue 118, (sub nom. National Bank of Greece (Canada) v. Katsikonouris) 74 D.L.R. (4th) 197, (sub nom. National Bank of Greece (Canada) v. Katsiko- nouris) [1990] 2 S.C.R. 1029, (sub nom. Panzera c. Simcoe & Eri´´ e Cie d’assurance) 50 C.C.L.I. 1, (sub nom. Panzera v. Simcoe & Erie Cie d’assurance) [1990] I.L.R. 1-2663, (sub nom. National Bank of Greece (Canada) c. Simcoe & Erie General Assurance Co.) 115 N.R. 42, (sub nom. National Bank of Greece (Canada) c. Simcoe & Erie General Assurance Co.) 32 Q.A.C. 25, (sub nom. Panzera c. Simcoe & Eri´´ e Cie d’assurance) [1990] R.D.I. 715, 1990 CarswellQue 84, EYB 1990-67809, [1990] S.C.J. No. 95 (S.C.C.) — considered Rizzo & Rizzo Shoes Ltd., Re (1998), 1998 CarswellOnt 1, 1998 CarswellOnt 2, 50 C.B.R. (3d) 163, [1998] 1 S.C.R. 27, 33 C.C.E.L. (2d) 173, 154 D.L.R. (4th) 193, 36 O.R. (3d) 418 (headnote only), (sub nom. Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re) 221 N.R. 241, (sub nom. Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re) 106 O.A.C. 1, (sub nom. Adrien v. Ontario Ministry of La- bour) 98 C.L.L.C. 210-006, [1998] S.C.J. No. 2 (S.C.C.) — followed Sidhu c. Canada (Ministre de la S´ecurit´e publique et de la Protection civile) (April 18, 2011), Doc. VB0-00880; 3552-1972, [2011] I.A.D.D. No. 1288 (Imm. & Ref. Bd. (App. Div.)) — considered 228 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

Sittampalam v. Canada (Minister of Citizenship & Immigration) (2006), 56 Imm. L.R. (3d) 161, 2006 CarswellNat 5109, 2006 CarswellNat 3236, 2006 FCA 326, 272 D.L.R. (4th) 1, [2007] 3 F.C.R. 198, 2006 CAF 326, 354 N.R. 34, [2006] F.C.J. No. 1512 (F.C.A.) — considered United Taxi Drivers’ Fellowship of Southern Alberta v. Calgary (City) (2004), 46 M.P.L.R. (3d) 1, 236 D.L.R. (4th) 385, [2004] 7 W.W.R. 603, 346 A.R. 4, 320 W.A.C. 4, 318 N.R. 170, 18 R.P.R. (4th) 1, [2004] 1 S.C.R. 485, 2004 CarswellAlta 355, 2004 CarswellAlta 356, 2004 SCC 19, 26 Alta. L.R. (4th) 1, 12 Admin. L.R. (4th) 1, 50 M.V.R. (4th) 1, [2004] S.C.J. No. 19, REJB 2004-55539 (S.C.C.) — referred to Varela v. Canada (Minister of Citizenship & Immigration) (2009), 2009 FCA 145, 2009 CarswellNat 2726, 2009 CAF 145, 80 Imm. L.R. (3d) 1, [2010] 1 F.C.R. 129, 2009 CarswellNat 1228, 391 N.R. 366, [2009] F.C.J. No. 549 (F.C.A.) — referred to Zazai v. Canada (Minister of Citizenship & Immigration) (2004), 318 N.R. 365, (sub nom. Canada (Minister of Citizenship & Immigration) v. Zazai) 247 F.T.R. 320 (note), 2004 CAF 89, 2004 FCA 89, 2004 CarswellNat 544, 36 Imm. L.R. (3d) 167, 2004 CarswellNat 4792, [2004] F.C.J. No. 368 (F.C.A.) — referred to Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Generally — referred to s. 3(1)(i) — considered s. 3(3) — considered s. 3(3)(a) — considered s. 3(3)(b) — considered s. 3(3)(c) — considered s. 3(3)(f) — considered s. 34 — referred to ss. 34-37 — considered s. 35 — considered s. 36 — considered s. 36(1)(a) — referred to s. 36(1)(b) — considered s. 37 — considered s. 37(1)(a) — considered s. 37(1)(b) — considered s. 63(3) — considered s. 64(1) — considered s. 64(2) — referred to s. 67(1)(c) — considered Canada (MCI) v. Dhillon Judith A. Snider J. 229

Treaties considered: United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988, C.T.S. 1990/42; 28 I.L.M. 493 Generally — referred to United Nations Convention against Transnational Organized Crime, G.A. Res. 55/25; 40 I.L.M. 335 Generally — referred to

APPLICATION by Minister of Citizenship and Immigration for judicial review of decision of Immigration and Refugee Board dismissing its appeal on finding of inadmissibility.

Ms Jennifer Dagsvik, for Applicant Mr. Mir Huculak, for Respondent

Judith A. Snider J.: I. Introduction 1 Mr. Dhillon, a citizen of India, is a permanent resident of Canada. In October 2003, Mr. Dhillon and another man carried four hockey bags filled with 78.55 kg of marijuana from Canada into the United States. In December 2003, Mr. Dhillon pleaded guilty in Washington State to conspiracy to import marijuana over 50 kg; he was convicted in March 2004 and sentenced to nine months imprisonment and three years supervised release. Upon completion of his sentence in the United Sates, he was deported to Canada, where he faced allegations that he was inadmissible to Canada. 2 In a decision dated February 18, 2010 (the ID Decision), a member of the Immigration and Refugee Board, Immigration Division (ID) concluded that Mr. Dhillon was inadmissible to Canada for serious criminality under s. 36(1)(b) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA], but not inadmissible under s. 37(1)(b) of IRPA in respect of organized crime. 3 Both Mr. Dhillon and the Minister of Citizenship and Immigration (Minister) appealed the ID Decision to a panel of the Immigration and Refugee Board, Immigration Appeal Division (IAD). In a decision dated September 16, 2011 (the IAD Decision), the IAD dismissed the appeal of the Minister from the ID Decision. Stated differently, the IAD concluded that Mr. Dhillon was not inadmissible to Canada under s. 37(1)(b) of IRPA. The basis of the IAD Decision was that drug smuggling did not constitute a crime included in s. 37(1)(b). 230 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

4 In this application for judicial review, the Minister seeks to overturn the IAD Decision.

II. Issues 5 This application raises one issue. Specifically, can the IAD’s conclusion that Mr. Dhillon is not inadmissible under s. 37(1)(b) of IRPA for having been convicted of conspiracy to import marijuana into the United States withstand scrutiny on the applicable standard of review? 6 A preliminary issue is for this Court to establish the applicable standard of review. Is the IAD’s interpretation of s. 37(1)(b) of IRPA reviewable on a standard of reasonableness or correctness?

III. Statutory Context 7 I begin with an overview of the relevant statutory provisions. 8 Sections 36 and 37 of IRPA establish the two bases of inadmissibility that are relevant on this application. Section 36 describes the circumstances in which a permanent resident or a foreign national is inadmissible on grounds of serious criminality or criminality. In summary form relevant to this application, s. 36(1)(b) provides that a person is inadmissible on grounds of serious criminality for “having been convicted of an offence outside Canada that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years”. There is no dispute that Mr. Dhillon falls under this provision. 9 Section 37 establishes that an individual may also be found inadmissible on the basis of organized criminality. Of particular relevance to this application is s. 37(1)(b): 37. (1) A permanent resident or a foreign national is inadmissible on grounds of organized criminality for ... (b) engaging, in the context of transnational crime, in activities such as people smuggling, trafficking in persons or money laundering. 37. (1) Emportent interdiction de territoire pour criminalité organisée les faits suivants: ... b) se livrer, dans le cadre de la criminalité transnationale, a` des activités telles le passage de clandestins, le trafic de personnes ou le recyclage des produits de la criminalité. Canada (MCI) v. Dhillon Judith A. Snider J. 231

10 Once a foreign national or permanent resident in Canada is found to be inadmissible, the normal next step is the issuance of a removal order. In the case before me, Mr. Dhillon is currently subject to a removal order because of the finding of the ID, as affirmed by the IAD, that he is inadmissible to Canada for serious criminality under s. 36(1)(b). 11 Most persons who are the subject of a removal order have an auto- matic right of appeal to the IAD (IRPA, above at s. 63(3)). Pursuant to s. 67(1)(c) of IRPA, an appeal may be allowed if: ... taking onto account the best interests of a child directly affected by the decision, sufficient humanitarian and compassionate considerations warrant special relief in light of all the circumstances of the case. ... il y a — compte tenu de l’intérêt supérieur de l’enfant directement touché — des motifs d’ordre humanitaire justifiant, vu les autres cir- constances de l’affaire, la prise de mesures spéciales. 12 In other words, a person who is inadmissible may be permitted to remain if “special relief” is warranted on the basis of humanitarian and compassionate (H&C) considerations. 13 However, Parliament determined that certain persons found to be inadmissible to Canada should not be permitted to appeal to the IAD on H&C grounds. Specifically, s. 64 of IRPA prevents those found inadmissible under s. 37 from appealing their removal order to the IAD: 64. (1) No appeal may be made to the Immigration Appeal Division by a foreign national or their sponsor or by a permanent resident if the foreign national or permanent resident has been found to be inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality. [Emphasis added] 64. (1) L’appel ne peut etreˆ interjeté par le résident permanent ou l’étranger qui est interdit de territoire pour raison de sécurité ou pour atteinte aux droits humains ou internationaux, grande criminalité ou criminalité organisée, ni par dans le cas de l’étranger, son répondant. [Je souligne] 14 For purposes of s. 64(1), serious criminality includes only a crime that “was punished in Canada by a term of imprisonment of at least two years” (IRPA, above at s. 64(2)). Mr. Dhillon, does not meet this threshold as his crime was committed and punished in the United States. 15 Simply stated, the result of this statutory scheme is the following: 232 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

1. if Mr. Dhillon is inadmissible for serious criminality under s. 36(1)(b), he has a right of appeal to the IAD where he may argue that sufficient H&C considerations warrant “special relief”; and 2. if Mr. Dhillon is inadmissible on grounds of organized criminality under s. 37(1)(b), he loses his right of appeal to the IAD.

IV. Standard of Review 16 The question before the IAD was whether Mr. Dhillon was inadmissible to Canada on the grounds of organized criminality. Since Mr. Dhillon does not dispute that he committed a crime that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years, there was no factual determination to be made by the IAD. Thus, the only question before the IAD was one of pure statutory interpretation: Does s. 37(1)(b) include the crime committed by Mr. Dhillon? 17 The Court of Appeal, in Sittampalam v. Canada (Minister of Citizenship & Immigration), 2006 FCA 326 (F.C.A.) at para 15, (2006), [2007] 3 F.C.R. 198 (F.C.A.) [Sittampalam], held that the assessment of the proper interpretation of the language in s. 37(1)(a) of IRPA was a question of law subject to review on a standard of correctness. Arguably, a statutory interpretation of the closely-related s. 37(1)(b) should be subject to the same standard. 18 However, I hesitate to rely wholly on Sittampalam. Since the Court of Appeal’s determination of a correctness standard, the Supreme Court of Canada has held, in a number of decisions, that decisions of tribunals involving interpretation of their “home” legislation are entitled to deference. As instructed by the Supreme Court of Canada, unless the question is one of “general legal importance”, a tribunal’s decision will generally be reviewed on a reasonableness standard. For example, in Canada (Attorney General) v. Mowat, 2011 SCC 53 (S.C.C.) at para 24, [2011] 3 S.C.R. 471 (S.C.C.) [Mowat], the Supreme Court unanimously wrote: In substance, if the issue relates to the interpretation and application of its own statute, is within its expertise and does not raise issues of general legal importance, the standard of reasonableness will generally apply and the Tribunal will be entitled to deference. [Emphasis added] 19 Does the question of whether drug smuggling is a transnational crime within the meaning of s. 37(1)(b) raise an issue of general legal importance? I think that the better legal view is that it does. Canada (MCI) v. Dhillon Judith A. Snider J. 233

20 The question of inadmissibility of foreign nationals or permanent residents to Canada transcends an IAD determination of whether a person is able to access the H&C provisions in an appeal to the IAD. A finding of inadmissibility due to serious criminality or organized crime has implications for and application to a number of other processes involved in the immigration context. For example, a visa officer in an overseas post must take into account the admissibility of a person applying for permanent residence status. An immigration officer may conclude that a claim is not eligible to be referred to the Refugee Protection Division of the Immigration and Refugee Board because of inadmissibility. In sum, there are many tribunals or decision-makers who must consider and apply s. 37(1)(b) in their daily jobs. In this sense, the question before me is one of general legal importance. I would apply a standard of review of correctness. 21 However, if I am wrong on this question of standard of review, I will also determine whether the interpretation found by the IAD was reasonable. When applied to a question of statutory interpretation, it appears to me that a decision that does not accord with the wellestablished principles of statutory interpretation will be unreasonable. As stated in Mowat, above at paragraph 33: The question is one of statutory interpretation and the object is to seek the intent of Parliament by reading the words of the provision in their entire context and according to their grammatical and ordinary sense, harmoniously with the scheme and object of the Act and the intention of Parliament (E. A. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87, quoted in Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at para. 21). 22 In Mowat, the Supreme Court concluded that, when a full contextual and purposive analysis of the provisions was undertaken, it became clear that no reasonable interpretation supported the conclusion reached by the tribunal (Mowat, above at para 34).

V. IAD Decision 23 It was not disputed before the IAD that the Respondent had engaged in activity “in the context of transnational crime”. The only issue was whether the importation of marijuana constituted an activity “such as people smuggling, trafficking in persons or money laundering”. 24 In determining which other activities might be covered by s. 37(1)(b), the IAD considered the relationship between the listed activities; inter- 234 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

preted the provision in light of s. 3(3) of IRPA; and considered the cases cited by the parties. 25 First, the IAD noted that there was a relationship between people smuggling and trafficking in persons, and, while less obvious, between people smuggling and money laundering, as the United Nations Conven- tion against Transnational Organized Crime, 15 November 2000, 2225 UNTS 209 (entered into force 29 September 2003, ratified by Canada 13 May 2002) (the Convention, or UNCTOC) references both money laundering and trafficking in persons. Noting that corruption and obstruction of justice are also referenced in the Convention, the IAD reasoned that an argument could be made that they also fall within s. 37(1)(b). The IAD also held that “the enumerated activities in paragraph 37(1)(b) do not all necessarily have to be connected, as Parliament could have been providing two different types of activities and indicating that activities such as either of those two different activities would fall under paragraph 37(1)(b)” (emphasis in original). As will be seen, however, the IAD went on to require that there be “an articulable similarity between the subject offence and either human trafficking (people smuggling/trafficking in persons) or money laundering” as well as a “significant similarity” between the unlisted activity and those two activities. 26 Second, the IAD considered the interpretation of s. 37(1)(b) in light of ss. 3(3)(a), (b), (c) and (f) of IRPA. Those provisions, which describe the application of IRPA, are set out here for ease of reference: (3) This Act is to be construed and applied in a manner that (a) furthers the domestic and international interests of Canada; (b) promotes accountability and transparency by enhancing public awareness of immigration and refugee programs; (c) facilitates cooperation between the Government of Canada, provincial governments, foreign states, international organizations and nongovernmental organizations; ... (f) complies with international human rights instruments to which Canada is signatory. (3) L’interprétation et la mise en oeuvre de la présente loi doivent avoir pour effet: a) de promouvoir les intérêts du Canada sur les plans intérieur et international; Canada (MCI) v. Dhillon Judith A. Snider J. 235

b) d’encourager la responsabilisation et la transparence par une meilleure connaissance des programmes d’immigration et de ceux pour les réfugiés; c) de faciliter la coopération entre le gouvernement fédéral, les gouvernements provinciaux, les Etats´ etrangers,´ les organisa- tions internationales et les organismes non gouvernementaux; ... f) de se conformer aux instruments internationaux portant sur les droits de l’homme dont le Canada est signataire. 27 With respect to s. 3(3)(a), the IAD reasoned that it was not clear how reading drug trafficking into s. 37(1)(b) of IRPA would further Canada’s domestic and international interests, as the loss of the right to appeal a removal order on humanitarian and compassionate grounds could also hinder those interests. The IAD noted that “[t]he evidence and argument on that point simply are not before me”. The IAD then reasoned that, If inclusion of all transnational crimes was the intention of Parlia- ment, then Parliament would likely have used other wording, to clearly define that and given that drug trafficking is a common transnational crime, I find it unlikely that Parliament overlooked listing it within the enumerated offences in paragraph 37(1)(b). I must conclude that Parliament carefully chose the language and list of enumerated offences and I am bound to interpret the specific wording chosen by Parliament in my analysis. I note that paragraph 37(1)(a) already removes the right of appeal for persons who meet the definition in that paragraph, of organized criminality. 28 Regarding s. 3(3)(b), the IAD stated that excluding drug trafficking from s. 37(1)(b) would not remove accountability for that offence, as it continues to have serious criminal sanctions as well as serious consequences under IRPA, including the issuance of a removal order with the right of appeal on humanitarian and compassionate grounds or possibly removal under s. 37(1)(a). In addition, the IAD reasoned that “‘importing’ drug trafficking into the enumerated list in paragraph 37(1)(b) is anything but transparent”. 29 As for s. 3(3)(c), the IAD found that it was impossible, in the absence of clearer language indicating Parliament’s intention, to conclude which interpretation would facilitate cooperation. The IAD thus reasoned that it was only possible to “construe the provisions of paragraph 37(1)(b) according to the language utilized by Parliament”. 30 The IAD then considered s. 3(3)(f), and found that he had “not been directed to any international obligation that mandates the removal of ap- 236 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

peal rights, based on humanitarian and compassionate grounds, for persons convicted of serious drug charges”. 31 The third step of the IAD’s reasoning included a consideration of three cases cited by the Minister: Canada (Public Safety) v Almonte (2009), ID 0003-A8-02583; Canada (Public Safety) v Halls (2010), ID 0003-A3-02628; and Sidhu c. Canada (Ministre de la S´ecurit´e publique et de la Protection civile), [2011] I.A.D.D. No. 1288 (Imm. & Ref. Bd. (App. Div.)), 2011 CanLII 93851 (IRB) [Sidhu]. The IAD found that the first two cases were unhelpful and that, while relevant, the decision in Sidhu was unsupportable. In particular, the IAD explained that he under- stood the panel in Sidhu to have held that very little similarity is required between the activities listed in s. 37(1)(b) and “unlisted” activities caught by that provision. In contrast, the IAD stated that he believed “significant similarity is required to satisfy the description, ‘such as’”. The IAD thus disagreed with the conclusion of the panel in Sidhu that the “common elements” of organized criminality and movement across international borders linked unlisted activities to the listed activities, and thus made drug smuggling an “obvious, although unlisted, activity to associate with the listed activities in paragraph 37(1)(b)” (see Sidhu, above at para 16). According to the IAD, organized criminality is an unhelpful “attribute” because, although “a generalized ‘organized criminality’” applies to both ss. 37(1)(a) and (b), “[t]here must be a purpose for Parliament to have utilized these two sections, one specifying the components of organized criminality and the other specifying ‘activities such as...’ the enumerated list”. The IAD further held that movement across international borders is not a “true common factor” that can help identify unlisted activities, because it applies to all transnational crimes, and s. 37(1)(b) is clearly narrower. 32 The IAD then proceeded to articulate its view that a significantly higher level of similarity is required for an unlisted activity to be caught by s. 37(1)(b): The consequence of a paragraph 37(1)(b) determination is extremely serious, being the elimination of any right to appeal. Inclusion of a category of offences under that provision, therefore, ought not to be made without a clear and rational association having been established. I conclude that in order for an activity to meet the test of being “such as” the enumerated activities, there must be an articulable similarity between the subject offence and either human trafficking (people smuggling/trafficking in persons) or money laundering and the activity must have significant similarity to those two activities. If Canada (MCI) v. Dhillon Judith A. Snider J. 237

the only similarity is that the offences are transnational, as submitted by the Minister, then this similarity has not been made out. [Emphasis added] 33 The IAD accordingly dismissed the Minister’s appeal, noting that the Respondent remained subject to a deportation order under s. 36(1)(a), although he had a right of appeal to seek humanitarian and compassionate relief.

VI. Analysis A. The principles 34 As noted at paragraph [16] above, the only question before the IAD was one of pure statutory interpretation: Does s. 37(1)(b) include conspiracy to import marijuana into the United States? 35 In this question of statutory interpretation, I am guided by much jurisprudence. In Rizzo & Rizzo Shoes Ltd., Re, [1998] 1 S.C.R. 27 (S.C.C.) at para 21, [1998] S.C.J. No. 2 (S.C.C.), Mr. Justice Iacobucci, speaking for the unanimous Court, endorsed the statement of Elmer Driedger in Con- struction of Statutes, 2d ed (Toronto: Butterworths, 1983) that: Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. 36 The remarks of Chief Justice McLachlin and Justice Major in Canada Trustco Mortgage Co. v. R., 2005 SCC 54 (S.C.C.) at para 10, [2005] 2 S.C.R. 601 (S.C.C.) are also helpful: It has been long established as a matter of statutory interpretation that “the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”: see 65302 British Columbia Ltd. v. Canada [1999] 3 S.C.R. 804, at para. 50. The interpretation of a statutory provision must be made according to a textual, contextual and purposive analysis to find a meaning that is harmonious with the Act as a whole. When the words of a provision are precise and unequivocal, the ordinary meaning of the words play a dominant role in the interpretive process. On the other hand, where the words can support more than one reasonable meaning, the ordinary meaning of the words plays a lesser role. The rela- tive effects of ordinary meaning, context and purpose on the interpretive process may vary, but in all cases the court must seek to read the provisions of an Act as a harmonious whole. 238 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

[Emphasis added] 37 In undertaking the task of interpreting a statute, the court should not ignore the words used. The Supreme Court of Canada recently confirmed that statutory interpretation “involves a consideration of the ordinary meaning of the words used and the statutory context in which they are found” (Celgene Corp. v. Canada (Attorney General), 2011 SCC 1 (S.C.C.) at para 21, [2011] 1 S.C.R. 3 (S.C.C.)). The Court further explained that “[t]he words, if clear, will dominate; if not, they yield to an interpretation that best meets the overriding purpose of the statute” (Celgene, above at para 21). 38 From this brief synopsis of the jurisprudence, I learn that, where there are conflicting but not unreasonable interpretations available, the contextual framework of the legislation becomes even more important.

B. The words used 39 As taught by the jurisprudence, I begin by looking at the words of the provision in question. Section 37(1)(b) states that, 37. (1) A permanent resident or a foreign national is inadmissible on grounds of organized criminality for ... (b) engaging, in the context of transnational crime, in activities such as people smuggling, trafficking in persons or money laundering. 37. (1) Emportent interdiction de territoire pour criminalité organisée les faits suivants: ... b) se livrer, dans le cadre de la criminalité transnationale, a` des activités telles le passage de clandestins, le trafic de personnes ou le recyclage des produits de la criminalité. 40 The IAD correctly points out that Parliament chose not to expressly refer to drug smuggling in s. 37(1)(b). I agree that Parliament could have explicitly included drug trafficking in the list of transnational crimes that attract the severe consequences of being implicated in organized criminality. Does this omission mean that international drug smuggling is not caught by s. 37(1)(b)? 41 At its narrowest, the issue on this application is whether the phrase “such as” can refer to drug smuggling. Canada (MCI) v. Dhillon Judith A. Snider J. 239

42 I note at the outset that the French version of s. 37(1)(b) uses the word “telles”. It is almost identical to the English phrase “such as”. Ac- cording to the Collins-Robert French-English, English-French Diction- ary, 2d ed (Toronto: Collins, 1987), “telle” translates as “such” or “like”, while “telle que” means “like” or “such as”. There is no conflict between the French and English versions of the provision in question. 43 The IAD held that the phrase “such as” requires that there be “significant similarity” between the activity sought to be included and the listed offences. I do not agree. 44 In my view, in its ordinary use, the phrase “such as” is illustrative and suggests an example rather than a limit. This interpretation is supported by this Court’s decision in Hadwani v. Canada (Minister of Citizenship & Immigration), 2011 FC 888 (F.C.) at para 9, (2011), 394 F.T.R. 156 (F.C.) [Hadwani],where Justice Hughes held that the notation “i.e.” in a Canadian High Commission document check list denoted “such as”, thus “meaning a degree of flexibility is permissible”. In that case, Justice Hughes found that a Designated Immigration Officer had erred in rejecting the hospital record of a birth, when the check list only stated that documents “such as” a birth certificate were required (Hadwani, above at para 10). In my opinion, the IAD’s requirement of “significant similarity” also creates too high a standard. 45 This conclusion is further supported by the principle that the limited class, or ejusdem generis, rule does not apply where general words pre- cede rather than follow a specific enumeration. As the Supreme Court explained in National Bank of Greece (Canada) c. Katsikonouris, [1990] 2 S.C.R. 1029 (S.C.C.), at 1040, [1990] S.C.J. No. 95 (S.C.C.): Whatever the particular document one is construing, when one finds a clause that sets out a list of specific words followed by a general term, it will normally be appropriate to limit the general term to the genus of the narrow enumeration that precedes it. But it would be illogical to proceed in the same manner when a general term precedes an enumeration of specific examples. In this situation, it is logical to infer that the purpose of providing specific examples from within a broad general category is to remove any ambiguity as to whether those examples are in fact included in the category. It would defeat the intention of the person drafting the document if one were to view the specific illustrations as an exhaustive definition of the larger category of which they form a part. [Emphasis added] 240 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

46 In this case, the general term “activities” precedes the listed activities, suggesting that those offences are examples only and that the provision does not establish a limited class. Because the listed activities are non- exhaustive examples, there is, as correctly argued by the Minister, no room for the application of the implied exclusion rule either (see United Taxi Drivers’ Fellowship of Southern Alberta v. Calgary (City), 2004 SCC 19 (S.C.C.) at para 14, [2004] 1 S.C.R. 485 (S.C.C.)). 47 Moreover, as is more apparent from the contextual review that follows, it appears likely that Parliament highlighted “people smuggling, trafficking in persons or money laundering” for the purpose of removing any ambiguity as to whether these crimes are included in the category. 48 While the IAD appears to acknowledge that the examples in s. 37(1)(b) are not exhaustive, the words of the IAD, in its decision, show that the tribunal took an overly-narrow view. For example, at paragraph 10 of its decision, the IAD states that “... it is not clear on the evidence before me how Canada’s international interests would be furthered by adding drug trafficking to the list of offences in paragraph 37(1)(b) ...”. With respect, these words show that the IAD was indeed — and unreasonably — treating this as an exhaustive list. 49 That is not to say that the IAD’s conclusion that s. 37(1)(b) does not include all transnational offences is incorrect. In the same way that the phrase “such as” is not entirely exclusive, it also cannot be wholly inclusive, otherwise, as Mr. Dhillon points out, that phrase would be redundant. 50 Having reviewed the words of the provision, I am not persuaded that it is sufficiently (or at all) clear that international drug smuggling is either included or excluded from the “activities” caught by s. 37(1)(b). Thus, the next step of my analysis is to review the contextual framework of the legislation.

C. Contextual framework 51 There are two key contextual matters that are relevant. The first is the context of s. 37(1)(b) within IRPA and the second is the notion of drug smuggling and transnational crime in the context of Canada’s international obligations.

(1) Prioritization of security for Canadians 52 As noted above, the first aspect of the contextual framework is the overall statutory scheme of IRPA in addressing criminality and serious Canada (MCI) v. Dhillon Judith A. Snider J. 241

criminality. The provision in question does not sit in isolation in IRPA; rather, it is contained in the division of IRPA dealing with inadmissibility and must be read in context. In ss. 34 to 37, in particular, IRPA addresses the inadmissibility of persons on a number of grounds: security (s. 34), human and international rights violations (s. 35), serious criminality (s. 36) and organized criminality (s. 37). Read together, these provisions clearly signal the intent of Parliament to address criminality seriously. For certain classes of persons, Parliament has stripped away the right to appeal to the IAD on H&C grounds, subject to s. 64(2). 53 Mr. Dhillon, like the IAD, places significant weight on the fact that a finding that drug smuggling is captured by s. 37(1)(b) would result in the removal of the individual’s right to appeal on the basis of H&C grounds. This argument ignores the interest of Canada in maintaining the security of Canadians. The Federal Court of Appeal has endorsed a broad interpretation of s. 37(1)(a) on the basis that IRPA “signifies an intention, above all, to prioritize the security of Canadians” (Sittampalam, above at para 36). This priority was even more strongly expressed in the Supreme Court of Canada’s decision in Medovarski v. Canada (Minister of Citizenship & Immigration), 2005 SCC 51 (S.C.C.) at paras 9-10, [2005] 2 S.C.R. 539 (S.C.C.), where the unanimous Court stated: 9 The IRPA enacted a series of provisions intended to facilitate the removal of permanent residents who have engaged in serious criminality. This intent is reflected in the objectives of the IRPA, the provisions of the IRPA governing permanent residents and the legislative hearings preceding the enactment of the IRPA. 10 The objectives as expressed in the IRPA indicate an intent to prioritize security. This objective is given effect by preventing the entry of applicants with criminal records, by removing applicants with such records from Canada, and by emphasizing the obligation of permanent residents to behave lawfully while in Canada. This marks a change from the focus in the predecessor statute, which emphasized the successful integration of applicants more than security: e.g., see s. 3(1)(i) of the IRPA versus s. 3(j) of the former Act; s. 3(1)(e) of the IRPA versus s. 3(d) of the former Act; s. 3(1)(h) of the IRPA versus s. 3(i) of the former Act. Viewed collectively, the objectives of the IRPA and its provisions concerning permanent residents, communi- cate a strong desire to treat criminals and security threats less leniently than under the former Act. 242 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

An interpretation which prioritizes a foreign national’s appeal rights is accordingly inconsistent with the broad intention of IRPA. 54 In sum, this emphasis on security for Canadians supports an expan- sive view of s. 37(1)(b) that arguably includes the crime of “Conspiracy to Import Marijuana — over 50 kilograms” for which Mr. Dhillon was convicted.

(2) International treaties 55 The second consideration is the notion of transnational crime and Canada’s interest in this subject through its international treaty obligations. One of the objectives of IRPA is the promotion of “international justice and security by fostering respect for human rights and by denying access to Canadian territory to persons who are criminals or security risks” (IRPA, above at s. 3(1)(i)). 56 Two of the more relevant international treaties are the following: • United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988, 20 December 1988, 1582 UNTS 95 (entered into force 11 November 1990, ratified by Canada 5 July 1990) [1988 Drugs Convention]; and • UNCTOC, above. 57 Mr. Dhillon submits that drug smuggling is a “totally different of- fenc[e]” from people smuggling, human trafficking and money laundering. Similarly, and relying on the UNCTOC, the IAD appeared to find a link between money laundering and trafficking in persons but concluded that there was no “articulable similarity” between drug smuggling and either human trafficking or money laundering. I do not agree. The problem with this position is that both the IAD and Mr. Dhillon have failed to appreciate the nature of the crime of drug trafficking or smuggling within the larger context of international crime and Canada’s international treaty obligations. 58 While neither the 1988 Drugs Convention nor the UNCTOC is incorporated into Canadian law, s. 3(1)(i) directs that IRPA must be construed and applied in a manner that complies with them (see de Guzman v. Canada (Minister of Citizenship & Immigration), 2005 FCA 436 (F.C.A.) at para 73, (2005), [2006] 3 F.C.R. 655 (F.C.A.)). At the very least, a proper contextual interpretation of s. 37(1)(b) should be informed by those international treaties. Canada (MCI) v. Dhillon Judith A. Snider J. 243

59 A review of the background information provided by the Minister on this application is informative. As of the date of the 1988 Drugs Conven- tion, the main focus of the states parties was on drug trafficking. How- ever, it is clear that drug trafficking and money laundering are inextricably linked. This is apparent from the 1988 Drugs Convention, which establishes a connection between drug trafficking and money laundering. In particular, the preamble to that convention refers to the states parties’ desire, [T]o conclude a comprehensive, effective and operative international convention that is directed specifically against illicit traffic and that considers the various aspects of the problem as a whole, in particular those aspects not envisaged in the existing treaties in the field of narcotic drugs and psychotropic substances ... [Emphasis added] 60 In addition to requiring that states parties criminalize, inter alia, the production, distribution, sale and purchase of narcotics, the 1988 Drugs Convention also requires criminalization of what is commonly referred to as money laundering. In particular, Article 3.1 states that, 1. Each Party shall adopt such measures as may be necessary to establish as criminal offences under its domestic law, when committed intentionally: ... b) i) The conversion or transfer of property, knowing that such property is derived from any offence or offences established in accordance with subparagraph (a) of this paragraph, or from an act of participation in such offence or offences, for the purpose of concealing or disguising the illicit origin of the property or of assisting any person who is involved in the commission of such an offence or offences to evade the legal consequences of his actions; ii) The concealment or disguise of the true nature; source, location, disposition, movement, rights with respect to, or ownership of property, knowing that such property is derived from an offence or offences established in accordance with subparagraph (a) of this paragraph or from an act of participation in such an offence or offences ... 61 The inclusion of this provision in the 1988 Drugs Convention indicates that, since at least 1988, states have recognized that money laundering is an important aspect of international drug trafficking. The close relationship between money laundering and drug trafficking has been long 244 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

recognized. As pointed out by Professor Gerhard Kemp in his article, “The United Nations Convention Against Transnational Organized Crime: A milestone in international criminal law” (2001) 14 S Afr J Crim Just 152 at 157: The provisions of the Convention criminalizing money laundering is clearly based on the provisions of the 1988 United Nations Drug Convention. However, under the 1988 Convention the crime of money laundering is restricted to laundering proceeds of drug offences. 62 In 2000, Canada signed the UNCTOC. The foreword to the UNCTOC similarly refers to the relationship between the narcotics trade and other transnational crimes: Arrayed against these constructive forces, however, in ever greater numbers and with ever stronger weapons, are the forces of what I call “uncivil society”. They are terrorists, criminals, drug dealers, traf- fickers in people and others who undo the good works of civil society. [Emphasis added] 63 The UNTOC thus expaned the notion of serious organized transnational crime beyond an exclusive focus on drug crimes. 64 In a real sense, money laundering overlaps substantially with drug trafficking. Quite simply, drug smuggling and trafficking give rise to money laundering (see e.g. Peter M. German, Proceeds of Crime and Money Laundering: Includes Analysis of Civil Forfeiture and Terrorist Financing Legislation (Toronto: Carswell, 1998) at 1A-9). In this context and with this understanding of the nature of the crimes involved, it is not logical to me that Parliament would include money laundering as a transnational crime under s. 37(1)(b) and not drug smuggling. 65 Certainly, it would have been clearer for Parliament to specifically list drug smuggling in the provision. However, we must appreciate that, in 2001 when this provision was implemented into our immigration law, the crimes of people smuggling, money laundering, and human trafficking were not as well known. Nations were searching for ways to control, not only drugs, but these transnational crimes as well. The fact that Par- liament chose to highlight these three crimes can be seen as a direction that these three transnational crimes were included, even though a reader might not initially direct his mind to them. It does not mean, in my view, that Parliament intended to exclude the equally serious transnational crime of drug smuggling from s. 37(1)(b). Canada (MCI) v. Dhillon Judith A. Snider J. 245

66 It follows that the words of s. 37(1)(b), when read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of IRPA, the object of IRPA, and the intention of Parliament include the activity of transnational drug smuggling. Stated differently, the crime of “Conspiracy to Import Marijuana — over 50 kilograms” for which Mr. Dhillon was convicted is the foundation for a finding of inadmissibility on grounds of both serious criminality under s. 36(1)(b) of IRPA and organized criminality under s. 37(1)(b) of IRPA. 67 In my view, the IAD failed to have regard to: (a) the intention of Parliament to prioritize security of Canadians; and (b) the interrelation- ship of drug smuggling and money laundering as reflected in the relevant international instruments. In addition, the IAD erred in concluding that the only similarity between the activities listed in s. 37(1)(b) and drug smuggling is that both offences are transnational. 68 If the IAD Decision is reviewable on a standard of correctness, the interpretation by the IAD is incorrect. On a standard of reasonableness, the interpretation was unreasonable; paraphrasing the words of the Su- preme Court in Mowat, above at paragraph 34, when a full contextual and purposive analysis of s. 37(1)(b) is undertaken, it becomes clear that no reasonable interpretation supports the conclusion reached by the IAD.

VII. Conclusion 69 In summary, I conclude that: (a) the use of the words “such as” does not limit the application of s. 37(1)(b) to the crimes of people smuggling, trafficking in persons and money laundering; (b) the loss of Mr. Dhillon’s right to an appeal to the IAD on H&C grounds is consistent with the objective of Parliament to prioritize security for Canadians; and (c) a textual, contextual and purposive analysis to find a meaning that is harmonious with IRPA as a whole results in a conclusion that the transnational crime of drug smuggling is included in s. 37(1)(b). 70 Accordingly, this application for judicial review will be allowed. 71 I wish to make it clear that I am not concluding that all transnational crimes will fall within the meaning of s. 37(1)(b). Clearly, there may be transnational crimes that do not fit within the definition. However, I am satisfied that the crime of drug smuggling of which Mr. Dhillon was con- 246 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

victed is included in the proper meaning of s. 37(1)(b). I express no views on any other transnational crimes or how “similar” such crimes would have to be to fall within that provision. 72 The Minister proposes the following question for certification: Is the importation of narcotics into another country a transnational crime for the purposes of the section 37(1)(b) inadmissibility provision? 73 I agree that the question is one of general importance that should be certified. The question satisfies the requirements set out by the Court of Appeal in Liyanagamage v. Canada (Secretary of State) (1994), 176 N.R. 4 (Fed. C.A.) at paras 4-6, [1994] F.C.J. No. 1637 (Fed. C.A.) (see also Zazai v. Canada (Minister of Citizenship & Immigration), 2004 FCA 89 (F.C.A.) at paras 11-12, (2004), 318 N.R. 365 (F.C.A.); and Varela v. Canada (Minister of Citizenship & Immigration), 2009 FCA 145 (F.C.A.) at paras 22-29, (2009), [2010] 1 F.C.R. 129 (F.C.A.)). Spe- cifically, the question is a serious question of broad significance and it would be dispositive of the appeal. I would, however, rephrase the question as follows: Is the importation of narcotics into another state an activity ‘such as people smuggling, trafficking in persons or money laundering’ within the meaning of s. 37(1)(b) of IRPA?

Judgment THIS COURT ORDERS AND ADJUDGES that: 1. the application for judicial review is allowed, the decision of the IAD is quashed and the matter remitted to the IAD for re-consideration by a different member of the IAD, in accordance with these reasons; and 2. the following question of general importance is certified: Is the importation of narcotics into another state an activity ‘such as people smuggling, trafficking in persons or money laundering’ within the meaning of s. 37(1)(b) of IRPA? Application granted. Delgado Ruiz c. Canada (MCI) 247

[Indexed as: Delgado Ruiz c. Canada (Ministre de la Citoyennet´e & de l’Immigration)] Lucy Stella Delgado Ruiz, Johan Fernando Medina Delgado and Jessica Ivonne Medina Delgado, Applicants and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-5694-11 2012 FC 163, 2012 CF 163 Sean Harrington J. Heard: January 31, 2012 Judgment: February 7, 2012 Immigration and citizenship –––– Refugee protection — Practice and procedure in refugee claims — Refugee hearings — Powers and duties of board — Consideration of evidence –––– Applicant, citizen of Columbia, worked at Colombian embassy in Guatemala where tasks included issuance of passports and other identification documents — Applicant received several un- substantiated requests for documents and convened applicants for interview — Applicant was threatened by members of revolutionary army forces of Colombia (FARC) after conducting interviews — Applicant refused to cooperate and left employment — Applicant received threats after leaving employment and son was attacked by FARC members — Applicant and two children fled to Canada and claimed refugee status — Refugee Protection Division (RPD) of Immigra- tion and Refugee Board found that applicant was no longer at risk in Colombia since she left her government employment — Applicant applied for judicial review of decision that applicant was not Convention refugee or person in need of protection — Application granted — RPD’s conclusion went against documentary evidence dealing with situation of FARC which clearly indicated that FARC members were vindictive — Fact that applicant did not have experience during three weeks she returned to Colombia after cessation of employment did not mean that she would not be at risk if she stayed longer — Matter was remitted to different panel for redetermination. Cases considered by Sean Harrington J.: Adolfo Rodriguez c. Canada (Ministre de la Citoyennet´e & de l’Immigration) (2012), 2012 CF 4, 2012 CarswellNat 27, 2012 CarswellNat 276, 2012 FC 4, 7 Imm. L.R. (4th) 44, [2012] F.C.J. No. 16 (F.C.) — referred to 248 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

Cepeda-Gutierrez v. Canada (Minister of Citizenship & Immigration) (1998), 157 F.T.R. 35, 1998 CarswellNat 1981, [1998] A.C.F. No. 1425, [1998] F.C.J. No. 1425 (Fed. T.D.) — followed Gurusamy c. Canada (Ministre de la Citoyenneté & de l’Immigration) (2011), 2011 CarswellNat 4576, 2011 CF 990, 2011 CarswellNat 4087, 2011 FC 990, [2011] F.C.J. No. 1217 (F.C.) — referred to John v. Canada (Minister of Citizenship & Immigration) (2010), 2010 FC 1283, 2010 CarswellNat 4917, 2010 CarswellNat 5670, 2010 CF 1283, [2010] F.C.J. No. 1593 (F.C.) — referred to Liblizadeh v. Canada (Minister of Citizenship & Immigration) (1998), 1998 Car- swellNat 1280, [1998] F.C.J. No. 979 (Fed. T.D.) — referred to Miranda v. Canada (Minister of Employment & Immigration) (1993), 1993 Car- swellNat 1298, 63 F.T.R. 81, [1993] F.C.J. No. 437 (Fed. T.D.) — referred to Treaties considered: Convention Relating to the Status of Refugees, 1951, C.T.S. 1969/6; 189 U.N.T.S. 150 Article 1 “réfugié” — referred to

APPLICATION for judicial review of Refugee Protection Division’s decision that applicant was not Convention refugee or person in need of protection.

Cristina Marinelli, for the Applicants Daniel Baum, for the Respondent

Sean Harrington J.:

[UNREVISED ENGLISH CERTIFIED TRANSLATION] 1 For several years, Ms. Delgado Ruiz, a citizen of Colombia, worked at the Colombian embassy in Guatemala. In the performance of her duties, she was responsible for document applications by Colombian citizens in Guatemala, to whom she would send various documents such as Colombian passports, birth certificates, marriage certificates and other identity documents. Over time, she started to receive some requests without any supporting documents, and therefore had to call those applicants to an interview. Following the interviews, she received threats from the FARC (Revolutionary Armed Forces of Colombia) and the Maras indicating that she should facilitate the issuance of documents to their members. 2 Ms. Delgado Ruiz refused to cooperate. She resigned from her position at the embassy and bought a restaurant in Guatemala. In retaliation, Delgado Ruiz c. Canada (MCI) Sean Harrington J. 249

members of the FARC and Maras attacked her son by firing shots at his car and threatened her at work. 3 In the end, she came to Canada with her two children to claim refugee protection. Even though the Refugee Protection Division (RPD) of the Immigration and Refugee Board of Canada believes that, at a certain point in time, Ms. Delgado Ruiz did face a risk from the FARC if she were to return to Colombia, it is of the opinion that that risk has dissi- pated since that time given that she no longer works for the Colombian government and is no longer able to help them. This is an application for judicial review of that decision. 4 It is important to note, as a preliminary remark, that it has been well established that Ms. Delgado Ruiz and her children have no legal status in Guatemala. The only country of reference is Colombia. 5 It has also been established that the panel member of the RPD committed a number of errors of fact. However, I am of the opinion that none of these errors are material to the decision reached (Miranda v. Canada (Minister of Employment & Immigration) (1993), 63 F.T.R. 81, [1993] F.C.J. No. 437 (Fed. T.D.)). 6 Specifically, and contrary to the panel member’s findings of fact, Ms. Delgado Ruiz does not have a sister in the United States. This erroneous finding was the basis for the omission alleged, that is, that she failed to claim asylum in the United States. Ms. Delgado Ruiz spent only one night in New York when she was in transit to Canada. In any event, the delay in claiming refugee protection at the earliest opportunity is not a determinative factor (John v. Canada (Minister of Citizenship & Immi- gration), 2010 FC 1283, [2010] F.C.J. No. 1593 (F.C.); Liblizadeh v. Canada (Minister of Citizenship & Immigration) (1998), 81 A.C.W.S. (3d) 332, [1998] F.C.J. No. 979 (Fed. T.D.); Gurusamy c. Canada (Ministre de la Citoyennet´e & de l’Immigration), 2011 FC 990, [2011] F.C.J. No. 1217 (F.C.); Adolfo Rodriguez c. Canada (Ministre de la Citoyennet´e & de l’Immigration), 2012 FC 4, [2012] F.C.J. No. 16 (F.C.)).

Issue 7 The only issue is whether the RPD’s finding that Ms. Delgado Ruiz would no longer be at risk in Colombia on the grounds that she no longer works for the Colombian government and is no longer able to issue passports and other identity documents was reasonable. 250 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

Analysis 8 It is understandable that, in the abstract, logic and common sense support the RPD’s decision. Why target someone who is no longer able to advance the objectives of these organizations? It is unnecessary to consider Ms. Delgado Ruiz’s allegation that she is still useful to the FARC because she is familiar with the system. 9 However, the RPD’s finding is contrary to the documentary evidence on the FARC situation in Colombia. It is abundantly clear that FARC members are vindictive. The following is according to response to information request COL103286.E, dated February 23, 2010: In correspondence with the Research Directorate, the Senior Re- searcher with Human Rights Watch indicated that “[d]ue to their presence in vast sectors of Colombia and extensive information networks, it is likely that the FARC, ELN and successor groups to the AUC have the capacity to pursue victims even after they have spent many years outside the country” (Human Rights Watch 9 Nov. 2009). Furthermore, in the view of the Professor of Sociology at Acadia University, the FARC and ELN “would continue to view persons, it deems as a ‘class’ enemy, regardless of time duration or geo- graphical location” (19 Jan. 2010). The Professor at Stetson University, explaining that the following statements apply also to the ELN, addressed this issue as follows: [It] depends on the ongoing value of that individual to the FARC. ... The FARC is capable of monitoring over the long term the movement of Colombian nationals from and into Colombia by flagging names that will signal an alert when that individual returns to Colombian soil. Also, there is some risk to a targeted individual who continues to reside outside Colombia, especially if that individual is a high value target and resides in a nation where the FARC maintains a significant covert presence (other An- dean states, Argentina, Paraguay, Mexico, Costa Rica, Panama, and some parts of the United States, particularly Florida and Georgia). ... at some point, the paper trail of an individual’s daily routine and lifestyle would expose that individual to possible identification by the FARC. Moreover, there is a stigma attached to Colombian nationals who return to Colombia from the United States, Can- ada, and Europe. Many criminals and illegal armed groups such as the FARC are under the impression that expatriates returning to Colombia bring back with them Delgado Ruiz c. Canada (MCI) Sean Harrington J. 251

money that can be extorted. ... This false assumption places many returning Colombians at risk of being targeted by groups who must include extortion in their ar- senal of criminal activities in order to survive. Therefore, even if several years have elapsed, there is simply no way to assure that a repatriated Colombian national who was once targeted and persecuted by the FARC can live se- curely and in peace. (Professor, Stetson University 21 Jan. 2010). 10 In this case, Cepeda-Gutierrez v. Canada (Minister of Citizenship & Immigration) (1998), 157 F.T.R. 35, [1998] F.C.J. No. 1425 (Fed. T.D.), applies. Mr. Justice Evans, later appointed to the Federal Court of Ap- peal, explained the following at paragraph 17: However, the more important the evidence that is not mentioned specifically and analyzed in the agency’s reasons, the more willing a court may be to infer from the silence that the agency made an erroneous finding of fact “without regard to the evidence”: Bains v. Canada (Minister of Employment and Immigration) (1993), 63 F.T.R. 312 (F.C.T.D.). In other words, the agency’s burden of explanation increases with the relevance of the evidence in question to the disputed facts. Thus, a blanket statement that the agency has considered all the evidence will not suffice when the evidence omitted from any discussion in the reasons appears squarely to contradict the agency’s finding of fact. Moreover, when the agency refers in some detail to evidence supporting its finding, but is silent on evidence pointing to the opposite conclusion, it may be easier to infer that the agency overlooked the contradictory evidence when making its finding of fact. 11 Furthermore, the fact that Ms. Delgado Ruiz returned to Colombia for less than three weeks to complete certain steps relating to her resignation from her position at the embassy, and the fact that she did not experience any problems during her stay in Colombia, does not mean that she would not have been at risk if she had stayed there longer. This is especially true when we consider that Ms. Delgado Ruiz received threats in Guate- mala City immediately before her departure for Colombia. 12 Consequently, I am of the opinion that the decision by the panel member is unreasonable and I refer it back to another decision-maker for redetermination. The new decision will have to take into account the availability of state protection and an internal flight alternative in Colombia. 252 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

13 As agreed by the two parties during the hearing, there is no serious question of general importance to certify.

Order THE COURT ORDERS AND ADJUDGES that: 1. The application for judicial review of the decision by a member of the RPD, of the IRB, dated August 1, 2011, that the applicants are not Convention refugees or persons in need of protection is allowed. 2. The said decision dated August 1, 2011, is set aside and the matter is referred back for redetermination by a different panel member of the RPD, of the IRB. The new decision will have to take into account the availability of state protection and an internal flight alternative in Colombia. 3. There is no serious question of general importance to certify. Application granted; matter remitted to different panel for reconsideration. Slaeman v. Canada (Attorney General) 253

[Indexed as: Slaeman v. Canada (Attorney General)] Nsaeif Slaeman and Amal Roukan, Applicants and Attorney General of Canada, Respondent Federal Court Docket: T-1337-11 2012 FC 641 Mary J.L. Gleason J. Heard: April 4, 2012 Judgment: May 25, 2012 Administrative law –––– Practice and procedure — On application for certi- orari — Evidence in support — Affidavits –––– Canadian passports and citizenship cards belonging to two Canadian citizens were seized from two Iraqi imposters who tried to board flight from Dubai to Toronto — Passport Canada conducted investigation and referred matter to adjudicator — Adjudicator concluded citizens had allowed impostors to use their passports and had provided false information in support of application for replacements — Adjudicator revoked citizens’ passports and imposed five-year ban on obtaining replacements — Citizens brought application for judicial review and filed supporting affidavit — Affidavit referred to lack of English fluency and described matters purporting to establish lack of involvement — Application dismissed — Parts of affidavit relating to lack of English fluency were admissible while parts purporting to establish lack of involvement were not — Parts relating to lack of English fluency were relevant to alleged breach of procedural fairness — Admissibility of this evidence was not dependent on finding alleged breach of procedural fairness to be meritorious — Parts purporting to establish lack of involvement were not relevant to any alleged breach of procedural fairness but rather were improperly directed at merits — There was absolutely no merit whatsoever to suggestion that citizens should be allowed to cross-examine investigators for purposes of this application. Administrative law –––– Requirements of natural justice — Right to hearing — Procedural rights at hearing — Miscellaneous procedural requirements –––– Canadian passports and citizenship cards belonging to two Canadian citizens were seized from two Iraqi imposters who tried to board flight from Dubai to Toronto — Passport Canada conducted investigation and referred matter to adjudicator — Adjudicator concluded citizens had allowed impostors to use their passports and had provided false information in support of application for replacements — Adjudicator revoked citizens’ passports and imposed five- year ban on obtaining replacements — Citizens contended they should have 254 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th) been granted oral hearing due to problems with English fluency during investigation — Citizens brought application for judicial review — Application dismissed — Citizens failed to establish any breach of procedural fairness — Citi- zens’ language difficulties had not entitled them to hearing — No authority supported argument that it was incumbent on Passport Canada to assist citizens with their language difficulties during investigation — Documents reviewed by Passport Canada would not have led reasonable person to conclude citizens were in need of assistance — Citizens had actually sent several letters to Passport Canada in English without indicating any language difficulties — It was up to citizens to obtain translation services if they felt need. Administrative law –––– Requirements of natural justice — Right to hearing — Procedural rights at hearing — Disclosure of contrary evidence –––– Canadian passports and citizenship cards belonging to two Canadian citizens were seized from two Iraqi imposters who tried to board flight from Dubai to Toronto — Passport Canada conducted investigation and referred matter to adjudicator — Adjudicator concluded citizens had allowed impostors to use their passports and had provided false information in support of application for replacements — Adjudicator revoked citizens’ passports and imposed five-year ban on obtaining replacements — Citizens contended disclosure had been inadequate — Citizens brought application for judicial review — Application dismissed — Citizens failed to establish any breach of procedural fairness — Un- disclosed items had been completely irrelevant to adjudicator’s determination — Citizens had been provided with sufficient disclosure of relevant facts — Citi- zens had only themselves to blame for not making formal submissions to Pass- port Canada or adjudicator. Administrative law –––– Requirements of natural justice — Bias — Per- sonal bias — Apprehended –––– Canadian passports and citizenship cards belonging to two Canadian citizens were seized from two Iraqi imposters who tried to board flight from Dubai to Toronto — Passport Canada conducted investigation and referred matter to adjudicator — Adjudicator concluded citizens had allowed impostors to use their passports and had provided false information in support of application for replacements — Adjudicator revoked citizens’ passports and imposed five-year ban on obtaining replacements — Citizens brought application for judicial review — Application dismissed — Fact that investigators had drafted adverse letters prior to conclusion of investigation did not establish reasonable apprehension of bias — Further investigation had been performed based on internal criticism of draft letters — Passport Canada’s final letters were substantially different from draft letters. Immigration and citizenship –––– Citizenship — Offences — General principles –––– Canadian passports and citizenship cards belonging to two Canadian citizens were seized from two Iraqi imposters who tried to board flight from Dubai to Toronto — Passport Canada conducted investigation and referred mat- Slaeman v. Canada (Attorney General) 255 ter to adjudicator — Adjudicator concluded citizens had allowed impostors to use their passports and had provided false information in support of application for replacements — Adjudicator revoked citizens’ passports and imposed five- year ban on obtaining replacements — Citizens brought application for judicial review — Application dismissed — Adjudicator’s decision was reasonable — Adjudicator had conducted detailed analysis in support of his conclusions — Citizens had provided contradictory statements as to when their passports had allegedly been stolen or last seen — Citizens had provided contradictory versions of events regarding storage of passports — Fact that passports contained Syrian visa issued on certain date was completely inconsistent with citizens’ version of events — Citizens’ current explanations and theories amounted to improper invitation to court to reach its own conclusions based on new evidence. Immigration and citizenship –––– Citizenship — Offences — Penalties –––– Adjudicator at Passport Canada determined two Canadian citizens had allowed impostors to use their Canadian passports — Adjudicator also determined citizens had provided false information in support of their replacement applications — Adjudicator revoked citizens’ passports and imposed five-year ban on obtaining replacements — Citizens brought application for judicial review — Application dismissed — Revocation of passports and imposition of five-year ban on obtaining replacements was entirely reasonable in light of seriousness of offences — Imposition of penalty was highly discretionary element of decision — Length of ban was certainly within range of possible acceptable outcomes — Misuses of passport services are serious matters — Canada is obligated to ensure that its passports are not misused — Failure to do so could have serious consequences. Cases considered by Mary J.L. Gleason J.: Assn. of Universities & Colleges of Canada v. Canadian Copyright Licensing Agency (2012), 2012 CarswellNat 126, 2012 FCA 22, 428 N.R. 297, 2012 CarswellNat 487, 2012 CAF 22 (F.C.A.) — considered Baker v. Canada (Minister of Citizenship & Immigration) (1999), 1 Imm. L.R. (3d) 1, [1999] 2 S.C.R. 817, 14 Admin. L.R. (3d) 173, 174 D.L.R. (4th) 193, 1999 CarswellNat 1124, 1999 CarswellNat 1125, 243 N.R. 22, [1999] S.C.J. No. 39 (S.C.C.) — followed 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.) — referred to Hutchinson v. Canada (Minister of Environment) (2003), 25 C.C.E.L. (3d) 206, 50 Admin. L.R. (3d) 255, 47 C.H.R.R. D/12, 302 N.R. 66, 2003 CAF 133, 2003 CarswellNat 2987, [2003] 4 F.C. 580, 239 F.T.R. 316 (note), 2003 FCA 133, 2003 CarswellNat 679, (sub nom. Canada (Minister of 256 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

Environment) v. Hutchinson) 2004 C.L.L.C. 230-008, [2003] F.C.J. No. 439 (Fed. C.A.) — referred to Kamel c. Canada (Procureur général) (2008), 2008 FC 338, 73 Imm. L.R. (3d) 77, (sub nom. Kamel v. Canada (Attorney General)) 176 C.R.R. (2d) 228, 2008 CF 338, 2008 CarswellNat 893, (sub nom. Kamel v. Canada (Attorney General)) 324 F.T.R. 250 (Eng.), (sub nom. Kamel v. Canada (Attorney General)) 294 D.L.R. (4th) 708, (sub nom. Kamel v. Canada (Attorney Gen- eral)) [2009] 1 F.C.R. 59, 2008 CarswellNat 1912, 86 Admin. L.R. (4th) 1 (F.C.) — distinguished Kamel c. Canada (Procureur général) (2009), (sub nom. Kamel v. Canada (Attorney General)) 195 C.R.R. (2d) 275, (sub nom. Kamel v. Canada (Attorney General)) [2009] 4 F.C.R. 449, 2009 CarswellNat 1004, 2009 FCA 21, (sub nom. Kamel v. Canada (Attorney General)) 388 N.R. 4, 2009 CarswellNat 180, 2009 CAF 21 (F.C.A.) — referred to Khosa v. Canada (Minister of Citizenship & Immigration) (2009), 82 Admin. L.R. (4th) 1, 2009 SCC 12, 2009 CarswellNat 434, 2009 CarswellNat 435, 304 D.L.R. (4th) 1, 77 Imm. L.R. (3d) 1, 385 N.R. 206, (sub nom. Canada (Citizenship & Immigration) v. Khosa) [2009] 1 S.C.R. 339, [2009] S.C.J. No. 12 (S.C.C.) — considered Mahmood v. Canada (Minister of Citizenship & Immigration) (2011), 2011 Car- swellNat 1103, 2011 FC 433, 2011 CarswellNat 1935, 2011 CF 433, 388 F.T.R. 69 (Eng.) (F.C.) — referred to Merham v. Royal Bank (2006), 2006 CF 237, 2006 CarswellNat 1675, 2006 Car- swellNat 452, 2006 FC 237 (F.C.) — referred to Mymryk v. Canada (Attorney General) (2010), 382 F.T.R. 8 (Eng.), 2010 FC 632, 2010 CarswellNat 1736, 2010 CarswellNat 2469, 2010 CF 632 (F.C.) — referred to Natt v. Canada (Minister of Citizenship & Immigration) (2009), 2009 Car- swellNat 512, 2009 FC 238, 80 Imm. L.R. (3d) 80, 2009 CF 238, 2009 Car- swellNat 4928, [2009] F.C.J. No. 281, [2009] A.C.F. No. 281 (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 Ochapowace Indian Band v. Canada (Attorney General) (2007), 2007 FC 920, 2007 CarswellNat 2937, 316 F.T.R. 19 (Eng.), 73 Admin. L.R. (4th) 182, Slaeman v. Canada (Attorney General) Mary J.L. Gleason J. 257

2007 CarswellNat 5532, 2007 CF 920, [2008] 3 F.C.R. 571 (F.C.) — considered Okhionkpanmwonyi v. Canada (Attorney General) (2011), 2011 CF 1129, 2011 CarswellNat 3961, 2011 CarswellNat 4810, 2011 FC 1129 (F.C.) — considered 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.) — followed Sinnathamby v. Canada (Minister of Citizenship & Immigration) (2011), 2011 FC 1421, 2011 CarswellNat 5163, 2011 CF 1421, 2011 CarswellNat 5734 (F.C.) — referred to Statutes considered: Federal Courts Act, R.S.C. 1985, c. F-7 s. 18 — referred to s. 18.1 [en. 1990, c. 8, s. 5] — referred to s. 18.1(4)(d) [en. 1990, c. 8, s. 5] — considered Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 40(1)(a) — considered Rules considered: Federal Courts Rules, SOR/98-106 R. 93 — considered

APPLICATION by two Canadian citizens for judicial review of decision of Passport Canada adjudicator revoking citizens’ passports and imposing five-year ban on obtaining replacements.

Rioth M. Jomha, for Applicants Sherry Daniels, for Respondent

Mary J.L. Gleason J.:

1 This is an application for judicial review from the decision of an adjudicator at Passport Canada, issued on July 19, 2011, in which the adjudicator revoked the applicants’ passports and refused passport services to them for five years. The adjudicator concluded on the balance of probabilities that the applicants had allowed two other individuals to use their Canadian passports and that the applicants had provided false information in support of their replacement applications. The impostors in question were apprehended in Dubai, on January 15, 2010, and were in possession of the applicants’ Canadian passports and Canadian citizen- 258 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

ship cards. The impostors (who were Iraqi citizens) were attempting to use this documentation to board a flight from Dubai to Toronto. The impostors had paid $10,000 U.S., each, for the applicants’ passports. 2 Following the seizure of the applicants’ passports from the impostors, Passport Canada carried out an investigation and eventually made a recommendation to the adjudicator to revoke the applicants’ passports and impose a five-year ban on their obtaining another Canadian passport. The adjudicator accepted the recommendation in his decision of July 19, 2011. In this application for judicial review, the applicants assert that the adjudicator’s decision should be set aside due to flaws in both Passport Canada’s investigation and the adjudicator’s decision. 3 More specifically, in their Memorandum of Fact and Law, the applicants raise several grounds of challenge, arguing that: 1. Passport Canada’s investigation was incomplete and flawed; 2. Passport Canada engaged in an improper assessment of the evidence; 3. The adjudicator’s conclusions were arrived at without a proper (or any) evidentiary basis; 4. The investigative branch of Passport Canada concluded that the applicants were complicit in allowing the impostors to use their passports at the beginning of the investigation and prior to receipt of all of the information; and 5. The evidence does not support a finding on a balance of probabilities that the applicants were parties to the use of the passports by the impostors. 4 During the hearing, counsel for the applicants focussed his submissions on the assertions that there had been a breach of procedural fairness and that the Passport Canada investigators were biased. 5 In terms of procedural fairness, he asserted that the applicants could not understand written English and argued that this inability should have been apparent to Passport Canada, which, accordingly, ought to have convened the applicants to an interview or offered them translation services. He also asserted that there were material facts and evidence contained in the record before the adjudicator which were not disclosed to the applicants. Counsel also suggested that the procedure before the Court resulted in unfairness to his clients, as the affidavit filed by the respondent placing the tribunal record before the Court was signed by a paralegal, who could not be cross-examined in any meaningful way. The Slaeman v. Canada (Attorney General) Mary J.L. Gleason J. 259

applicants allege that they ought to have had the ability to cross-examine the Passport Canada investigators regarding their investigation. 6 In terms of the bias allegation, the applicants assert that Passport Can- ada’s investigators were biased as they came to conclusions before they completed their investigation. 7 The respondent argues that there was no breach of procedural fairness. More specifically, the respondent submits that there was nothing before Passport Canada which would have caused it to doubt the applicants’ ability to understand written English and that in any event, it was incumbent upon the applicants to obtain whatever translation services might have been necessary. In terms of disclosure, the respondent argues that all the material facts were disclosed to the applicants and that Pass- port Canada is not required to disclose every document contained in its investigation file, but, rather, it is sufficient if affected parties are provided with the material facts an investigation discloses and an opportunity to respond to them. The respondent asserts that this occurred in the present case. As for the assertion that it is unfair for the record to have been placed before the Court via the paralegal’s affidavit, the respondent notes that this has been common practice and that it would be highly improper to engage in a cross-examination of the type desired by the applicants as a judicial review application is not a hearing de novo but, rather, a review based on the record before the tribunal. 8 In terms of bias, the respondent submits that there was no inappropriate prejudgment by the Passport Canada investigators. 9 The respondent also argues that many of the grounds raised by the applicants in their Memorandum of Fact and Law seek to have the Court re-weigh the evidence before the adjudicator, which is not the function of a court in a judicial review application. Rather, a court’s function is to assess whether or not the decision was reasonable. On the latter point, the respondent asserts that there was ample evidence before the adjudicator to support his conclusion that the result reached is within the range of possible, acceptable outcomes and, accordingly, that the adjudicator’s decision is reasonable. The respondent also challenges portions of the evidence filed by the applicants in their Motion Record, arguing that they are inadmissible as they contain facts that were not before the adjudicator. 10 In my view, the issues that arise in this application may be stated as follows: 260 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

1. As a preliminary matter, have the applicants filed evidence that was not before the adjudicator, and should this evidence be excluded from consideration in this judicial review application; 2. Were the applicants afforded procedural fairness; 3. Were the Passport Canada investigators biased; and 4. Was the adjudicator’s decision reasonable 11 Each of these issues is discussed below.

Have the applicants raised new evidence that ought not be considered? 12 The respondent submits that paragraphs 2-5, 9 (except the last sentence), 15 and 17 of the Affidavit of Nsaeif Slaeman and paragraphs 2, 3, 4 (except the last sentence) and 9 of the Affidavit of Ramal Roukan are not properly before the Court in this application for judicial review as they contain evidence that was not before the adjudicator. 13 In several of the impugned paragraphs, the applicants attest to their lack of fluency in English language, state that another individual completed all the written representations that they provided to Passport Can- ada and to the Edmonton police, and claim that they did not fully understand what was contained in these representations. They explain that their lack of understanding resulted in certain of the discrepancies which the adjudicator noted in his decision. In another of the impugned paragraphs in Mr. Slaeman’s Affidavit, he suggests that one of his sons, who “has had several problems with the law revolving around drugs, gangs and violence”, might have stolen the passports, without the knowledge of the applicants. The final fact set out in the impugned paragraphs is the applicants’ claim that they do not know the impostors who sought to fraudulently use their passports and citizenship cards to attempt to board a flight from Dubai to Toronto. 14 The respondent is correct in asserting that none of the facts contained in the impugned paragraphs in the applicants’ affidavits was before the adjudicator. This is not disputed by the applicants. While conceding that, normally, a court on judicial review is limited to considering facts contained in the record before the inferior tribunal, the applicants argue that an exception applies in this case, which would render the impugned portions of the applicants’ affidavits admissible. More specifically, they assert that the evidence relates to a challenge to procedural fairness or is general background information, both of which have been found to be Slaeman v. Canada (Attorney General) Mary J.L. Gleason J. 261

admissible in judicial review applications. The respondent, for its part, argues that even if certain portions of the impugned evidence might be relevant to the applicants’ procedural fairness arguments, such evidence will not be admissible unless and until the Court determines that there was a breach of procedural fairness. 15 The general rule, which has been qualified as “trite law”, is that an applicant on judicial review can only rely on evidence that was before the decision-maker (see e.g. Ochapowace Indian Band v. Canada (Attorney General), 2007 FC 920 (F.C.) at para 9, (2007), 316 F.T.R. 19 (Eng.) (F.C.) [Ochapowace Indian Band]). As the respondent correctly notes, there are limited exceptions to this rule, namely when the evidence relates to a challenge to procedural fairness, the tribunal’s jurisdiction or is general background information of assistance to the court (Ochapowace Indian Band). 16 This general rule was recently affirmed by the Federal Court of Ap- peal in Assn. of Universities & Colleges of Canada v. Canadian Copyright Licensing Agency, 2012 FCA 22 (F.C.A.) at paras 17-20. As noted by Justice Stratas in that decision at paras 18-19, the differing roles of the Court and the administrative body underlie the rule: the role of the Court is to “review the overall legality of what the Board has done, not delve into or re-decide the merits of what the Board has done... [the] Court cannot allow itself to become a forum for factfinding on the merits of the matter.” 17 Here, the evidence contained in the impugned portions of the applicants’ affidavits is of two varieties. The evidence regarding lack of fluency in English (set out in paras 2-5 and 9 of Mr. Slaeman’s Affidavit and paras 2-4 of Ms. Roukan’s Affidavit) is relevant to the claim regarding a breach of procedural fairness and to the applicants’ claim that Pass- port Canada should have recognized their lack of fluency and afforded them a hearing or provided them with a translator. 18 On the other hand, the evidence regarding the possibility that Mr. Slaeman’s son might have stolen the passports (set out in para 15 of Mr. Slaeman’s Affidavit) and regarding the applicants’ lack of knowledge of the impostors (set out in para 17 of Mr. Slaeman’s Affidavit and in para 9 of Ms. Roukan’s Affidavit) is not relevant to the applicants’ procedural fairness claims. It is directed toward the merits of the inquiry before the adjudicator, namely, whether or not the applicants allowed the third- party impostors to use their passports. This evidence could have been — but was not — placed before the adjudicator. 262 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

19 Thus, paragraphs 2-5 and 9 of Mr. Slaeman’s Affidavit and paragraphs 2-4 of Ms. Roukan’s Affidavit are admissible in this judicial review application. In this regard, I find no merit in the suggestion of the respondent that the Court should determine admissibility of this type of evidence only after it determines whether or not there is merit to the breach of procedural fairness claim. Were the Court to proceed as the respondent argues it should, it would be engaged in a completely circui- tous exercise where the merits of the claim would depend on evidence which would not be before the Court unless and until the claim is found to be meritorious. Such circularity cannot possibly be the basis upon which admissibility is determined. Rather, in my view, admissibility depends upon the characterization of the evidence. If it fairly relates to a procedural fairness claim, then it is admissible. As noted, the evidence contained in paragraphs 2-5 and 9 of Mr. Slaeman’s Affidavit and paragraphs 2-4 of Ms. Roukan’s Affidavit does relate to their procedural fairness claims. It is therefore properly before the Court. 20 The evidence contained in paragraphs 15 and 17 of Mr. Slaeman’s Affidavit and paragraph 9 of Ms. Roukan’s Affidavit, however, is not admissible. It does not fall within one of the recognized exceptions to the general rule that a court is limited on a judicial review application to considering the record before the tribunal. Indeed, admitting this evidence would be completely inimical to the judicial review process, and would invite applicants to conduct a de novo trial, which is certainly not the requisite inquiry on a judicial review application. As Justice de Mon- tigny noted in Ochapowace Indian Band at para 10, “[t]he purpose of a judicial review application is not to determine whether the decision of a tribunal was correct in absolute terms but rather to determine whether its decision was correct [or reasonable] on the basis of the record before it”. Thus, the respondent’s request to strike portions of the applicants’ affidavits is successful only with respect to paragraphs 15 and 17 of Mr. Slaeman’s Affidavit and paragraph 9 of Ms. Roukan’s Affidavit.

Were the applicants afforded procedural fairness? 21 Turning, next, to the applicants’ procedural fairness claims, there are two separate breaches alleged: first, an allegation that the applicants were not afforded a fair hearing because their language difficulties were not addressed by Passport Canada and, second, an allegation that material evidence was not disclosed to them. In order to address these allegations, it is necessary to determine the requirements for procedural fairness applicable in the context of a Passport Canada investigation. Slaeman v. Canada (Attorney General) Mary J.L. Gleason J. 263

22 As the respondent correctly notes, the principles regarding the requirements of procedural fairness for administrative decisions were set out by the Supreme Court of Canada in Baker v. Canada (Minister of Citizenship & Immigration), [1999] 2 S.C.R. 817, 174 D.L.R. (4th) 193 (S.C.C.) [Baker]. In Baker at paras 21 to 27, the Supreme Court noted that the requirements of procedural fairness will vary depending on the nature of the decision and the impact on the interests of the person affected. Factors relevant to the content of the duty include: the nature of the decision and of the procedures followed by the tribunal in making it or the “closeness of the administrative process to the judicial process”; the requirements of the statute under which the decision is made and the role of the particular decision within the statutory scheme; the importance of the decision to the individuals affected; the legitimate expectations of the affected individuals regarding what procedures would be followed by the tribunal; and the choices made by the tribunal regarding procedure, especially where the tribunal is afforded the right to establish its own procedures. 23 The requirements of procedural fairness in the context of a passport revocation and permanent passport services suspension were considered in Kamel c. Canada (Procureur général), 2008 FC 338, [2009] 1 F.C.R. 59 (F.C.) [Kamel] (which was overturned by the Federal Court of Appeal in Kamel c. Canada (Procureur général), 2009 FCA 21, 195 C.R.R. (2d) 275 (F.C.A.) but not on these points). The situation in Kamel was different from that in the present case in that here the passport services were suspended by Passport Canada for five years. In Kamel, on the other hand, the Minister of Foreign Affairs and International Trade suspended Mr. Kamel’s passport services indefinitely, based on the determination that he posed a security risk. The Minister’s decision turned on a report from the Canadian Security Intelligence Service that was not disclosed to Mr. Kamel. Justice Noël determined that, in not being informed of the substance of the report, Mr. Kamel had been denied procedural fairness which, in the circumstances of that case, required that Mr. Kamal be provided with the ability to engage in “full participation” in the process before the Minister. According to Justice Noël, to ensure this, he needed “... to know exactly what the allegations against him [were] ... and what the information collected in the course of the investigation [was to] ... be able to respond to it completely” (Kamel at para 68). This, however, did not mean that Passport Canada was required to hold a hearing, and, in- 264 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

deed, Justice No¨el noted that in most circumstances a hearing will not be required. Rather, according to Justice No¨el, at para 72: [...] It is sufficient if the investigation includes disclosure to the individual affected of the facts alleged against him and the information collected in the course of the investigation and gives the applicant an opportunity to respond to it fully and informs him of the investigator’s objectives; as well, the decision-maker must have all of the facts in order to make an informed decision. 24 It flows from the foregoing that the applicants’ assertion that they ought to have been afforded a hearing, due to their language difficulties, must fail. Indeed, the applicants have been unable to cite any authority in support of their position that it is incumbent on Passport Canada to assist those being investigated with their language difficulties. 25 Their claim on the language issue, moreover, rests primarily on the extraordinarily narrow basis of a single line in a witness statement, which the applicants provided to the Edmonton police on January 15, 2010, when they claim they first noted that their passports were missing. Pass- port Canada obtained a copy of the statement during the course of its investigation. The statement in question was signed by a third-party, and contains the annotation “this statement is written by my [sic] and directed by Mr. Slaman [sic]”. The applicants argue that this single line, and the fact that the applicants filed two letters that contradicted each other, ought to have put Passport Canada on notice that the applicants lacked sufficient English language abilities to fully comprehend and participate in the investigative process. 26 With respect, such an assertion is entirely without merit. In my view, no reasonable person would be led to any such conclusion, based on this single line in the witness statement and on the contradictory letters filed by the applicants. This is particularly so where, as here, the applicants sent several letters to Passport Canada, in English, and did not once indicate that they were having difficulty understanding the correspondence. On these facts, there was simply no basis upon which Passport Canada could ever have ascertained that the applicants might be facing communication difficulties. 27 More importantly, however, even if this had somehow become apparent to Passport Canada, it was not incumbent on it to arrange for translation facilities for the applicants. The applicants filed with the Court a copy of the “Rules of Procedure in Passport Refusal and Revocation Cases” of Passport Canada, which are available on the Internet. Those Slaeman v. Canada (Attorney General) Mary J.L. Gleason J. 265

rules clearly provide that correspondence with Passport Canada is to be conducted in English or French (i.e. one of Canada’s official languages) and that if someone files a document in a different language, it is up to that individual to provide an accurate translation, accompanied by a declaration from a translator, setting out the translator’s credentials and attesting to the authenticity of the translation. Passport Canada’s procedure in this regard is similar to that of this Court: Rule 93 of the Federal Courts Rules, SOR-98-106 provides that translation shall be arranged for witnesses who do not understand English or French, and that it is the responsibility of the party who calls the witness to arrange and pay for the translator. 28 Thus, the applicants’ first allegation regarding a breach of procedural fairness is without merit because there was no basis upon which Passport Canada could reasonably have determined that the applicants had difficulties communicating in English and because, in any event, even if it had known this to be the case, Passport Canada was under no obligation to hold an oral hearing nor to provide translation services to the applicants. 29 Turning to the applicant’s second allegation, this case and that of Abdi, Hashi and Abshir v The Attorney General of Canada (2012 FC 642, released concurrently with this decision) involve the application of the broad principles from Baker and Kamel to fact patterns that are very different from that in Kamel and from each other. In both this case and that of Abdi, Hashi and Abshir, the applicants argue that Passport Canada ought to have disclosed copies of its entire file to them or, alternatively, that certain pieces of information or, in the case of’ Abdi, Hashi and Ab- shir, certain documents amounting effectively to written advocacy, ought to have been disclosed. 30 In the present case, in support of their allegation that they were denied procedural fairness through non-disclosure, the applicants point to a record of over 100 pages, which was before the adjudicator, and note that they only received a handful of letters from Passport Canada. They argue that the entire record should have been disclosed to them and that certain portions of it contained potentially exculpatory evidence that they did not have the opportunity to expand upon nor to draw to the attention of the adjudicator. More specifically, the applicants assert that Passport Canada undertook several lines of inquiry that proved fruitless. These included Passport Canada’s inability to determine what transpired at the Syrian Embassy in Ottawa when it issued visas in respect of the applicants’ 266 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

passports on January 4, 2010; Passport Canada’s unsuccessful attempt to obtain copies of the 12 Canadian documents that the impostors had in their possession when apprehended in Dubai on January 15, 2010; and Passport Canada’s discovery that a Shoppers Drug Mart receipt that was also in the impostors’ possession was not issued from the same location as where the applicants had their passport photos taken. The applicants argue that had this information been disclosed to them, they could have made arguments in support of their position that they were not complicit in allowing the impostors to use their passports. 31 Apart from the obvious inconsistency of this position with the prior argument regarding the applicants’ inability to understand the documents disclosed to them, the applicants’ second argument has no merit because it is bears no relevance to what actually transpired and the nondisclosed items are completely irrelevant to the determination the adjudicator was called upon to make. Much more relevant matters were disclosed by Passport Canada to the Applicants, which would have necessitated the same response by the applicants regarding their theory of what had transpired, yet, the applicants provided no submissions in their defence to Passport Canada nor to the adjudicator. 32 In terms of the disclosure, on December 3, 2010, Passport Canada’s Chief Investigator wrote a detailed letter to each of the applicants, in which he set out all the material facts that Passport Canada gathered in its investigation. The letters provided in this regard [differences in the letter to Nsaeif Slaeman are noted in square brackets]: Passport Canada received information from the Migration Integrity Officer (MIO) in Dubai that on January 15, 2010, an impostor attempted to board flight EK241 from Dubai to Toronto, using Cana- dian passport WL615418 [or WL615414], issued in your name. The impostor was also found to be in possession of Canadian citizenship certificate B0736668 [or A8422217], issued in your name. The MIO also reported that passport WL615418 [or WL615414] contained a visa from the Syrian Arab Republic, which was issued by the Syrian Embassy in Ottawa on January 4, 2010. Information received from the Syrian Embassy confirmed that they did issue the visa contained in passport WL615418 [or WL615414]. According to the Syrian Embassy, it takes between 7 to 10 days to process an application for Syrian visa, and applicants are advised to take mailing time and holidays into account (i.e. five to eight working days are required). Slaeman v. Canada (Attorney General) Mary J.L. Gleason J. 267

They also note that a photograph of the applicant is required when applying for a visa. Since January 4, 2010, was a Monday, and five to eight working days are required to process a visa application, this would indicate that passport WL615418 [or WL615414] would have to have been received by the Syrian embassy no later than December 24, 2009, which meant that it would have had to have been mailed by no later than December 23, 2009. Passport Canada records indicate that at the time of application for passport WL615418 [or WL615414], you requested that it be sent to you by mail and according to verification from Canada Post, the passport was delivered to you on December 22, 2009. On March 12, 2010, you submitted an application for a Canadian passport to Passport Canada’s Edmonton office. In support of this application, you submitted a Statutory Declaration concerning a lost, stolen, damaged, destroyed or inaccessible Canadian passport or travel document (PPTC 203), dated January 24, 2010. On the PPTC 203, he declared that Canadian passport WL615418 [or WL615414], issued in your name on December 17, 2009, was stolen from your car at the Londonderry Mall in Edmonton on January 15, 2010. You also declared that passport WL615418 [or WL615414] was last seen or used on January 15, 2010, at 1:30 PM. In additional correspondence from you dated May 11, 2010, you explained that after passport WL615418 [or WL615414] was delivered you placed [gave it to your wife who placed] the passport in a black travel document bag, which was placed in a briefcase, and stored in a cabinet in your bedroom. You also indicated that during the first week of January 2010, your husband [you] removed the black travel document bag from your house and placed it in your car, assuming that the passport was still in the bag, and only noticed it was missing on January 15, 2010, when you went to the travel agent at the Londonderry Mall. In an additional letter from you dated September 16, 2010, you indicated that your citizenship card was also stored in the same bag [you indicated that you moved the travel document bag from your house to your car in the first week of January 2010, that your citizenship card and Edmonton picture identification were also stored in the same bag and that you realized that these documents were missing at the same time as the passport]. Passport Canada’s investigations are administrative in nature, and evidence is assessed on a balance of probabilities test — that is, given the information held on file, what is more likely to have happened. 268 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

When considering your explanation, in order for your version of events to be accurate, the following would have needed take place: 1. After passport WL615418 [or WL615414] was delivered to you and stored in your bedroom on December 22, 2009. Be- tween then and December 23, 2009, someone broke into your home, went into your bedroom, removed the briefcase from your cabinet, removed the black travel document bag, removed passport WL615418 [or WL615414], your citizenship card and your city of Edmonton picture ID, then placed the travel document bag back inside the briefcase and then put the briefcase back inside the cabinet and left. As you never mentioned a break-in at your home as a possible explanation as to how passport WL615418 [or WL615414] could have ended up in the possession of an impostor, one must presume that nothing else was taken from your home. 2. After obtaining passport WL615418 [or WL615414] from your home, the thief completed an application for a Syrian visa and mailed it to the Syrian embassy within 24 hours after stealing this passport. During that time, they were also able to locate an individual who looked enough like you that the visa application was not questioned at the Syrian Embassy when photographs on the visa application were compared to your photograph in passport WL615418 [or WL615414]. 3. On January 15, 2010, an impostor attempted to use passport WL615418 [or WL615414] to travel to Canada illegally from Dubai. That same afternoon, after the impostor was apprehended, he realized that passport WL615418 [or WL615414] had been stolen and reported this to police. 33 The December 3, 2010 letters also set out Passport Canada’s conclusion that it was more likely than not that the applicants had allowed another person to use their passports in an attempt to travel to Canada illegally and that the applicants had provided false or misleading statements in support of an application for a new passport. These letters further outlined for the applicants the process that Passport Canada was following, detailed the applicants’ right to file submissions and the deadline for doing so, as well as the consequences of an adverse finding (namely, that the applicants’ passports would be revoked and no new one provided for a period of five years). 34 As noted, the applicants provided absolutely no response to these letters. Passport Canada again wrote them on March 11, 2011, asking them to file submissions, if they had any information that “would contradict or Slaeman v. Canada (Attorney General) Mary J.L. Gleason J. 269

neutralize the information” in the December 3, 2010 letters. Once again, the applicants provided no response whatsoever. It was only after these two requests for submissions that Passport Canada forwarded its submissions to the adjudicator. The applicants did not make any submission to the adjudicator. 35 Before the Court, the applicants assert that someone stole their passports in the manner suggested in Passport Canada’s December 3, 2010 letter. The suggestion is that this person might have been Mr. Slaeman’s son, as set out in paragraph 15 of Mr. Slaeman’s Affidavit. However, no explanation was given as to why the applicants did not make this submission to Passport Canada. This claim is central to their defense. 36 The fruitless lines of inquiry that Passport Canada did not disclose to the applicants have no bearing on the applicants’ ability to make full answer and defence to the case that the Passport Canada investigators had put together. The central point in any defence was the theory that it was Mr. Slaeman’s son who stole and sold the passports. The ability of the applicants to raise this argument was in no way impacted by the non- disclosure of the fruitless inquires that Passport Canada conducted. Moreover, these fruitless lines of inquiry were not considered by Pass- port Canada in its recommendation to the adjudicator nor by the adjudicator in his decision. In addition, and most importantly, the fact that these lines of inquiry proved fruitless is in no way relevant to whether it is more likely than not that the applicants allowed a third party to use their passports. Thus, the fact that Passport Canada conducted certain inquires that led nowhere is simply not material to the case. 37 Kamel did not decide that Passport Canada must disclose every matter it inquires into or even that it must disclose every document that it provides to the decision-maker. Rather, it held that Passport Canada must disclose to both the decision-maker and the individual under investigation all the information it gathered that is relevant to the determination to be made. Arguably, the abovecited passages from Kamel may go slightly further and provide that any information given to the decision-maker must also be provided to the applicant, even if it is immaterial. However, the need to disclose immaterial information was not squarely addressed in Kamel as the case concerned a highly relevant and prejudicial report that was provided to the Minister — but not to Mr. Kamel — which played a central role in the Minster’s decision to permanently suspend passport services for Mr. Kamel. In my view, Justice No¨el’s comments regarding what must be disclosed by Passport Canada should be read 270 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

bearing these facts in mind, and, accordingly, do not stand for the proposition that it is a breach of natural justice for Passport Canada to fail to disclose irrelevant documents that it might send to the adjudicator. While it might be a more prudent practice for Passport Canada to provide identical disclosure to the adjudicator and the individuals under investigation (and thereby ensure it would be immune from challenges of this nature), in my view, there is no breach of natural justice where, as here, buried in the file forwarded to the adjudicator there are a few irrelevant facts that were not disclosed to the individuals under investigation. 38 There is ample authority from other contexts, where the interests concerned are important but do not concern the life or liberty of individuals, to support the notion that the requirements of natural justice are met if the investigator provides a summary of the material facts that are relevant to the determination to be made. For example, in the context of inquiries by visa officers under section 40(1)(a) of the Immigration and Refugee Protection Act, SC 2001, c 27, this Court has determined that the requirements of procedural fairness are met when the visa officers suspect that an applicant for a visa may have made a misrepresentation in his or her application, if the visa officer writes a “fairness letter”, outlin- ing the perceived misrepresentations and inviting the applicant to make responding submissions (see e.g. Sinnathamby v. Canada (Minister of Citizenship & Immigration), 2011 FC 1421, 209 A.C.W.S. (3d) 670 (F.C.); Mahmood v. Canada (Minister of Citizenship & Immigration), 2011 FC 433, 388 F.T.R. 69 (Eng.) (F.C.); and Natt v. Canada (Minister of Citizenship & Immigration), 2009 FC 238, [2009] F.C.J. No. 281 (F.C.)). To somewhat similar effect, in the human rights context, it is sufficient if the Human Rights Commission investigator discloses a summary investigation report (as opposed to all the evidence gathered in the investigation) and provides a copy to the Commission and the affected parties, who are afforded the ability to make submissions to the Commis- sion (see e.g. Merham v. Royal Bank, 2006 FC 237 (F.C.) and Hutchinson v. Canada (Minister of Environment), [2003] 4 F.C. 580 (Fed. C.A.)). Likewise, in the context of transferring prisoners to higher security institutions, this Court has found that disclosure of summaries of the information compiled against a prisoner is sufficient to meet the duty of procedural fairness (see e.g. Mymryk v. Canada (Attorney General), 2010 FC 632, 382 F.T.R. 8 (Eng.) (F.C.)). 39 Therefore, in the circumstances of this case, the failure to disclose the fruitless lines of inquiry that Passport Canada undertook but which led Slaeman v. Canada (Attorney General) Mary J.L. Gleason J. 271

nowhere does not amount to a breach of procedural fairness, as the nondisclosed information was not material to the decision. 40 Thus, both grounds raised by the applicants regarding an alleged breach of procedural fairness are without merit. I also note that there is absolutely no merit whatsoever in the suggestion that the procedures before this Court were unfair in not allowing the applicants to cross-examine the Passport Canada investigators. Such cross-examination would be completely inappropriate in a judicial review application, for the reasons advanced by the respondent. Thus, the applicants were afforded appropriate procedural fairness by Passport Canada and before this Court.

Were the Passport Canada investigators biased? 41 Turning, next, to the applicants’ second ground of attack, it is axio- matic that a decision may be set aside on the ground of bias of the decision-maker, where there is a reasonable apprehension that such bias exists. The test for establishing a reasonable apprehension of bias was restated by the Supreme Court of Canada in R. v. S. (R.D.), [1997] 3 S.C.R. 484, 151 D.L.R. (4th) 193 (S.C.C.) at para 111, where the Court noted that a reasonable apprehension of bias exists where a reasonable and informed person, with knowledge of all the pertinent circumstances, facing the matter realistically and practically, would conclude that the decision-maker’s conduct gives rise to a reasonable apprehension of bias. In determining if there is a reasonable apprehension of bias, the court is to consider whether an informed person would think that it is more likely than not that the decisionmaker, 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 para 29; R. v. S. (R.D.), at para 111). 42 The applicants suggest that Passport Canada investigators demonstrated bias as they “rushed to judgment” and determined the applicants’ guilt before their investigation was completed. In support of this allegation, counsel for the applicants relied principally on draft letters, dated May 28, 2010 that were not sent to the applicants, and which set out the conclusion that Passport Canada believed that the applicants had permitted another person to use their passports. These letters, however, are clearly drafts, as they contain many handwritten amendments and are followed in the record by a memo from a more senior official in Passport Canada to the author of the drafts, pointing out the various issues that still needed to be investigated. These various issues were, in fact, investi- 272 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

gated by Passport Canada. The final versions of the letters that were sent to the applicants on December 3, 2010 were substantially different from the drafts and, as noted, summarized all the material facts that Passport Canada had uncovered during its investigation. 43 In my view, these draft letters do not indicate that Passport Canada pre-judged the situation as it continued its investigation after May 28, and the subsequent investigation included inquiry into possible exculpatory evidence. Accordingly, in my view, there is no basis upon which an informed person would think that it is more likely than not that Passport Canada had prejudged the situation. Moreover, there is no suggestion made that the adjudicator, who actually made the decision that is the subject of this judicial review application, was biased. Accordingly, the applicants’ second basis for challenging the adjudicator’s decision also fails.

Was the adjudicator’s decision reasonable? 44 In so far as concerns the allegation that the decision should be set aside because it is unreasonable, as the respondent correctly notes, the reasonableness standard of review is a highly deferential one. Indeed, a reviewing court may intervene only if it is satisfied that the reasons of the tribunal are not “justified, transparent or intelligible” and if the result reached by the tribunal does not fall “within the range of possible, acceptable outcomes which are defensible in respect of facts and law” (New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9, [2008] 1 S.C.R. 190 (S.C.C.), at para 47). 45 In the present case, the applicants assert that the adjudicator’s factual determinations were unreasonable. In Khosa v. Canada (Minister of Citizenship & Immigration), 2009 SCC 12, [2009] 1 S.C.R. 339 (S.C.C.) [Khosa], the Supreme Court of Canada held that judicial review pursuant to sections 18 and 18.1 of the Federal Courts Act, RSC 1985, c F-7 [FCA] is governed by the common law principles set out in Dunsmuir and that section 18.1(4)(d) of the FCA provides “legislative precision to the reasonableness standard” by which factual findings are to be mea- sured (Khosa at para 46). Section 18.1(4)(d) of the FCA provides that this Court may set aside a tribunal’s decision if it is satisfied that the tribunal “based its decision or order on an erroneous finding of fact it made in a perverse or capricious manner or without regard to the material before it”. Slaeman v. Canada (Attorney General) Mary J.L. Gleason J. 273

46 In the decision at issue in this case, the adjudicator reviewed the procedural history of the various exchanges of correspondence between Passport Canada and the applicants, summarized the positions advanced by Passport Canada and the applicants and conducted a detailed analysis in support of his conclusion upholding Passport Canada’s position to the effect that it was more likely than not that the applicants allowed another person to use their passports and that the applicants had provided false information in respect of their applications to obtain replacement passports. More specifically, the adjudicator relied on the following facts: 1. The applicants did not report the passports as missing to Passport Canada until March 12, 2010. In the statutory declaration they signed on January 24, 2010, in support of the request to obtain replacement passports, the applicants stated that the passports had been stolen from their car in Edmonton on January 15, 2010, and that they had last seen the passports at approximately 1:30 PM that day; 2. On March 11, 2010, however, the applicants provided a contradictory statement to Passport Canada, following Passport Canada’s disclosure to them of the fact that the passports were seized in Dubai on January 15, 2010. Obviously, they could not have been stolen from Edmonton on the same day. Accordingly, the applicants changed their version of events and stated that the last time they remembered seeing their passports was the date they were delivered to them, in late December 2009; 3. Mr. Slaeman and Ms. Roukan provided contradictory versions of events regarding who put the passports away in a black document bag that they claimed was later transferred to their car, without them noticing that the passports were missing from it; 4. In subsequent statements, “answering pointed questions from the Bureau” (adjudicator’s decision, page 6), the applicants provided new dates regarding when they last saw the passports, stating first that they had been put in the glove compartment of their car in “early January” and, thereafter, Mr. Slaeman modified his version of events again and stated that he “believed” he put the passports in the car in the first week of January; 5. The passports contained a Syrian visa, which was issued in Ot- tawa on January 4, 2010. The adjudicator noted that this fact was completely inconsistent with the applicants’ version of events: and 274 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

6. The applicants provided absolutely no explanation as to who could possibly have stolen the passports from their home in the few days between their receipt and the date they would have needed to have been sent to Ottawa to allow for the issuance of the Syrian visas on January 4th. 47 The applicants assert that the adjudicator’s decision was made without regard to the evidence. Throughout their Memorandum of Fact and Law, they posit alternative theories and explanations for what they suggest is more likely to have happened to their passports. They also offer explanations for the inconsistencies in their statements that led the investigators to conclude that their credibility had been undermined. However, as noted, none of these explanations was given to Passport Canada or to the adjudicator. 48 In my view, these explanations and theories are an invitation to the Court to come to its own conclusions, based on evidence that was not before the adjudicator, which is well beyond the scope of judicial review on the reasonableness standard. Rather, what is required is that the Court assess the reasonableness of the adjudicator’s decision based on the record that was before him. And that record reveals that the adjudicator made a completely reasonable decision on the evidence before him and drew completely reasonable inferences. In short, the applicants provided no credible explanation as to what had happened to their passports, and changed their version of events multiple times when, as the investigation progressed, it became apparent that previous versions were untenable. In the circumstances and based on the evidence before the adjudicator, the only reasonable conclusion which could have been drawn is the one the adjudicator reached, namely, that the applicants were complicit in allowing the passports to be utilized by someone else. 49 As for the five-year ban on obtaining new passports, in my view, the adjudicator’s determination on this point is also reasonable. The imposition of a penalty is a highly discretionary element of the decision, and its length is certainly within the range of possible, acceptable outcomes (and coincides with the length of penalties in other cases that have been upheld by this Court such as in Okhionkpanmwonyi v. Canada (Attorney General), 2011 FC 1129 (F.C.) at paras 8-9, (2011), 207 A.C.W.S. (3d) 316 (F.C.)). 50 As the adjudicator rightly noted in his decision, misuses of passport services are “serious matters”. Canada is required to ensure that its passports are not misused to deter illegal migration and meet foreign govern- Slaeman v. Canada (Attorney General) Mary J.L. Gleason J. 275

ments’ expectations regarding the reliability of Canadian travel documents. Failure to do so may have serious consequences, including the facilitation of illegal entries and exits from countries by unidentified individuals and the consequential security risks and impairment to the ability of legitimate Canadian travelers to travel to other countries without undue impediment. Accordingly, the imposition of a five-year ban in the circumstances of this case was entirely reasonable. 51 For these reasons, this application for judicial review will be dismissed.

Judgment THIS COURT’S JUDGMENT is that: 1. This application for judicial review is dismissed. 2. The parties shall file written submissions of no more than five pages with respect to costs by June 8, 2012. They shall have the opportunity, if they wish, to file a reply of up to five pages to each other’s costs submissions by June 15, 2012. 3. I remain seized of the issue of costs in this matter. Application dismissed. 276 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

[Indexed as: Medina Moya v. Canada (Minister of Citizenship and Immigration)] Dugly Medina Moya, Claudia Benevides Gomez, Duglhy Medina, and Marilyn Medina by Her Litigation Guardian Claudia Benevides Gomez, Applicants and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-9573-11 2012 FC 971 Roger T. Hughes J. Heard: July 26, 2012 Judgment: August 7, 2012 Immigration and citizenship –––– Refugee protection — Practice and procedure in refugee claims — Post-determination options — Humanitarian and compassionate review — Best interests of children –––– Immigration officer dismissed applicants’ application for permanent residence on humanitarian and compassionate grounds — Applicants brought application for judicial review of decision — Application granted; decision set aside; matter returned for redetermination; one question certified — Officer was correct in not considering best interests of two children aged 20 and 18 years, since child in s. 25 of Immigra- tion and Refugee Protection Act is person under age of 18 — Question was certified about whether child in s. 25 of Act is restricted to person under age of 18 years — Officer considered best interests of two remaining children aged 11 and newborn against criteria of unusual or undeserved or disproportionate hardship, and no such criteria are provided for in s. 25(1) of Act — Nothing in Guidelines indicates that there must be unusual or disproportionate hardship inflicted on child before best interests consideration is applicable — It was unreasonable and incorrect for officer to consider best interests of children against standard of unusual or disproportionate hardship. Immigration and citizenship –––– Appeals to Federal Court of Appeal and Supreme Court of Canada — Certification of questions by Federal Court Trial Division — Definition of word or phrase –––– Immigration officer dismissed applicants’ application for permanent residence on humanitarian and compassionate grounds — Applicants brought application for judicial review of decision — Application granted; decision set aside; matter returned for redetermination; one question certified — Officer was correct in not considering best interests of two children aged 20 and 18 years, since child in s. 25 of Immigra- tion and Refugee Protection Act is person under age of 18 — Question was cer- Medina Moya v. Canada (MCI) 277

tified about whether child in s. 25 of Act is restricted to person under age of 18 years. Cases considered by Roger T. Hughes J.: Alliance Pipeline Ltd. v. Smith (2011), 328 D.L.R. (4th) 1, 56 C.E.L.R. (3d) 161, 16 Admin. L.R. (5th) 157, [2011] 1 S.C.R. 160, 2011 SCC 7, 2011 Car- swellNat 202, 2011 CarswellNat 203, 102 L.C.R. 1, 412 N.R. 66, [2011] S.C.J. No. 7, [2011] A.C.S. No. 7 (S.C.C.) — followed Hawthorne v. Canada (Minister of Citizenship & Immigration) (2002), 2002 CarswellNat 3444, 2002 FCA 475, 222 D.L.R. (4th) 265, [2003] 2 F.C. 555, 24 Imm. L.R. (3d) 34, 235 F.T.R. 158 (note), 2002 CarswellNat 4276, 297 N.R. 187, 2002 CAF 475, [2002] F.C.J. No. 1687 (Fed. C.A.) — considered Leobrera v. Canada (Minister of Citizenship & Immigration) (2010), 2010 FC 587, 369 F.T.R. 178 (Eng.), (sub nom. Saporsantos Leobrera v. Canada (Minister of Citizenship & Immigration)) [2011] 4 F.C.R. 290, 2010 Car- swellNat 1515, 2010 CF 587, 2010 CarswellNat 2588, [2010] F.C.J. No. 692 (F.C.) — followed Mangru v. Canada (Minister of Citizenship & Immigration) (2011), 2011 CF 779, 2011 CarswellNat 2443, 2011 FC 779, 2011 CarswellNat 3296, 2 Imm. L.R. (4th) 105, 392 F.T.R. 333 (Eng.), [2011] A.C.F. No. 978, [2011] F.C.J. No. 978 (F.C.) — considered Naredo v. Canada (Minister of Citizenship & Immigration) (2000), 7 Imm. L.R. (3d) 291, 192 D.L.R. (4th) 373, 2000 CarswellNat 1607, (sub nom. Naredo and Arduengo v. Canada (Minister of Citizenship and Immigration)) 187 F.T.R. 47, [2000] F.C.J. No. 1250 (Fed. T.D.) — considered New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1, 69 Admin. L.R. (4th) 1, 69 Imm. L.R. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) [2008] 1 S.C.R. 190, 844 A.P.R. 1, (sub nom. Dunsmuir v. New Brunswick) 2008 C.L.L.C. 220-020, D.T.E. 2008T-223, 329 N.B.R. (2d) 1, (sub nom. Dunsmuir v. New Brunswick) 170 L.A.C. (4th) 1, (sub nom. Dunsmuir v. New Brunswick) 291 D.L.R. (4th) 577, 2008 CarswellNB 124, 2008 CarswellNB 125, 2008 SCC 9, 64 C.C.E.L. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) 95 L.C.R. 65, [2008] S.C.J. No. 9, [2008] A.C.S. No. 9 (S.C.C.) — considered Ramsawak v. Canada (Minister of Citizenship & Immigration) (2009), 2009 CF 636, 2009 CarswellNat 5688, 86 Imm. L.R. (3d) 97, 2009 FC 636, 2009 CarswellNat 3534, [2009] F.C.J. No. 1387, [2009] A.C.F. No. 1387 (F.C.) — considered Sinniah v. Canada (Minister of Citizenship & Immigration) (2011), 2011 CF 1285, 2011 FC 1285, 2011 CarswellNat 4688, 2011 CarswellNat 5749, 5 Imm. L.R. (4th) 313, [2011] F.C.J. No. 1568 (F.C.) — considered Swartz v. Canada (Minister of Citizenship & Immigration) (2002), 2002 CFPI 268, 2002 CarswellNat 1751, 2002 FCT 268, 2002 CarswellNat 516, 218 278 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

F.T.R. 23, 19 Imm. L.R. (3d) 1, [2002] F.C.J. No. 340 (Fed. T.D.) — considered Yoo v. Canada (Minister of Citizenship & Immigration) (2009), 2009 Car- swellNat 877, 2009 FC 343, 80 Imm. L.R. (3d) 97, 343 F.T.R. 253 (Eng.) (F.C.) — considered Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Generally — referred to s. 2(2) — considered s. 25 — considered s. 25(1) — considered s. 25.1(1) [en. 2010, c. 8, s. 5] — considered s. 30 — considered s. 60 — considered s. 97(1)(b) — considered Interpretation Act, S.M. 2000, c. 26 Generally — referred to s. 67 “child” — considered Treaties considered: Convention on the Rights of the Child, 1989, C.T.S. 1992/3; 28 I.L.M. 1456; 3 U.N.T.S. 1577; G.A. Res. 44/25 Article 1 — referred to Article 41 — referred to Regulations considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Immigration and Refugee Protection Regulations, SOR/2002-227 Generally — referred to s. 2 “dependent child” — referred to

APPLICATION by applicants seeking judicial review of decision denying them permanent residence on humanitarian and compassionate grounds.

Ronald Poulton, for Applicants David Cranton, for Respondent

Roger T. Hughes J.:

1 This is an application for judicial review of a decision of a Senior Immigration Officer of Citizenship and Immigration Canada dated No- vember 9, 2011 wherein the Applicants’ application for permanent residence in Canada on humanitarian and compassionate grounds was not Medina Moya v. Canada (MCI) Roger T. Hughes J. 279

granted. The Applicants seek to set aside that decision and have it rede- termined by a different Officer. For the reasons that follow I find that I will allow the application and will certify a question. 2 The Applicants are a family. The father and mother are citizens of Colombia. They fled to the United States where their first child was born; they were deported to Colombia where their second child was born; they returned to the United States where their third child was born; then the family came to Canada where their fourth child was born. 3 This case turns upon the “best interests of a child” as provided for in section 25 of the Immigration and Refugee Protection Act, SC 2001, as amended (IRPA); therefore, it is important to note the status of each child at the time that the decision under review was made: • Duglhy (son) - dual citizen of Colombia and the United States, age 20, living at home, has part-time work and is enrolled at Humber College in Toronto • Melanie (daughter) - citizen of Colombia- age 18, living at home, enrolled in the University of Toronto • Marilyn (daughter) - dual citizen of Colombia and the United States, age 11, living at home and going to school • Michelle (daughter) - born in Canada, less than one year old, living at home 4 In the “Factors for Consideration” portion of the decision at issue, the Officer noted the following as to “Establishment in Canada”: • The family received social assistance until the applicant obtained work as a janitor in November of 2010 • Applicant and spouse have taken language training and performed volunteer service at a food bank. • All members of the family attend and volunteer at church • Children have been attending school with good results in Canada. — • Son is beginning college. • Some family members in Canada: Co-applicant’s half-brother and his family. The applicant’s sister-in-law and her children are also resident in Canada. • Personal reference from language teacher, pastor, community organization and a personal acquaintance 280 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

As to “Best Interest of the Child (BIOC)” the Officer noted: The eldest child of this family is a dual U.S. and Colombian citizen: The second child is a Colombian citizen and Convention refugee in Canada. Neither is eligible for BIOC as they were over 18 years of age when application was received. The third child is a U.S. and Co- lombia dual citizen, aged 11, who has adapted well to life in Canada. The fourth child is a Canadian-born infant. 5 The Officer provided much detail later in the reasons. I will refer to this detail when discussing the issues.

Issues 6 The argument as presented by Counsel for each party at the hearing focused on two issues: 1. What is a “child” for the purposes of section 25 of the IRPA, and was the Officer correct in not considering the son, Duglhy (20) and daughter, Melanie (18) in dealing with section 25? 2. Did the Officer err in considering the “best interests” of the two young children against a standard of unusual or disproportionate hardship? I will consider these issues, in turn.

Issue #1: What is a “child” for the purposes of section 25 of the IRPA, and was the Officer correct in not considering the son, Duglhy (20) and daughter, Melanie (18) in dealing with section 25? 7 In the summary of the Officer’s reasons respecting best interests of the child (BIOC), which have been set out earlier, the Officer wrote in respect of Duglhy (20) and Melanie (18): Neither is eligible for BIOC consideration as they were over 18 when the application was received. 8 In the more detailed portion of the reasons, the Officer wrote: I note for the record that Melanie, born 17 November 1992, was 18 years of age and Duglhy, born 05 December 1990, was 20 years of age when this application was received. Their respective ages at that time prevent me from assessing their particular situations under BIOC criteria. I have assessed Marilyn, aged eleven, and Michelle, born in Canada this year, under BIOC provisions. Duglhy is assessed under other factors raised in this application. Melanie is a protected person in Canada and is not a part of this application, but her circum- Medina Moya v. Canada (MCI) Roger T. Hughes J. 281

stances speak to family reunification and will be considered in that part of this assessment. 9 This position is consistent with the Guidelines published by Citizen- ship and Immigration Canada, IP 5, which states, in part: 5.12 Children — Best interests of a child In an examination of the circumstances of a foreign national under A25(1), IRPA introduces a statutory obligation to take into account the best interests of a child who is directly affected by a decision under this section. This codifies departmental practice into legislation, eliminating any doubt that the interests of a child will be taken into account. This applies to children under the age of 18 years as per the Convention on the Rights of the Child...... Children 18 years and over BIOC must be considered when a child is under 18 years of age at the time the application is received. There may, however, be cases in which the situation of older children is relevant and should be taken into consideration in an H&C assessment. If, however, they are not under 18 years of age, it is not a best interests of the child case. 10 Guidelines are, at best, what has sometimes been called “soft law”. If they have incorrectly interpreted or applied the law, then they should not be followed. The question here is whether the law has been correctly set out in the Guidelines or correctly or reasonably followed by the Officer. 11 Neither IRPA nor its Regulations define a “child”, whether for the purposes of section 25 or otherwise. I note that in 2001 a Bill was introduced in Parliament, Bill C-384 that would have amended a number of Federal statutes to conform with the Convention on the Rights of the Child including a provision that would have defined a “child” by means of the Interpretation Act to be a person less than eighteen years old (Sec- tion 17 of the Bill). The Bill was never passed. Manitoba’s Interpretation Act, CCSM c. 180, does provide such a definition. In a sense everyone is a “child” of their parents and never stops being a child in relation to one’s parents. However it is reasonable to interpret a “child” as provided for in section 25 as something different than any person whatsoever. 12 Counsel for the Applicants urges that a “child” as provided for in section 25 of IRPA is the same as a “dependant child” as defined in the Immigration and Refugee Protection Regulations, SOR/2002-227 (IRPR), section 2 “dependent child”, which includes, among other persons, a biological child less than 22 years of age who has been and is 282 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

financially dependent on the parents. Counsel points out that both section 2(2) and 25 of the IPRA provide that the definitions in the Regulations can apply to and be considered to be incorporated into the Act. 13 IRPA also refers to a “minor child” (sections 30 & 60) without defining what a “minor child” is. Is a “minor” child something different than a “child”? There is no clear answer to this question. 14 Justice Shore has recently made an extensive review of the law respecting the meaning of the word “child” in the context of section 25 of IRPA “best interests of the child” in Leobrera v. Canada (Minister of Citizenship & Immigration), 2010 FC 587 (F.C.). He concluded that a “child” must be considered in the context of the Convention on the Rights of the Child; he wrote at paragraphs 77 to 80: 77 The courts have a specific role to play in the Canadian system of constitutional supremacy. Acknowledging the roles of the executive branch, the legislative branch and recognizing the judiciary’s role as one of interpretation of the law. It is, thus, incumbent on the Federal Court to follow the interpretation of the legislation in jurisprudence issued by the Federal Court of Appeal and the Supreme Court. 78 It is the Court’s conclusion that the definition of “dependent child” is not determinative of whether a person is deserving of a best interests of the child analysis. The Court finds, based on the entirety of section 2 of the IRPR, that the definition of “dependent child” was not intended to apply to the IRPA. 79 As has been shown, the definition of “child” is undefined in the IRPA and the jurisprudence makes it clear that the best interests of the child analysis has a special relationship with the Convention on the Rights of the Child. Therefore, the Court is of the opinion, based on the above reasoning, that the importance that the Convention on the Rights of the Child has been unduly minimized by the earlier jurisprudence on this matter. 80 Although the Court is sympathetic to the position of the Appli- cant, as the policy behind analyzing the best interests of the child is, as recognized by the Convention on the Rights of the Child, partially based on the physical and mental vulnerabilities of children; and it also recognizes that persons with disabilities may also be vulnerable, to varying degrees, the Court cannot agree that dependency and vul- nerability are the defining characteristics of “childhood” for the purposes of section 25. The Court consequently finds that dependent adults should not be included in the analysis of the best interests of the child. Medina Moya v. Canada (MCI) Roger T. Hughes J. 283

15 The Convention on the Rights of the Child, Article 1, states: For the purposes of the present Convention, a child means every human being below the age of eighteen years, unless under the law applicable to the child, majority is earlier attained. 16 Applicants’ Counsel argues first that Justice Shore’s conclusions are obiter since, in looking at paragraphs 74 and 83 of his Reasons, it is clear that he determined the case on the basis that the Officer had improperly removed evidence from the file and not on the basis of a definition of a “child”. Second, Counsel argues that Article 41 of the Convention permits a broader interpretation of the word “child” under the law of an adhering State such as Canada. He argues that case law such as Naredo v. Canada (Minister of Citizenship & Immigration), [2000] F.C.J. No. 1250 (Fed. T.D.); Swartz v. Canada (Minister of Citizenship & Immigra- tion), [2002] F.C.J. No. 340 (Fed. T.D.); Ramsawak v. Canada (Minister of Citizenship & Immigration), [2009] F.C.J. No. 1387 (F.C.); and Yoo v. Canada (Minister of Citizenship & Immigration), 2009 FC 343 (F.C.), are representative of cases where the Court has considered persons over the age of eighteen in dealing with “best interests of a child” under section 25, thus the law of Canada has broadened to include children of the age of 18 in considering the best interests of a “child”. 17 However I find that I agree with the reasoning of Justice Shore in Leobrera, supra, and find that a “child” as referred to in section 25 of IRPA is a person under the age of 18 years. 18 I conclude in respect of ISSUE#1 that the Officer was correct in not considering Duglhy (20) and Melanie (18) under the provision of section 25 of IRPA, “best interests of the child.”

Issue #2: Did the Officer err in considering the “best interests” of the two young children against a standard of unusual or disproportionate hardship? 19 Consideration was given by the Officer to Marilyn (11) and Michelle (newborn) in respect of “best interests of the child” under section 25 of IRPA. The Officer set out those considerations in the detailed part of the Reasons, parts of which I will set out with emphasis added to illustrate what is at issue: Marilyn Medina was born in the U.S. and has never been to Colom- bia, where she also holds citizenship (Record of Examination of Claudia Denevides Gomez, 16 September 2008.) Based upon her parents need to take extensive ESL training upon their arrival in Can- 284 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

ada, it is reasonable to presume that she speaks Spanish. In 2008, at the age of eight years, she left the United States and took up residence in Canada. While there is little information before me particular to her circumstances, I accept counsel’s submission that she, along with her older siblings, has “been studying at school and doing very well,” This evidence supports a finding that Marilyn did, and likely could again, adapt to the circumstances of a move to what would be, to her, an unfamiliar country — Colombia. While I do not discount the difficulties and hardships that would be encompassed for a young girl in a compulsory international move, I find little to support a finding that the specific hardships posed to Marilyn in relocating would be particularly unusual or disproportionate. I find the best interests of the infant Canadian-citizen child Michelle lies with her parents, and it is presumed that she would accompany her parents to Colombia in the event they are unsuccessful in this application. While it may be argued the two younger children in this family would have better access to education and health care in Can- ada, I find little evidence of circumstances, such as particular health concerns, to indicate that any comparative shortcomings in these areas in Colombia would significantly compromise the best interests of these children. As previously noted, the principal applicant was a businessman in Colombia, comes from an entrepreneurial family, and has family members — parents and siblings — to assist them in Co- lombia. As such, there is little reason to believe the children will fall into poverty or that their fundamental health and education needs will not be met in Colombia...... I have also considered the hardships that would result for these children — and Marilyn in particular — as a result of a break-up of the family unit. The refusal of this application would separate her from her older sister, and very likely also her brother as he is an adult and a U.S. citizen and might choose to return to the United States rather than accompany his family to Colombia. Such separations are not unusual in families when older children reach their maturity, but I am cognizant these separations typically arise in a natural or gradual fashion and that a sudden and potentially lengthy separation from her older siblings would pose a hardship to Marilyn. These emotional hardships have been factored into my decision, but I do not find them to be unusual or disproportionate so as to warrant the exercise of my discretion solely on grounds of best interests of the children affected. Medina Moya v. Canada (MCI) Roger T. Hughes J. 285

..... I have considered the best interests of the two minor children and have found that both the act of relocating to what is an essentially foreign country, in conjunction with a separation from her eldest sister and a possible separation from her brother, would likely pose hardships to the third child, Marilyn, in particular. I do not, however, find that such hardships have been demonstrated to be unusual or disproportionate in view of the fact that Marilyn has previously demonstrated the ability to adapt well to a similar change and in view of the fact that her older siblings have matured and are now pursuing adult endeavours which would inevitably lead to changes in the existing domestic arrangements and sibling relationships, though admittedly not typically such significant or lengthy separations as may result here. In considering family reunification, I have given particular attention to the emotional and practical hardships that would accrue to the two adult children through a severance of family relationships, as these hardships principally arise from the actions of their parents and are thus undeserved by them. The consideration in this case, however, is whether the hardships of the separation would be both unusual and undeserved or disproportionate. I find, after careful consideration that they are not. These children are not, in fact, children any longer. The son is an adult who has options for education or employment in the U.S. and Colombia. The eldest daughter is admittedly young to live at a great distance from her parents, but if she were resident in Colombia and was offered a place at a Canadian university in a city where she had close family members, I find it is unlikely her family would discourage her from going on the basis that she is too young or would be at risk of harm including drugs and prostitution, or that the hardships of separation from her family would be too great. I comprehend that the separation resulting from a refusal of this application may be longer than what might be normally experienced by a young person embarking on an education abroad: I can not speculate in what manner or in what time frame the family may resolve the barriers to their reunification that have resulted from choices made over time by the principal and co-applicant. I have both individually and globally considered the circumstances of each of the applicants as well as those of the two family members not included in this application with specific regard to their establishment, the best interests of the children affected, and the hardships that would arise from the severance of family relationships. While I have not found unusual and undeserved or disproportionate hardships, I have identified a number of sympathetic factors. Against 286 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

these factors, I have weighed the acts and omissions of the principal applicant and his spouse which have led the family to their current circumstance. 20 It is clear from reading these reasons that the Officer considered the “best interests of the children” against a criteria of unusual or undeserved or disproportionate hardship. No such criteria are provided for in section 25(1) of IRPA, which I repeat: 25.1 (1) The Minister may, on the Minister’s own initiative, examine the circumstances concerning a foreign national who is inadmissible or who does not meet the requirements of this Act and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligations of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to the foreign national, taking into account the best interests of a child directly affected. 25. (1) Le ministre doit, sur demande d’un etranger´ se trouvant au Canada qui est interdit de territoire ou qui ne se conforme pas a` la présente loi, et peut, sur demande d’un etranger´ se trouvant hors du Canada, etudier´ le cas de cet etranger;´ il peut lui octroyer le statut de résident permanent ou lever tout ou partie des critères et obligations applicables, s’il estime que des considérations d’ordre humanitaire relatives a` l’étranger le justifient, compte tenu de l’intérêt supérieur de l’enfant directement touché. 21 By way of contrast, section 97(1)(b) of IRPA clearly, when dealing with a “person in need of protection”, speaks of a “risk to life or a risk of cruel and unusual treatment or punishment”. That criteria does not apply to section 25, which deals with humanitarian and compassionate considerations. Section 25 requires that the Officer “examine the circumstances concerning a foreign national” taking into account the best interests of a child directly affected. 22 The Federal Court of Appeal in Hawthorne v. Canada (Minister of Citizenship & Immigration), 2002 FCA 475 (Fed. C.A.) has set out how an Officer is to consider the best interests of a child in the context of a humanitarian and compassionate application under section 25 of IRPA. Décary JA, for the majority, wrote at paragraphs 4 to 6 and 9: 4 The “best interests of the child” are determined by considering the benefit to the child of the parent’s non-removal from Canada as well as the hardship the child would suffer from either her parent’s removal from Canada or her own voluntary departure should she wish to accompany her parent abroad. Such benefits and hardship are two sides of the same coin, the coin being the best interests of the child. Medina Moya v. Canada (MCI) Roger T. Hughes J. 287

5 The officer does not assess the best interests of the child in a vac- uum. The officer may be presumed to know that living in Canada can offer a child many opportunities and that, as a general rule, a child living in Canada with her parent is better off than a child living in Canada without her parent. The inquiry of the officer, it seems to me, is predicated on the premise, which need not be stated in the reasons, that the officer will end up finding, absent exceptional circumstances, that the “child’s best interests” factor will play in favour of the non- removal of the parent. In addition to what I would describe as this implicit premise, the officer has before her a file wherein specific reasons are alleged by a parent, by a child or, as in this case, by both, as to why non-removal of the parent is in the best interests of the child. These specific reasons must, of course, be carefully examined by the officer. 6 To simply require that the officer determine whether the child’s best interests favour non-removal is somewhat artificial - such a finding will be a given in all but a very few, unusual cases. For all practical purposes, the officer’s task is to determine, in the circumstances of each case, the likely degree of hardship to the child caused by the removal of the parent and to weigh this degree of hardship together with other factors, including public policy considerations, that mili- tate in favour of or against the removal of the parent...... 9 Fourth, “hardship” is not a term of art. As noted in section 6.1 of Chapter IP 5 of the Immigration Manual (reproduced at para. 30 of my colleague’s reasons), the administrative definition of “unusual and undeserved hardship” and “disproportionate hardship” in the Manual are “not meant as ‘hard and fast’ rules” and are, rather, “an attempt to provide guidance to decision makers when they exercise their discretion”. It is obvious, for example, that the concept of “undeserved hardship” is ill-suited when assessing the hardship on inno- cent children. Children will rarely, if ever, be deserving of any hardship. 23 The Guidelines IP 5 previously referred to set out a number of factors which, generally, may be considered in respect of the “best interests of a child”. They are: Generally, factors relating to a child’s emotional, social, cultural and physical welfare should be taken into account when raised. Some examples of factors that applicants may raise include but are not limited to: • the age of the child; 288 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

• the level of dependency between the child and the H&C applicant or the child and their sponsor; • the degree of the child’s establishment in Canada; • the child’s links to the country in relation to which the H&C assessment is being considered; • the conditions of that country and the potential impact on the child; • medical issues or special needs the child may have; • the impact to the child’s education; and • matters related to the child’s gender. 24 There is nothing set out in these Guidelines indicating that there must be unusual or disproportionate hardship inflicted on a child before a “best interests” consideration is applicable. 25 I am mindful of the recent decision of the Supreme Court of Canada in Alliance Pipeline Ltd. v. Smith, 2011 SCC 7 (S.C.C.), which somewhat blurs the bright line distinction made by that Court in New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9 (S.C.C.), as to the standard of review. Fish J, for the majority, in Smith wrote at paragraph 26: 26 Under Dunsmuir, the identified categories are subject to review for either correctness or reasonableness. The standard of correctness governs: (1) a constitutional issue; (2) a question of “general law ‘that is both of central importance to the legal system as a whole and outside the adjudicator’s specialized area of expertise’” (Dunsmuir, at para. 60 citing Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63 [2003] 3 S.C.R. 77, at para. 62); (3) the drawing of jurisdictional lines between two or more competing specialized tribunals; and (4) a “true question of jurisdiction or vires” (paras. 58-61). On the other hand, reasonableness is normally the governing standard where the question: (1) relates to the interpretation of the tribunal’s enabling (or “home”) statute or “statutes closely connected to its function, with which it will have particular familiarity” (para. 54); (2) raises issues of fact, discretion or policy; or (3) involves inextricably intertwined legal and factual issues (paras. 51 and 53-54). 26 I would afford a standard of reasonableness in dealing with the Guidelines cited above; however, the Officer has not applied those Guidelines when adopting a standard of unusual or disproportionate hardship in considering the best interests of a child. Medina Moya v. Canada (MCI) Roger T. Hughes J. 289

27 This Court has repeatedly held in cases, including Sinniah v. Canada (Minister of Citizenship & Immigration), 2011 FC 1285 (F.C.); Mangru v. Canada (Minister of Citizenship & Immigration), 2011 FC 779 (F.C.) and others, that it is unreasonable and incorrect for an Officer to consider the “best interests of a child” against a standard of unusual or disproportionate hardship. 28 Therefore, in the present case, the Application must be allowed in that the Officer applied the wrong test in considering the best interests of the minor children. 29 I have considered whether this is a proper case for a certified question. In respect of ISSUE #1, a question will be certified. I have received submissions from Counsel for both parties in this regard. I will accept a simpler version of the question proposed by Counsel for the applicants: “Is the “child” spoken of in section 25 of IRPA restricted to a person under the age of 18 years?” 30 ISSUE #2 is fact-specific to the considerations of the Officer in this particular case. No question will be certified as to this Issue. 31 There is no special reason for awarding costs.

Judgment FOR THE REASONS PROVIDED: THIS COURT ORDERS AND ADJUDGES that: 1. The Application is allowed; 2. The matter is returned for reconsideration by a different Officer; 3. The following question is certified: Is the ‘child’ spoken of in section 25 of IRPA restricted to a person under the age of 18 years? 4. No Order as to costs. Application granted; decision set aside; matter returned for redetermination; one question certified. 290 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

[Indexed as: El-Kashef v. Canada (Minister of Citizenship and Immigration)] Tania El-Kashef, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: T-1739-11 2012 FC 1151 André F.J. Scott J. Heard: July 5, 2012 Judgment: September 28, 2012 Immigration and citizenship –––– Citizenship — Application for grant of or retention of citizenship — Appeals — General principles –––– Applicant was denied application for Canadian citizenship — Applicant appealed decision — Appeal dismissed — Citizenship judge reasonably determined that applicant failed to meet requirements of s. 5(1) of Citizenship Act — Citizenship judge’s decision was reasonable and fell within range of possible and acceptable outcomes which were defensible in respect of facts and law — Evidence adduced by applicant did not demonstrate that she had met residency threshold — Conse- quently, judge did not have to consider applying qualitative test. Cases considered by André F.J. Scott J.: Alfonso c. Canada (Ministre de la Citoyenneté & de l’Immigration) (2002), 2002 CFPI 1221, 2002 CarswellNat 3352, (sub nom. Alfonso v. Canada (Minister of Citizenship & Immigration)) [2003] 2 F.C. 683, 2002 FCT 1221, 2002 CarswellNat 4000, (sub nom. Alfonso v. Canada (Ministre de la Citoyenneté & de l’Immigration)) 230 F.T.R. 197, [2002] F.C.J. No. 1660 (Fed. T.D.) — referred to Bhatti v. Canada (Minister of Citizenship & Immigration) (2010), 2010 Car- swellNat 28, 2010 FC 25, 87 Imm. L.R. (3d) 166, 2010 CarswellNat 743, 2010 CF 25, [2010] F.C.J. No. 26 (F.C.) — referred to El Fihri c. Canada (Ministre de la Citoyenneté & de l’Immigration) (2005), 2005 CF 1106, 2005 CarswellNat 2422, 2005 CarswellNat 5265, 2005 FC 1106, [2005] F.C.J. No. 1373 (F.C.) — referred to Goudimenko v. Canada (Minister of Citizenship & Immigration) (2002), 2002 CFPI 447, 2002 CarswellNat 937, 2002 FCT 447, [2002] F.C.J. No. 581 (Fed. T.D.) — referred to Haddad c. Canada (Ministre de la Citoyenneté & de l’Immigration) (2003), 2003 CarswellNat 1640, 2003 CFPI 692, 2003 FCT 692, 2003 CarswellNat 2373, 33 Imm. L.R. (3d) 241 (Fed. T.D.) — referred to El-Kashef v. Canada (MCI) 291

Haddad c. Canada (Ministre de la Citoyennet´e & de l’Immigration) (2003), 2003 CarswellNat 1641, 2003 CFPI 690, 2003 FCT 690, 2003 CarswellNat 3021 (Fed. T.D.) — referred to Henoud c. Canada (Ministre de la Citoyennet´e & de l’Immigration) (2003), 2003 CarswellNat 2765, 2003 FCT 691, 2003 CarswellNat 1672, 2003 CFPI 691, 239 F.T.R. 166, [2003] A.C.F. No. 889, [2003] F.C.J. No. 889 (Fed. T.D.) — referred to Khan v. Canada (Minister of Citizenship & Immigration) (2011), 97 Imm. L.R. (3d) 50, 2011 CF 215, 2011 CarswellNat 1353, 285 F.T.R. 72 (Eng.), 2011 CarswellNat 416, 2011 FC 215 (F.C.) — considered Khosa v. Canada (Minister of Citizenship & Immigration) (2009), 82 Admin. L.R. (4th) 1, 2009 SCC 12, 2009 CarswellNat 434, 2009 CarswellNat 435, 304 D.L.R. (4th) 1, 77 Imm. L.R. (3d) 1, 385 N.R. 206, (sub nom. Canada (Citizenship & Immigration) v. Khosa) [2009] 1 S.C.R. 339, [2009] S.C.J. No. 12 (S.C.C.) — referred to Koo, Re (1992), 19 Imm. L.R. (2d) 1, [1993] 1 F.C. 286, 59 F.T.R. 27, 1992 CarswellNat 83, 1992 CarswellNat 621, [1992] F.C.J. No. 1107 (Fed. T.D.) — followed N.L.N.U. v. Newfoundland & Labrador (Treasury Board) (2011), 2011 Car- swellNfld 414, 2011 CarswellNfld 415, 2011 SCC 62, 38 Admin. L.R. (5th) 255, (sub nom. Nfld. and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board)) 2011 C.L.L.C. 220-008, (sub nom. Newfoundland & Labrador Nurses’ Union v. Newfoundland & Labrador (Treasury Board)) 424 N.R. 220, 340 D.L.R. (4th) 17, D.T.E. 2012T-7, (sub nom. Newfoundland & Labrador Nurses’ Union v. Newfoundland & Labrador (Treasury Board)) [2011] 3 S.C.R. 708, 213 L.A.C. (4th) 95, 97 C.C.E.L. (3d) 199, (sub nom. Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board)) 986 A.P.R. 340, (sub nom. Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board)) 317 Nfld. & P.E.I.R. 340, [2011] S.C.J. No. 62 (S.C.C.) — referred to Navidi v. Canada (Minister of Citizenship & Immigration) (2012), 2012 CF 372, 2012 CarswellNat 1037, 2012 FC 372, 2012 CarswellNat 1916 (F.C.) — referred to New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1, 69 Admin. L.R. (4th) 1, 69 Imm. L.R. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) [2008] 1 S.C.R. 190, 844 A.P.R. 1, (sub nom. Dunsmuir v. New Brunswick) 2008 C.L.L.C. 220-020, D.T.E. 2008T-223, 329 N.B.R. (2d) 1, (sub nom. Dunsmuir v. New Brunswick) 170 L.A.C. (4th) 1, (sub nom. Dunsmuir v. New Brunswick) 291 D.L.R. (4th) 577, 2008 CarswellNB 124, 2008 CarswellNB 125, 2008 SCC 9, 64 C.C.E.L. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) 95 L.C.R. 65, [2008] S.C.J. No. 9, [2008] A.C.S. No. 9 (S.C.C.) — considered 292 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

Owusu-Ansah v. Canada (Minister of Employment & Immigration) (1989), 98 N.R. 312, 8 Imm. L.R. (2d) 106, 1989 CarswellNat 53, [1989] F.C.J. No. 442 (Fed. C.A.) — referred to Pourghasemi, Re (1993), 1993 CarswellNat 77, 19 Imm. L.R. (2d) 259, 62 F.T.R. 122, [1993] F.C.J. No. 232 (Fed. T.D.) — considered Pourzand v. Canada (Minister of Citizenship & Immigration) (2008), 2008 CF 395, 2008 CarswellNat 1860, 2008 CarswellNat 831, 2008 FC 395, 71 Imm. L.R. (3d) 289, [2008] F.C.J. No. 485 (F.C.) — referred to Tanveer v. Canada (Minister of Citizenship & Immigration) (2010), 2010 CF 565, 2010 CarswellNat 1498, 2010 FC 565, 2010 CarswellNat 2641 (F.C.) — referred to Statutes considered: Citizenship Act, R.S.C. 1985, c. C-29 Generally — referred to s. 5(1) — considered s. 5(1)(c) — considered s. 5(1)(e) — considered s. 5(3) — considered s. 5(4) — considered s. 14(5) — pursuant to s. 15(1) — considered

APPEAL by applicant for appeal of decision of citizenship judge which denied application for citizenship.

Me Stephen J. Fogarty, for Applicant Me Anne-Ren´ee Touchette, Me Denisa Chrastinova, for Respondent

Andr´e F.J. Scott J.: I. Introduction 1 This is an appeal by Ms. Tania El-Kashef (Ms. El-Kashef), pursuant to subsection 14(5) of the Citizenship Act, RSC 1985, c C-29 [Act], of a decision rendered by citizenship judge Alain Ayache, dated August 12, 2011, denying her application for Canadian citizenship. 2 For the following reasons, this appeal is dismissed.

II. Facts 3 Ms. El-Kashef is a 27 year old citizen of Egypt. She acquired her Canadian residency in 2001. El-Kashef v. Canada (MCI) Andr´e F.J. Scott J. 293

4 On June 27, 2006, Ms. El-Kashef and her family made an application for Canadian citizenship in Mississauga, Ontario. On April 21, 2008, they withdrew their application. They filed a second application on June 17, 2008. 5 Ms. El-Kashef declared trips outside Canada for a total of 198 days of absence over the period. 6 In November 11, 2008, further to a request from an immigration officer, Ms. El-Kashef provided the following documents in support of her application: 1. A letter by Me Hrair Djihanian dated November 11, 2008; 2. Miramar Communications’ certificate of incorporation; and 3. An extract from the “Registraire des Entreprises du Qu´ebec” on the East West Communications Company. 7 On July 25, 2011, Ms. El-Kashef appeared before the citizenship judge. On August 12, 2011, the citizenship judge rendered his decision rejecting her application on the following grounds: “She failed her knowledge test and therefore did not demonstrate that she had sufficient knowledge of Canada and of the responsibilities and privileges of citizenship (subsection 5(1)(e) of the Act); She did not prove that she was physically present in Canada for at least 1095 days within the three years prior to her citizenship Appli- cation: her testimony was improbable, contradictory and not supported by any evidence.” (see Respondent’s Record, vol. 1, at page 344) 8 Furthermore, the citizenship judge decided not to make a recommendation for an exercise of discretion under subsections 5(3), 5(4) and 15(1) of the Act.

III. Legislation 9 Paragraphs 5(1)(c) and (e); and subsections 5(3), 5(4) and 15(1) of the Act provide as follows: 5. (1) The Minister shall grant citizenship to any person who (c) is a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act, and has, within the four years immediately preceding the date of his or 294 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

her application, accumulated at least three years of residence in Canada calculated in the following manner: (i) for every day during which the person was resident in Canada before his lawful admission to Canada for permanent residence the person shall be deemed to have accumulated one-half of a day of residence, and (ii) for every day during which the person was resident in Canada after his lawful admission to Canada for permanent residence the person shall be deemed to have accumulated one day of residence; ... (e) has an adequate knowledge of Canada and of the responsibilities and privileges of citizenship; ... 5. (3) The Minister may, in his discretion, waive on compassionate grounds, (a) in the case of any person, the requirements of paragraph (1)(d) or (e); (b) in the case of a minor, the requirement respecting age set out in paragraph (1)(b), the requirement respecting length of residence in Canada set out in paragraph (1)(c) or the requirement to take the oath of citizenship; and (c) in the case of any person who is prevented from understanding the significance of taking the oath of citizenship by reason of a mental disability, the requirement to take the oath. 5. (4) In order to alleviate cases of special and unusual hardship or to reward services of an exceptional value to Canada, and notwithstanding any other provision of this Act, the Governor in Council may, in his discretion, direct the Minister to grant citizenship to any person and, where such a direction is made, the Minister shall forthwith grant citizenship to the person named in the direction. 15. (1) Where a citizenship judge is unable to approve an application under subsection 14(2), the judge shall, before deciding not to approve it, consider whether or not to recommend an exercise of discretion under subsection 5(3) or (4) or subsection 9(2) as the circumstances may require. 5. (1) Le ministre attribue la citoyenneté a` toute personne qui, a` la fois: c) est un résident permanent au sens du paragraphe 2(1) de la Loi sur l’immigration et la protection des réfugiés et a, dans les quatre ans qui ont précédé la date de sa demande, résidé El-Kashef v. Canada (MCI) André F.J. Scott J. 295

au Canada pendant au moins trois ans en tout, la durée de sa résidence etant´ calculée de la manière suivante: (i) un demi-jour pour chaque jour de résidence au Canada avant son admission a` titre de résident permanent, (ii) un jour pour chaque jour de résidence au Canada après son admission a` titre de résident permanent; [...] e) a une connaissance suffisante du Canada et des respon- sabilités et avantages conférés par la citoyenneté; 5. (3) Pour des raisons d’ordre humanitaire, le ministre a le pouvoir discrétionnaire d’exempter: a) dans tous les cas, des conditions prévues aux alinéas (1)d) ou e); b) dans le cas d’un mineur, des conditions relatives soit a` l’âge ou a` la durée de résidence au Canada respectivement enonc´´ ees aux alinéas (1)b) et c), soit a` la prestation du serment de citoyenneté; c) dans le cas d’une personne incapable de saisir la portée du serment de citoyenneté en raison d’une déficience mentale, de l’exigence de prêter ce serment. 5. (4) Afin de remédier a` une situation particulière et inhabituelle de détresse ou de récompenser des services exceptionnels rendus au Canada, le gouverneur en conseil a le pouvoir discrétionnaire, malgré les autres dispositions de la présente loi, d’ordonner au ministre d’attribuer la citoyenneté a` toute personne qu’il désigne; le ministre procède alors sans délai a` l’attribution. 15. (1) Avant de rendre une décision de rejet, le juge de la citoyen- neté examine s’il y a lieu de recommander l’exercice du pouvoir dis- crétionnaire prévu aux paragraphes 5(3) ou (4) ou 9(2), selon le cas.

IV. Issues and standard of review A. Issues 1. Did the citizenship judge err by finding that Ms. El-Kashef failed to meet the requirements set out in paragraphs 5(1)(c) and (e) of the Act? 2. Did the citizenship judge breach his duty of procedural fairness? 296 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

B. Standard of review 10 The applicable standard of review of a decision rendered by a citizenship judge is the standard of reasonableness (see Bhatti v. Canada (Minister of Citizenship & Immigration), 2010 FC 25 (F.C.) at para 14). In reviewing the citizenship judge’s decision on the standard of reasonableness, the Court will consider “the existence of justification, transparency and intelligibility within the decision-making process” and “whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law” (New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9 (S.C.C.) at para 47 [Dunsmuir]). 11 Furthermore, issues of procedural fairness and natural justice require the application of the standard of correctness (Navidi v. Canada (Minister of Citizenship & Immigration), 2012 FC 372 (F.C.) at para 13; Khosa v. Canada (Minister of Citizenship & Immigration), 2009 SCC 12 (S.C.C.) at para 43).

V. Parties’ submissions A. Ms. El-Kashef’s submissions 12 Ms. El-Kashef submits that considering the number of errors committed by the judge on the issue of her credibility, the decision must bet set aside. She also claims that the judge failed to properly assess all of the evidence adduced before him (see Owusu-Ansah v. Canada (Minister of Employment & Immigration), [1989] F.C.J. No. 442 (Fed. C.A.); and Pourzand v. Canada (Minister of Citizenship & Immigration), 2008 FC 395 (F.C.)). Ms. El-Kashef argues that the judge failed to take into account all of the documentary evidence demonstrating her presence in Canada for 2004 and 2005. He did not mention the Egyptian Government document showing her entries to and exits from Egypt. Ms. El-Kashef underlines that it would be unconceivable to travel without having entry stamps or visas from other countries in her passport. She also submits that even if the stamps do not demonstrate that she was physically in Canada at the time, it does not contradict her testimony (see Tanveer v. Canada (Minister of Citizenship & Immigration), 2010 FC 565 (F.C.) at para 11). 13 Ms. El-Kashef notes that the judge failed to take in consideration her Revenue Canada assessment for the year 2004 and a document showing that she was a director of Miramar Corporation. The judge also failed to mention the following documents: a letter from the Bank of Montreal El-Kashef v. Canada (MCI) Andr´e F.J. Scott J. 297

confirming that she was a client at that bank from June 2003 to March 2009, a letter from the Rotary Club letter confirming her participation in the organization of fund raising events and her donation to the Montreal Children’s Hospital on May 3, 2005. 14 Ms. El-Kashef further submits that the citizenship judge improperly applied the strict residency test in Pourghasemi, Re (1993), 62 F.T.R. 122 (Fed. T.D.) [Pourghasemi]. Having assessed improperly the evidence adduced, Ms. El-Kashef alleges that the judge could not have possibly applied the proper criterion. The failure to properly address the existence of more than one test and to consider the application of the three residency tests is a reviewable error. Ms. El-Kashef also relies on Khan v. Canada (Minister of Citizenship & Immigration), 2011 FC 215 (F.C.) at para 31 [Khan], where I held that “I am of the opinion that Takla and the more recent line of cases that require a Citizenship Judge to consider the Koo factors, once a threshold of residency is established (as referred to by Justice Harrington in paragraph 21 of Salim, above), should be applied to the present case”. Some recent judgments of this Court have held that where a citizenship Applicant does not meet the physical presence test, the citizenship judge must proceed to the qualitative assessment and apply the qualitative test set out in Koo, Re (1992), [1993] 1 F.C. 286 (Fed. T.D.) at para 10 [Koo]). 15 It is submitted by Ms. El-Kashef that the judge’s reliance on the analysis of immigration officers and the failure to assess all of the evidence adduced constitutes a failure to exercise his jurisdiction under the Act. 16 Ms. El-Kashef also contends that the judge breached his duty of procedural fairness as he did not provide sufficient reasons to explain his refusal to make a recommendation under subsection 15(1) of the Act and failed to properly administer the citizenship knowledge of Canada test. She is also of the opinion that the judge did not provide sufficient reasons for dismissing her application under paragraphs 5(1)(c) and (e) of the Act.

B. Respondent’s submissions 17 The Respondent underlines that in order for the citizenship judge to accede to her demand, Ms. El-Kashef had to meet all the requirements found in subsection 5(1) of the Act. When an Applicant fails to meet these requirements, a citizenship judge has the discretion, under subsections 5(3), 5(4) and 15(1) of the Act, to make a recommendation to the Minister for a waiver on these requirements. The failure to make such 298 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

recommendation cannot be appealed, according to the Respondent, who relies on the following cases: Koo cited above at paras 25 to 27; Goudimenko v. Canada (Minister of Citizenship & Immigration), [2002] F.C.J. No. 581 (Fed. T.D.)at para 22; and Henoud c. Canada (Ministre de la Citoyenneté & de l’Immigration), [2003] F.C.J. No. 889 (Fed. T.D.) at para 12. 18 The Respondent further asserts that it is not uncommon, nor does it amount to an error, for a citizenship judge to address both the residency and the adequate knowledge of Canada test requirements under subsections 5(1)(c) and 5(1)(e) of the Act (Alfonso c. Canada (Ministre de la Citoyenneté & de l’Immigration) (2002), [2003] 2 F.C. 683 (Fed. T.D.); Haddad c. Canada (Ministre de la Citoyenneté & de l’Immigration), 2003 FCT 692 (Fed. T.D.); Haddad c. Canada (Ministre de la Citoyenneté & de l’Immigration), 2003 FCT 690 (Fed. T.D.); and El Fihri c. Canada (Ministre de la Citoyenneté & de l’Immigration), 2005 FC 1106 (F.C.)). 19 In the case at hand, according to the Respondent, the Applicant failed her knowledge test and did not adduce sufficient probative evidence before the citizenship judge to allow the exercise of his discretion and make a favorable recommendation to the Minister for a waiver on humanitarian and compassionate grounds. 20 In addition, the Respondent submits that the judge correctly applied the physical presence test, following the Pourghasemi decision. Ms. El- Kashef failed to prove that she was physically present for at least 1 095 days in Canada. The citizenship judge, according to the Respondent, properly questioned the lack of probative evidence presented with respect to the period extending from June 17, 2004 to August 28, 2005. 21 Furthermore, the Respondent affirms that Ms. El-Kashef is not credible as her testimony was both contradictory and implausible. 22 Finally, the Respondent argues that the citizenship judge’s reasons for decision were adequate and sufficient. He clearly explained why he refused Ms. El-Kashef’s application. El-Kashef v. Canada (MCI) André F.J. Scott J. 299

VI. Analysis 1. Did the citizenship judge err by finding that Ms. El-Kashef failed to meet the requirements set out in paragraphs 5(1)(c) and (e) of the Act? 23 The citizenship judge did not err by finding that Ms. El-Kashef failed to meet the requirements of the subsection 5(1) of the Act. 24 To qualify for her Canadian citizenship, Ms. El-Kashef had to demonstrate that she was physically present at least 1 095 days in Canada within a time frame of four years preceding her citizenship application. 25 Ms. El-Kashef failed to adduce sufficient probative evidence to demonstrate that she had fulfilled the requirements of the Act particularly with respect to the period extending from June 17, 2004 to August 28, 2005. In that respect, the citizenship judge wrote the following remarks: “[Ms. El-Kashef] submitted many other documents that do not place her physically or confirm her presence on balance for a minimum of 1, 095 days in Canada; [Ms. El-Kashef] submitted pay slips from her work at San REMO Boutique after the appropriate period. This boutique’s [owner] is the same as the applicant’s [lawyer], namely Esq. Hrair Djihanina. When I asked the lawyer about the Boutique in question he answered that it was his brother’s. Since the information is beyond the examined period and is not concerned by this analysis, I disregarded the information and did not take it into consideration. ... Since the supporting documents that have been returned by [Ms. El- Kashef] are not sufficient and since she failed to satisfactorily demonstrate that she was physically present in Canada during the examined period, and precisely from June 14th, 2004 until at least Au- gust 24th, 2005; Due to the report on file from Immigration at P.E.T. that place [Ms. El-Kashef] for a maximum of 886 days from May 14th, 2004 until May 14th, 2008 (see Justice Muldoon in Re: Pourghasemi); Due to the multiple unsupported claims she has made, on balance [Ms. El-Kashef] failed to satisfy me that she was physically present in Canada for 1,095 days of her material time period; As such, she has not met the residence requirements of s. 5(1)(c) of the Act.” (see citizenship judge’s decision at pages 14 and 15 of the Certified Tribunal Record) 300 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

26 The evidence adduced by Ms. El-Kashef does not demonstrate her physical presence in Canada between June 2004 and August 2005. For instance, the letter from the Bank of Montreal only mentions that “Tania El Kashef est cliente avec la Banque de Montréal depuis le 20 juin 2003 et que tout est en règle a` ce jour” (see Respondent’s Record, vol.1, at page 238). Furthermore, her donation to the Montreal Children’s Hospi- tal Foundation, on May 3, 2005, does not necessarily demonstrate that she was physically present in Canada at the time (see Respondent’s Re- cord, vol. 1, at page 324). The letter from Mahesh Sharma of the Mon- treal-Westward Rotary Club is also silent as to the dates of her involvement in the fund raising activities (see Respondent’s Record, vol. 1, at page 325). 27 Ms. El-Kashef submitted an income tax form issued by the Canada Revenue Agency for the year 2004, stating that she earned 5 250 $. Again, this form does not attest that the revenue earned over the period can be attributable to a physical presence through employment in Can- ada. Moreover, Ms. El-Kashef affirms that between 2004 and 2005, she was a director of Miramar Communications. The Notice of Director issued by Industry Canada does not prove her presence in Canada. 28 In addition, the Court must underline that she waited 14 days after her hearing before the citizenship judge to adduce additional evidence to explain her failure to provide more documentary evidence for the period questioned by the citizenship judge. She wrote that she had lost most of her documents when she moved. 29 More importantly, it is apparent, from a list of her travels provided by the Ministry of the Interior of Egypt, that she was in Europe in 2004 and 2005 (see Respondent’s Record, vol. 1, at page 24). 30 The judge had no obligation to apply the qualitative test as set out in Koo. Contrary to Ms. El-Kashef’s interpretation of my judgment in Khan cited above, a threshold of residency must be met before a citizenship judge elects to apply the Koo decision. In the present case, the evidence adduced by Ms. El-Kashef did not demonstrate that she had met that residency threshold. Consequently, the judge did not have to consider applying the qualitative test. 31 For these reasons, the citizenship judge’s decision is reasonable and “falls within the range of possible and acceptable outcomes which are defensible in respect of the facts and law” (see Dunsmuir cited above at para 47). El-Kashef v. Canada (MCI) André F.J. Scott J. 301

2. Did the citizenship judge breach his duty of procedural fairness? 32 The citizenship judge did not breach his duty of procedural fairness. There is no evidence on file to substantiate Ms. El-Kashef’s claim that the judge misapplied the knowledge of Canada test. In reading the judge’s decision, it is also clear that he provided sufficient reasons for his decision. “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, the Dunsmuir criteria are met” (see N.L.N.U. v. Newfoundland & Labrador (Treasury Board), 2011 SCC 62 (S.C.C.) at para 16). The judge’s decision is indeed within the range of acceptable outcomes.

VII. Conclusion 33 This appeal of the citizenship judge’s decision is dismissed. The judge reasonably determined that Ms. El-Kashef failed to meet the requirements of subsection 5(1) of the Act.

Judgment THIS COURT’S JUDGMENT is that 1. This appeal of the citizenship judge’s decision is dismissed. 2. The whole with costs to the Respondent. Appeal dismissed. 302 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

[Indexed as: Anabtawi v. Canada (Minister of Citizenship & Immigration)] Tarek Anabtawi, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-4242-11 2012 FC 856 John A. O’Keefe J. Heard: January 17, 2012 Judgment: July 5, 2012 Immigration and citizenship –––– Admission — Immigrants — Skilled workers — General principles –––– Foreign national was citizen of Jordan who completed degree in Canada — Foreign national then obtained post-graduate work permit and worked for recruitment company — Foreign national applied for permanent residence under Canadian experience class of skilled workers — Letter from recruitment company said foreign national was human resources officer — During phone verification, recruitment company said foreign national was merely customer service representative — Visa officer denied application based on lack of requisite experience — Foreign national brought application for judicial review — Application dismissed — Visa officer had applied correct legal test for assessing foreign national’s work experience — Visa officer had not erred in applying requirements for federal skilled worker class to Canadian experience class — Nothing suggested Parliament intended different requirements — Section 15(2)(b) of Interpretation Act supported similar treatment — There was sufficient evidence before visa officer to support his questioning of foreign national’s actual employment duties — Foreign national had not explained discrepancy despite being given opportunity to do so. Immigration and citizenship –––– Admission — Application for temporary resident or immigrant visa — Powers and duties of visa or immigration officer — Procedural fairness –––– Foreign national was citizen of Jordan who completed degree in Canada — Foreign national then obtained post-graduate work permit and worked for recruitment company — Foreign national applied for permanent residence under Canadian experience class of skilled workers — Letter from recruitment company said foreign national was human resources officer — During phone verification, recruitment company said foreign national was merely customer service representative — Visa officer denied application based on lack of requisite experience — Foreign national brought application for judicial review — Application dismissed — Foreign national failed to establish Anabtawi v. Canada (MCI) 303 breach of procedural fairness — Foreign national had been advised of visa officer’s concerns arising from discrepancy between letter and phone verification — Foreign national had not been entitled to hearing to disabuse credibility concerns — Foreign national had been given opportunity to explain discrepancy — Information provided by foreign national had not been aimed at explaining discrepancy — Visa officer had not been required to provide further explanations for decision. Cases considered by John A. O’Keefe J.: Alliance Pipeline Ltd. v. Smith (2011), 328 D.L.R. (4th) 1, 56 C.E.L.R. (3d) 161, 16 Admin. L.R. (5th) 157, [2011] 1 S.C.R. 160, 2011 SCC 7, 2011 Car- swellNat 202, 2011 CarswellNat 203, 102 L.C.R. 1, 412 N.R. 66, [2011] S.C.J. No. 7, [2011] A.C.S. No. 7 (S.C.C.) — referred to Khan v. Canada (Minister of Citizenship & Immigration) (2009), 2009 Car- swellNat 1498, 2009 FC 302, [2009] F.C.J. No. 676 (F.C.) — referred to Khosa v. Canada (Minister of Citizenship & Immigration) (2009), 82 Admin. L.R. (4th) 1, 2009 SCC 12, 2009 CarswellNat 434, 2009 CarswellNat 435, 304 D.L.R. (4th) 1, 77 Imm. L.R. (3d) 1, 385 N.R. 206, (sub nom. Canada (Citizenship & Immigration) v. Khosa) [2009] 1 S.C.R. 339, [2009] S.C.J. No. 12 (S.C.C.) — referred to Liu v. Canada (Minister of Citizenship & Immigration) (2006), 2006 CF 1025, 2006 CarswellNat 4376, 2006 FC 1025, 2006 CarswellNat 2622, [2006] F.C.J. No. 1289 (F.C.) — considered Malik v. Canada (Minister of Citizenship & Immigration) (2009), 2009 CF 1283, 2009 CarswellNat 5826, 2009 FC 1283, 2009 CarswellNat 4345, [2009] F.C.J. No. 1643 (F.C.) — referred to N.L.N.U. v. Newfoundland & Labrador (Treasury Board) (2011), 2011 Car- swellNfld 414, 2011 CarswellNfld 415, 2011 SCC 62, (sub nom. Nfld. and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board)) 2011 C.L.L.C. 220-008, (sub nom. Newfoundland & Labrador Nurses’ Union v. Newfoundland & Labrador (Treasury Board)) 424 N.R. 220, 340 D.L.R. (4th) 17, D.T.E. 2012T-7, (sub nom. Newfoundland & Labrador Nurses’ Union v. Newfoundland & Labrador (Treasury Board)) [2011] 3 S.C.R. 708, 213 L.A.C. (4th) 95, 97 C.C.E.L. (3d) 199, (sub nom. Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board)) 986 A.P.R. 340, (sub nom. Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board)) 317 Nfld. & P.E.I.R. 340, [2011] S.C.J. No. 62 (S.C.C.) — 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, 304 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

2008 CarswellNB 125, 2008 SCC 9, 64 C.C.E.L. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) 95 L.C.R. 65, [2008] S.C.J. No. 9, [2008] A.C.S. No. 9 (S.C.C.) — referred to Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 12(2) — referred to s. 72(1) — pursuant to Interpretation Act, R.S.C. 1985, c. I-21 s. 15 — considered s. 15(2)(b) — considered Regulations considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Immigration and Refugee Protection Regulations, SOR/2002-227 Generally — referred to Pt. 6 — referred to Pt. 6, Div. 1 — referred to s. 80(3) — considered s. 80(7) — referred to s. 87.1 [en. SOR/2008-254] — considered s. 87.1(2)(a) [en. SOR/2008-254] — considered

APPLICATION by foreign national for judicial review of decision of visa officer denying application for permanent residence.

Matthew Jeffery, for Applicant David Knapp, Susan Gans, for Respondent

John A. O’Keefe J.:

1 This is an application pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 (the Act) for judicial review of a decision of an officer of the visa section of the Canadian Consulate in Detroit, USA (the officer), dated June 7, 2011, wherein the applicant was denied permanent residence under the Canadian experience class of subsection 12(2) of the Act and subsection 87.1 of the Immigration and Refugee Protection Regulations, SOR/2002-227 (the Regulations). This decision was based on the officer’s finding that the applicant did not meet the statutory skilled work experience requirement. 2 The applicant requests that the officer’s decision be quashed and the matter be remitted for redetermination by a different officer. Anabtawi v. Canada (MCI) John A. O’Keefe J. 305

Background 3 The applicant, Tarek Anabtawi, is a citizen of Jordan. 4 The applicant entered Canada in 2004 as a student. He completed a Bachelor of Arts degree at the University of Toronto in June 2008. After graduation, the applicant obtained a post-graduate work permit, valid between January 2009 and March 2010. During that time, he was employed with Prime Force Inc. (Prime Force), a recruitment company located in Mississauga, Ontario. 5 In May 2010, the applicant submitted an application for permanent residence under the Canadian experience class of skilled workers. This class was introduced in 2008 for temporary foreign workers or graduates with Canadian work experience. Applications for permanent residence under this class are assessed based on official Canadian language proficiency, Canadian skilled work experience and Canadian educational credentials (section 87.1 of the Regulations). Further details on this program are provided in Citizenship and Immigration Canada’s Overseas Process- ing Manual, OP-25. 6 In his application, the applicant included an employment letter from Mr. Fadek Zighmi, the president of Prime Force. This letter indicated that the applicant had worked as a full time human resources officer from January 2009 through March 2010 and listed the applicant’s main duties. The applicant stated that his work duties corresponded to those listed for human resources officers, referred to as “Personnel and Recruitment Of- ficer”, under National Occupation Classification (NOC) 1223. 7 On March 19, 2011, the officer reviewing the application called Mr. Zighmi to confirm the details of the applicant’s employment. Mr. Zighmi’s description of the applicant’s role at Prime Force differed significantly from that provided in his employment letter. For example, according to Mr. Zighmi, the applicant was a customer service representative and his duties included answering telephones, receiving applications from candidates and opening files. In addition, rather than forty employees, there were only three employees working in Prime Force’s office. 8 Based on these inconsistencies, the officer emailed the applicant on March 29, 2011 and notified him that there was a concern that his main duties at Prime Force were not those of a human resources officer. The applicant was given 45 days to provide additional information and/or documentation to disabuse the officer of his concerns. 306 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

9 The applicant sent an email response to the officer on May 12, 2011. The applicant explained the different tasks he undertook while working for Prime Force which he believed fulfilled the duties of a human resources officer. He also explained that while only three employees worked in Prime Force’s office, the company sent more than forty temporary workers to other companies. The applicant stated that both he and his employer would be willing to submit an affidavit attesting to these facts.

Officer’s Decision 10 In a letter dated June 7, 2011, the officer denied the applicant’s application. The Global Case Management System (GCMS) notes that form part of the officer’s decision explain the reasons for the denial. 11 The officer was not satisfied that the applicant met the skilled work experience requirement. The officer explained that he reviewed the documentation submitted with the application, including the applicant’s reply from May 12, 2011. However, based on these submissions and the officer’s verification with the applicant’s employer (Mr. Zighmi), the officer was not satisfied that the applicant performed all of the essential duties and a substantial number of the main duties of a human resources officer, as described under NOC 1223. As such, the officer was not satisfied that the applicant met the statutory requirements and therefore refused the applicant’s application.

Issues 12 The applicant submits the following points at issue: 1. What is the standard of review? 2. Did the officer err by importing irrelevant criteria when assessing work experience? 3. Was the officer’s decision that the applicant did not have relevant work experience unreasonable? 4. Are the reasons for decision deficient? 5. Should costs be awarded to the applicant? 13 I would rephrase the issues as follows: 1. What is the appropriate standard of review? 2. Did the officer apply the correct legal test for assessing the applicant’s work experience? Anabtawi v. Canada (MCI) John A. O’Keefe J. 307

3. Did the officer err in assessing the applicant’s work experience? 4. Did the officer deny the applicant procedural fairness?

Applicant’s Written Submissions 14 The applicant submits that the officer’s finding that the applicant did not have the required work experience is reviewable on a reasonableness standard. Conversely, the question of whether the officer imported irrelevant criteria when assessing work experience is reviewable on a correctness standard. Similarly, the adequacy of reasons is reviewable on a correctness standard. 15 The applicant submits that the Regulations only require applicants to have full time or full time equivalent work experience in an occupation defined as skilled under the NOC. The Regulations do not state how work experience should otherwise be assessed. The applicant submits that the officer erred by importing criteria listed in the Regulations for the federal skilled worker class when assessing the applicant’s work experience under the Canadian experience class. Specifically, the officer required the applicant to have “performed all of the essential duties and a substantial number of main duties”. However, this is a requirement under subsection 80(3) of the Regulations which applies to the federal skilled worker class; a different type of application pertaining to a different subject matter. The applicant submits that as this rigid criteria was not included under section 87.1 of the Regulations, it must be presumed that Parliament intended that a more lenient or flexible approach be taken towards the Canadian experience class as compared to the federal skilled worker class. The officer therefore erred in importing this criterion from the federal skilled worker class and applying it to his assessment of the applicant’s Canadian experience class application. 16 In the alternative, the applicant submits that the officer erred in not appreciating that the applicant did meet the criteria applied to the assessment of his application. A comparison of the duties set out in the applicant’s submissions (including his employment letter and subsequent email response) and those listed under NOC 1223 shows that the applicant met all of the duties set out in the main statement for the occupation and met a substantial number of the other main duties. The officer did not provide any explanation as to why the evidence submitted by the applicant did not satisfy the officer’s concerns. 17 Finally, the applicant submits that the officer did not provide any reasoning or explanation in the decision for his findings. In addition, if the 308 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

officer disbelieved the applicant’s submissions on his work experience, he questioned the applicant’s credibility in so doing. The applicant submits that it is trite law that the officer should then have provided the applicant with an opportunity to respond to his concerns. Although the officer provided the applicant with an opportunity to respond to his concerns by email, he erred in law by not explaining to the applicant why he disbelieved him or granting him an interview and providing him with a proper opportunity to disabuse him of his concerns. 18 The applicant submits that the officer’s errors in this case were egre- gious and justify the awarding of costs.

Respondent’s Written Submissions 19 The respondent agrees with the applicant that the officer’s decision on whether the applicant had the required work experience is reviewable on a reasonableness standard. However, contrary to the applicant’s submissions, the respondent submits that the issue of whether the officer applied the wrong legal test to his finding on the applicant’s work experience is reviewable on a reasonableness standard. Nevertheless, even on a correctness standard, the officer did not err in applying the legal test. 20 The respondent submits that as section 87.1 of the Regulations does not provide a specific test for determining the “12 months of full-time equivalent Canadian skilled-work experience” requirement, the officer had to look elsewhere in the Regulations for direction on how to evaluate the applicant’s work experience. 21 The respondent submits that the application of the federal skilled worker class to the Canadian experience class is confirmed by paragraph 15(2)(b) of the Interpretation Act, RSC, 1985, c I-21, which provides that: 15. (2) Where an enactment contains an interpretation section or provision, it shall be read and construed ... (b) as being applicable to all other enactments relating to the same subjectmatter unless a contrary intention appears. 15. (2) Les dispositions d´efinitoires ou interpr´etatives d’un texte: ... b) s’appliquent, sauf indication contraire, aux autres textes portant sur un domaine identique. Anabtawi v. Canada (MCI) John A. O’Keefe J. 309

22 The respondent submits that the definition of work experience under subsection 80(3) and section 87.1 of the Regulations relate to identical subject matter and the two provisions are found under the same general heading. Further, no contrary intention appears in the legislation. If Par- liament had intended a more flexible approach for the Canadian experience class, the respondent submits that a separate definition would have been provided so that section 15 of the Interpretation Act would not apply. The officer therefore applied the correct test in evaluating the applicant’s work experience. The officer’s ultimate finding was within the range of reasonable outcomes based on the contradictory evidence before him, for which no explanation was provided. 23 The respondent also submits that the officer’s reasons were adequate and there was no breach of procedural fairness. It is inappropriate to require an administrative officer to give as detailed reasons as those that would be expected of administrative tribunals that render decisions after adjudicative hearings. Nevertheless, the officer’s reasons and his earlier email clearly explain why the applicant’s application was rejected. The fact that the officer did not repeat these concerns in his decision does not render his reasons deficient. As there was no doubt as to why the application was rejected, there was no breach of procedural fairness. 24 Further, the respondent submits that the officer was not under any obligation to conduct an interview to confront the applicant with his concerns. The officer’s email was sufficient for notifying the applicant of the officer’s concerns and for granting him an opportunity to respond. The fact that the applicant’s response was inadequate did not impose a positive obligation on the officer to inquire further. As such, there was no breach of procedural fairness. 25 Finally, the respondent submits that as the applicant has not demonstrated any special reasons warranting costs, none should be awarded in this case. 26 In the respondent’s further memorandum of argument, the respondent also submits that the letter from Mr. Zighmi that was included in the applicant’s record should not be considered in this application. In his letter, Mr. Zighmi asserted that there was no contradiction between the letter of employment initially submitted and the phone conversation he had with the officer in March 2011. However, Mr. Zighmi’s letter is dated July 22, 2011; over a month after the officer’s decision letter was issued. As reviewing Courts are bound on judicial review to the record that was 310 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

before the decision maker, the respondent submits that Mr. Zighmi’s letter should not be considered by this Court on this application.

Analysis and Decision Issue 1 What is the appropriate standard of review? 27 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). 28 This application pertains to the Canadian experience class under the skilled workers division (Division 1) of the permanent residence economic classes (Part 6) of the Regulations. As this class was only recently introduced, no jurisprudence has yet developed on the related statutory provisions. However, significant jurisprudence has developed on the older federal skilled worker class, also contained under Division 1 of Part 6 of the Regulations. Officer’s determinations under this latter class have been held to involve findings of fact and law that are reviewable on a standard of reasonableness (see Malik v. Canada (Minister of Citizenship & Immigration), 2009 FC 1283, [2009] F.C.J. No. 1643 (F.C.) at paragraph 22; and Khan v. Canada (Minister of Citizenship & Immigration), 2009 FC 302, [2009] F.C.J. No. 676 (F.C.) at paragraph 9). Officer’s determinations under the Canadian experience class also involve findings of fact and law and are therefore also reviewable on a standard of reasonableness. 29 Further, as stated by the respondent, it is well established jurisprudence that the standard of review for questions pertaining to the interpretation of a decision maker’s enabling statute or statutes that are closely connected to its function is reasonableness (see Alliance Pipeline Ltd. v. Smith, 2011 SCC 7, [2011] 1 S.C.R. 160 (S.C.C.) at paragraph 26). Therefore, the question of whether the officer applied the correct legal test for assessing the applicant’s work experience is also reviewable on a standard of reasonableness. 30 In reviewing the officer’s decision on a standard of reasonableness, the Court should not intervene unless the officer came to a conclusion that is not transparent, justifiable and intelligible and within the range of acceptable outcomes based on the evidence before it (see Dunsmuir above, at paragraph 47; and Khosa v. Canada (Minister of Citizenship & Anabtawi v. Canada (MCI) John A. O’Keefe J. 311

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). 31 Conversely, the appropriate standard of review for issues of procedural fairness and natural justice is correctness (see Malik above, at paragraph 23; Khan above, at paragraph 11; and Khosa above, at paragraph 43). No deference is owed to officers on this issue (see Dunsmuir above, at paragraph 50).

Issue 2 Did the officer apply the correct legal test for assessing the applicant’s work experience? 32 The applicant submits that the officer erred by requiring that he perform “all of the essential duties and a substantial number of the main duties of a human resources officer” when employed with Prime Force. The requirement to perform all essential duties and a substantial number of the main duties of a NOC category is the mandated work experience requirement for federal skilled worker class applicants under subsection 80(3) of the Regulations. Conversely, the statutory provisions for Cana- dian experience class applicants, under paragraph 87.1(2)(a) of the Regu- lations, require applicants to have acquired “at least 12 months of full- time work experience, or the equivalent in part-time work experience, in one or more occupations that are listed in Skill Type 0 Management Oc- cupations or Skill Level A or B of the National Occupational Classifica- tion matrix”. The applicant submits that this latter statutory requirement is less rigid than the former and it must therefore be presumed that Par- liament intended a more lenient approach be taken towards the Canadian experience class compared to the federal skilled worker class. 33 Parliament’s intent in enacting the new skilled worker class thus lies at the centre of this analysis. According to the Canadian Gazette, Parlia- ment created the new class in recognition of challenges with the federal skilled worker class process. These challenges included: long wait times due to backlogs; limited responsiveness to labour market demand for skilled tradespersons due to the emphasis on formal education; and a failure to meet the labour market needs of communities outside major met- ropolitan areas due to highly concentrated settlement patterns. By enacting the new class, Parliament therefore sought to “[a]ttract more 312 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

temporary foreign workers and foreign students to Canada and retain them as permanent residents, thereby enhancing Canada’s ability to com- pete against countries like Australia that have similar programs”. As such, the new class would be selected on a pass/fail model rather than a points system as applied under the existing federal skilled worker class. Further, the stated rationale for the weekly work experience requirement of 37.5 hours was that it was consistent with other sections of the Regu- lations, specifically subsection 80(7) and paragraph 88(1)(a). 34 Admittedly, the NOC work experience requirements under subsection 80(3) (federal skilled worker class) and paragraph 87.1(2)(a) (Canadian experience class) are quite similar. Although the former provision specifically states to what extent the duties listed in the NOC classification must have been performed, the latter provision also requires applicants to have the work experience associated with a NOC listed occupation. Nothing emerges in either the legislation or the Canada Gazette to suggest that Parliament intended the work experience requirements to differ between these two classes. 35 Further, as highlighted by the respondent, paragraph 15(2)(b) of the Interpretation Act provides that an interpretive provision shall apply to all other provisions relating to the same subject matter unless a contrary intention appears. As mentioned above, the two contentious provisions are both contained under Division 1 of Part 6 of the Regulations and no contrary intention appears in the legislation. In addition, the rationale for the hourly work experience requirement under the Canadian experience class was that it was consistent with other sections of the Regulations, specifically provisions associated with other categories of the economic classes. 36 For these reasons, I do not find that the officer erred by incorporating the language of subsection 80(3) into the analysis under paragraph 87.1(2)(a) of the Regulations. The officer therefore applied the correct legal test for assessing the applicant’s work experience.

Issue 3 Did the officer err in assessing the applicant’s work experience? 37 Turning to the officer’s actual assessment of the applicant’s work experience, the applicant submits that the officer erred by not appreciating that he did meet all the duties set out in the main statement for the occupation and a substantial number of the other main duties. Anabtawi v. Canada (MCI) John A. O’Keefe J. 313

38 The NOC 1223 requirements specify the following: Main Statement: Personnel and recruitment officers identify and ad- vertise job vacancies, recruit candidates, and assist in the selection and reassignment of employees. They are employed throughout the private and public sectors. Main duties: Personnel and recruitment officers perform some or all of the following duties: Identify current and prospective staffing requirements, prepare and post notices and advertisements, and collect and screen applications; Advise job applicants on employment requirements and on terms and conditions of employment; Review candidate inventories and contact potential applicants to arrange interviews and arrange transfers, redeployment and placement of personnel; Recruit graduates of colleges, universities and other educational institutions; Co-ordinate and participate in selection and examination boards to evaluate candidates; Notify applicants of results of selection process and prepare job offers; Advise managers and employees on staffing policies and procedures; Organize and administer staff consultation and grievance procedures; Negotiate settlements of appeals and disputes and co-ordinate termi- nation of employment process; Determine the eligibility to entitlements, arrange staff training and provide information or services such as employee assistance, coun- selling and recognition programs; and May supervise personnel clerks performing filing and record keeping duties. 39 The following duties were listed in the applicant’s employment letter: Plan, develop and implement recruitment strategies; Ensure that the business is adhering to best practice and complying with employment legislation; Work closely with the operational business team, providing guidance on how to approach different employment issues which may arise; Manage training and development strategy; Provide steps for disciplinary actions; and Maintain and update the human resources database. 314 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

40 The applicant’s duties listed above do appear similar to those mandated under NOC 1223. However, in the decision, the officer noted that he was not satisfied that the applicant performed the required duties. This finding was largely based on the concerns raised by the officer’s verification with the applicant’s former employer. The GCMS notes for this conversation indicate that Mr. Zighmi stated that the applicant was a customer service representative and his duties included answering the phone, taking applications from job-seekers and opening files. Further, as the company is small, all employees had to be ready to do any type of work. 41 In response to the officer’s email regarding the discrepancy between the applicant’s duties as described by Mr. Zighmi and those listed in the applicant’s submissions, the applicant explained that his duties included: Plan, develop and implement recruitment strategies by posting of ads and job openings in local newspapers and on the internet; Screening of job applicants to identify the most appropriate candidate; Advising the company on implications of the increased minimum wage on business; Review and update the candidate inventory; Reassign employees based on available work; and Advise job applicants on employment requirements and compliance with Canadian workplace health and safety regulations. 42 As noted by the respondent, no explanation was provided to explain the discrepancy between the verification call and the written submissions. Although the applicant offered to file an affidavit from both himself and Mr. Zighmi, none was filed. 43 Admittedly, the duties listed in the applicant’s written submissions are similar to those listed under NOC 1223. However, deference is warranted to officers in this decision making process and their decisions should only be overturned where they are not within the range of acceptable outcomes based on the evidence before them (see Dunsmuir above, at paragraph 47). In this case, there was sufficient evidence before the officer to support his questioning of the applicant’s actual duties while employed at Prime Force. The applicant’s email response to the officer’s concerns did not provide new information to alleviate those concerns. Further, as stated by the respondent, Mr. Zighmi’s letter that was dated after the application was denied cannot be considered by this Court as it Anabtawi v. Canada (MCI) John A. O’Keefe J. 315

was not before the officer. As such, I find that the officer came to a reasonable decision based on the evidence before him.

Issue 4 Did the officer deny the applicant procedural fairness? 44 Finally, the applicant submits that the officer erred by not explaining why the evidence that he filed did not satisfy the officer’s concerns. Fur- ther, if the officer disbelieved the applicant’s statement, thereby questioning his credibility, he should have provided the applicant with a proper opportunity to respond. 45 Although limited jurisprudence has developed on the Canadian experience class, there is extensive jurisprudence available on the federal skilled worker class. Both of these classes fall under the same skilled workers division of the permanent residence economic classes of the Regulations. The nature of the regulatory scheme, the role of the decision of the officer in the overall scheme and the choice of procedure are also similar. As such, applicants under the two classes are entitled to similar limited procedural safeguards (see Malik above, at paragraph 26). 46 In this case, the officer referred in his decision to the concerns raised in his March 29, 2011 email, namely, the inconsistencies between the duties listed in the applicant’s employment letter and those stated by his former employer during the verification call. The applicant was granted 45 days to respond to these concerns with “any information or documentation”. The sole response the applicant provided was an email in which he largely reiterated the duties included in his former submission. Aside from a clarification on the number of employees that the company had, no explanation was provided for the discrepancies noted by the officer. 47 Bearing in mind the limited procedural safeguards that permanent residence applicants are entitled to under the Canadian experience class, I do not find that the officer erred by not providing further explanations for his decision. As the applicant’s email did not differ significantly from the information contained in his employment letter, the officer’s concerns stated in his March 29, 2011 email clearly remained unsatisfied. As such, I find that the decision adequately shows why the officer made his decision and permits this Court to determine whether the conclusion is within the range of acceptable outcomes (see N.L.N.U. v. Newfoundland & Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708 (S.C.C.) at paragraph 16). 316 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

48 The applicant also submits that he was entitled to a proper opportunity, by way of an interview, to disabuse the officer of his credibility concerns. However, as stated by the respondent, visa officers are under no obligation to alert applicants of concerns where they pertain to matters that arose directly from the applicant’s own evidence and from statutory requirements. As stated by Mr. Justice Yves de Montigny in Liu v. Canada (Minister of Citizenship & Immigration), 2006 FC 1025, [2006] F.C.J. No. 1289 (F.C.) (at paragraph 16): [...] An applicant’s failure to provide adequate, sufficient or credible proof with respect to his visa application does not trigger a duty to inform the applicant in order for him to submit further proof to address the finding of the officer with respect to the inadequacy, defi- ciency or lack of credibility. [...] 49 In summary, I find the applicant has failed to show any reviewable error. The officer applied the correct legal test in assessing the applicant’s work experience and was under no obligation to explain his findings in greater detail or to grant the applicant an interview. As such, I would dismiss this judicial review. The applicant requested an order for costs. I am not prepared to make an order for costs to the applicant as the applicant did not succeed in the application and special reasons do not exist to justify an award of costs. 50 Neither party wished to submit a proposed serious question of general importance for my consideration for certification.

Judgment THIS COURT’S JUDGMENT is that the application for judicial review is dismissed. Application dismissed.

Annex Relevant Statutory Provisions Interpretation Act, RSC, 1985, c I-21 15. (1) Definitions or rules of interpretation in an enactment apply to all the provisions of the enactment, including the provisions that contain those definitions or rules of interpretation. Anabtawi v. Canada (MCI) John A. O’Keefe J. 317

(2) Where an enactment contains an interpretation section or provision, it shall be read and construed (a) as being applicable only if a contrary intention does not appear; and (b) as being applicable to all other enactments relating to the same subjectmatter unless a contrary intention appears. Immigration and Refugee Protection Act, SC 2001, c 27 9 12.(2) A foreign national may be selected as a member of the economic class on the basis of their ability to become economically established in Canada. 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 80. (3) For the purposes of subsection (1), a skilled worker is considered to have experience in an occupation, regardless of whether they meet the employment requirements of the occupation as set out in the occupational descriptions of the National Occupational Classi- fication, if they performed (a) the actions described in the lead statement for the occupation as set out in the occupational descriptions of the Na- tional Occupational Classification; and (b) at least a substantial number of the main duties of the occupation as set out in the occupational descriptions of the Na- tional Occupational Classification, including all the essential duties. 87.1 (1) For the purposes of subsection 12(2) of the Act, the Canadian experience class is prescribed as a class of persons who may become permanent residents on the basis of their experience in Can- ada and who intend to reside in a province other than the Province of Quebec. (2) A foreign national is a member of the Canadian experience class if (a) they (i) have acquired in Canada within the 24 months before the day on which their application for permanent residence is made at least 12 months of full- 318 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

time work experience, or the equivalent in part-time work experience, in one or more occupations that are listed in Skill Type 0 Management Occupations or Skill Level A or B of the National Occupational Classification matrix, and have acquired that work experience after having obtained (A) a diploma, degree or trade or apprenticeship credential issued on the completion of a program of full-time study or training of at least two years’ duration at a public, provincially recognized post-secondary educational or training institution in Canada, (B) a diploma or trade or apprenticeship credential issued on the completion of a program of full-time study or training of at least two years’ duration at a private, Quebec post-secondary institution that operates under the same rules and regulations as public Quebec post-secondary institutions and that receives at least 50 per cent of its financing for its overall operations from government grants, subsidies or other assistance, (C) a degree from a private, provincially recognized post-secondary educational institution in Canada issued on the completion of a program of full-time study of at least two years’ duration, or (D) a graduate degree from a provincially recognized post-secondary educational institution in Canada issued on the completion of a program of full-time study of at least one year’s duration and within two years after obtaining a degree or diploma from an institution referred to in clause (A) or (C), or (ii) have acquired in Canada within the 36 months before the day on which their application for permanent residence is made at least 24 months of full- time work experience, or the equivalent in part-time work experience, in one or more occupations that are Anabtawi v. Canada (MCI) John A. O’Keefe J. 319

listed in Skill Type 0 Management Occupations or Skill Level A or B of the National Occupational Classification matrix; and (b) they have had their proficiency in the English or French language assessed by an organization or institution designated under subsection (4) and have obtained proficiencies for their abilities to speak, listen, read and write that corre- spond to benchmarks, as referred to in Canadian Language Benchmarks 2000 for the English language and Niveaux de comp´etence linguistique canadiens 2006 for the French language, of (i) in the case of a foreign national who has acquired work experience in one or more occupations that are listed in Skill Type 0 Management Occupations or Skill Level A of the National Occupational Classifi- cation matrix, (A) 7 or higher for each of those abilities, or (B) 6 for any one of those abilities, 7 or higher for any other two of those abilities and 8 or higher for the remaining ability, and (ii) in the case of a foreign national who has acquired work experience in one or more occupations that are listed in Skill Level B of the National Occupational Classification matrix, (A) 5 or higher for each of those abilities, or (B) 4 for any one of those abilities, 5 or higher for any other two of those abilities and 6 or higher for the remaining ability. (3) For the purposes of subsection (2), (a) full-time work is equivalent to at least 37.5 hours of work per week; (b) any period of self-employment or unauthorized work shall not be included in calculating a period of work experience; (c) the foreign national must have had temporary resident status during their period of work experience and any period of fulltime study or training; 320 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

(d) the foreign national must have been physically present in Canada for at least two years of their full-time study or training; (e) any period during which the foreign national was engaged in a full-time program of study or training in English or French as a second language — and any period of full-time study or training in respect of which study or training in English or French as a second language amounted to most of the full-time study or training — shall not be included in calculating the period of fulltime study or training; (f) any period of study or training during which the foreign national was a recipient of a Government of Canada scholar- ship or bursary, or participated in an exchange program sponsored by the Government of Canada, a purpose or con- dition of which was that the foreign national return to their country of origin or nationality on completion of their stud- ies or training shall not be included in calculating the period of full-time study or training; and (g) in the case of a foreign national whose work experience is referred to in both subparagraphs (2)(b)(i) and (ii), the foreign national must obtain a proficiency in the English or French language that corresponds to the benchmarks required for the skill type, as set out in subparagraph (2)(b)(i) or (ii), in which the foreign national has acquired most of their work experience. (4) The Minister may designate organizations or institutions to assess language proficiency for the purposes of this section and shall, for the purpose of correlating the results of such an assessment by a particular designated organization or institution with the benchmarks referred to in subsection (2), establish the minimum test result required to be awarded for each ability and each level of proficiency in the course of an assessment of language proficiency by that organization or institution in order to meet those benchmarks. (5) The results of an assessment of the language proficiency of a foreign national by a designated organization or institution and the correlation of those results with the benchmarks in accordance with subsection (4) are conclusive evidence of the foreign na- Anabtawi v. Canada (MCI) John A. O’Keefe J. 321

tional’s proficiency in an official language of Canada for the purposes of this section. 322 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

[Indexed as: Dhalla v. Canada (Minister of Citizenship and Immigration)] Arif Zaherali Hassana Ali Dhalla, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-8005-11 2012 FC 1144 Russel W. Zinn J. Heard: September 24, 2012 Judgment: September 28, 2012 Immigration and citizenship –––– Refugee protection — Practice and procedure in refugee claims — Abandonment proceedings –––– Immigration and Refugee Board declared that refugee claimant abandoned his claim after he failed to appear for refugee hearing and show cause hearing — Claimant brought application seeking judicial review of board’s decision — Issue was whether O or A acted in incompetent or fraudulent manner causing claim to be declared abandoned in breach of procedural fairness and natural justice — Ap- plication dismissed — A was never retained by claimant and never acted for him, and no evidence existed that O did anything other than assist claimant in making initial claim — It was not believable that claimant had two medical appointments on dates of two hearings — It was not believable that claimant would believe that he could obtain adjournment in light of express warnings from board that his failure to appear could result in declaration of abandonment — Claimant did not pursue his claim carefully, since he did not attempt to reschedule alleged medical appointments, did not read board’s instructions, and did not question O after receiving abandonment notice. Cases considered by Russel W. Zinn J.: Jane Doe v. Canada (Minister of Citizenship & Immigration) (2010), 366 F.T.R. 70 (Eng.), 2010 FC 284, 2010 CF 284, 2010 CarswellNat 2283, 2010 Car- swellNat 1220 (F.C.) — considered Statutes considered: Privacy Act, R.S.C. 1985, c. P-21 Generally — referred to

APPLICATION by refugee claimant seeking judicial review of decision declaring that he abandoned his claim. Dhalla v. Canada (MCI) Russel W. Zinn J. 323

Joel Sandaluk, for Applicant Monmi Goswami, for Respondent

Russel W. Zinn J.:

1 The applicant is a citizen of Tanzania. He is educated and English- speaking, and yet, if he is believed, he was taken in by an unscrupulous consultant and negligently represented by a lawyer whom he did not retain. He takes no responsibility for his current predicament but blames the consultant and the lawyer. 2 This much is without doubt — the applicant’s refugee claim was declared by the Refugee Protection Division of the Immigration and Refu- gee Board to have been abandoned and the applicant is seeking to have that decision set aside. Most everything else in this file raises doubt because the evidence is contradictory, confusing, and suspect. That evidence and my assessment of it is set out in the following section.

Background The Applicant and the Consultant 3 The applicant filed an affidavit in this application which, in addition to the exhibits attached and the certified tribunal record (CTR), reveals the following history. 4 The applicant says that “when I first made my refugee claim, I retained a counsel, Ademola Oladapo (“Oladapo”), to represent me” and was told that he was authorized to do so and paid him “about $3,000 or $4,000” for his services, but has no receipts. 5 The form entitled “CLAIM FOR REFUGEE PROTECTION IN CANADA” in the CTR contains a Third Party Declaration which reads as follows: Did someone assist you in filing out this form? If yes, this person needs to sign the following declaration. I (print full name clearly) Ademola Oladapo, do solemnly declare that I have assisted in the accurate completion of this form to the person concerned. I have been informed by the person, and I do believe, that he/she completely understands the nature and effect of these forms, and I make this solemn declaration conscientiously be- lieving it to be true and knowing that it is of the same force and effect as if made under oath. 324 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

Mr. Oladapo checks that he is a “Consultant” and signed the declaration on September 13, 2009. 6 The applicant, on October 14, 2009, signs and declares the information in the form to be true. On October 15, 2009, the Board sent the applicant a form letter acknowledging receipt of the refugee claim and informs him that the Board must receive his completed Personal Infor- mation Form (PIF) within 28 days or he will have to appear on Novem- ber 25, 2009, for an abandonment hearing. The letter also sets out his entitlement to legal representation as follows: • at your expense or you may be eligible to receive assistance from Legal Aid. For information about Legal Aid, read the booklet called The Refugee Protection Claim Process — An Overview; • if you choose to hire counsel, you should do so immediately, so that your counsel can send your PIF to the IRB on time and prepare for your hearing; • you should hire a counsel who is able to send your PIF on time to the IRB or to proceed on a scheduled hearing date, if not you will have to hire another counsel who is able to do so; • if your counsel charges a fee, your counsel must be a member in good standing of either a bar of a province, the Chambre des notaires du Qu´ebec or the Canadian Society of Immigra- tion Consultants in order to be able to represent you before the IRB; • if your counsel charges a fee, your counsel must provide the RPD with their membership identification number and the name of the organization of which they are a member; • when you hire counsel after a date has already been set for your hearing, you are responsible for making sure that your counsel is available and ready to proceed on the scheduled date; • you should make sure that your counsel is available on the scheduled date. The RPD may not change the date or time of your hearing because your counsel cannot attend, therefore it may be necessary for you to hire new counsel who is available on the scheduled date; • if you hire counsel or change counsel, you must immediately advise the RPD and CIC, in writing, of the name, address, telephone number, fax number and email address, if any, of your counsel, and if your counsel charges a fee, their mem- Dhalla v. Canada (MCI) Russel W. Zinn J. 325

bership identification number and the name of the organization they belong to. [emphasis added] 7 The PIF was filed in time and the applicant signed Declaration A (as he did not require the assistance of a translator) declaring the following: I declare that the information in this form and all attached documents is complete, true and correct. I declare that I am able to read English and that I fully understand the entire content of this form and all attached documents. My declaration has the same force and effect as if made under oath. 8 The PIF contains a section entitled “Your Counsel” and begins by asking the question “Do you have counsel?” The “No” box was marked with an X and the remainder of the section which provides address and other detailed information to be provided when an applicant has counsel was marked “N/A.” Notwithstanding having sworn to the completeness and accuracy of the PIF, in his affidavit, the applicant states: “I have just now noticed that under the “counsel” section, this was blank.” 9 The CTR shows that a form entitled “NOTICE TO APPEAR FOR A SCHEDULING CONFERENCE” dated March 2, 2011, was mailed to the applicant (and to no one else) informing him of a scheduling conference on March 21, 2011. That form contains the following at its end: “Note: If you have retained counsel, please appear with a letter from counsel confirming that he/she is retained and ready to proceed and also providing at least 6 available dates for the hearing of your refugee claim(s) [emphasis added].” 10 The applicant attended alone at the scheduling conference, presented no letter from his alleged counsel, and the refugee hearing was scheduled, with his knowledge, to be held on June 23, 2011. The “ASSIGN- MENT COURT HEARING INFO SHEET” filed at the scheduling conference by the Presiding Member reflects that no counsel was present and that the Presiding Member explained to the applicant the Convention refugee definition and his right to counsel. There is nothing written on the form under the heading: “Comments related to any of the above: (what efforts have been made to retain csl, what is the likelihood of counsel being retained etc.)” nor does the applicant in his affidavit attest that he informed the Board that he had counsel. 11 At the scheduling conference, the applicant was handed a form entitled “PEREMPTORY NOTICE TO APPEAR” stating that he has to ap- 326 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

pear on June 23, 2011, for the refugee hearing. That form also contains the following statement: You must be present and ready to proceed by the scheduled start time. If you or your counsel fail to appear as required, the RPD may, after giving you a reasonable opportunity to be heard, determine your claim to be abandoned [emphasis added]. 12 No one appeared on June 23, 2011. The applicant’s explanation for his failure to appear is that he had a scheduled medical appointment that day. Following [the scheduling conference], I accidentally scheduled a medical appointment for June 23, 2011. When I received a notice to appear for a hearing of my claim of June 23, 2011, I spoke to Oladapo about what to do. He advised me that it was not a problem to reschedule the hearing. I gave him a medical note for the appointment, and he assured me and I believed that he would attend the hearing to postpone it on my behalf. I did not keep a copy of the note. I wish to emphasize that I would certainly have attended if I had known that a medical appointment was not a valid reason for rescheduling the hearing [emphasis added]. 13 The emphasized portion of the applicant’s sworn statement is contradicted by the objective evidence before the Court. He swears that he made the medical appointment after the scheduling conference and only realized the conflict when he received the Notice to Appear; however, that form shows that he was personally served with it at the Scheduling Conference. Therefore, contrary to his affidavit, he knew the date of the hearing before he made the alleged medical appointment. 14 As a result of the applicant’s failure to appear, the Board scheduled a show cause hearing and on August 23, 2011, mailed a notice that it would be held on October 5, 2011. The applicant admits that he received that notice but he again failed to attend. His reason was that he again had a medical appointment: Unfortunately, I also had a medical appointment scheduled for Octo- ber 5, 2011. When I received the notice to appear for that day, I spoke to Oladapo and gave him a medical note for that appointment. He again assured me and I believed that he would attend on my behalf, and that it would not be a problem to postpone the hearing. I should note that, at that point, I was unaware that Olapado had not attended the June 23 hearing. Had I known that, I would have imme- Dhalla v. Canada (MCI) Russel W. Zinn J. 327

diately retained new counsel, and would have certainly have attended the October 5 hearing to explain all this. 15 This explanation is not credible. It is not believable that the applicant would think that his medical appointment would result in the postpone- ment of the October hearing given that the hearing in June had not been postponed for exactly that reason. At a minimum, it ought to have raised a serious question in the applicant’s mind as to what steps his consultant had taken to get the hearing postponed or explain his medical appointments. If the applicant is to be believed, he simply took what Mr. Oladapo said at face value and had none of the doubts that a reasonable or careful person would, given the history to date. 16 No one appeared at the show cause hearing on October 5, 2011, and the Board declared that the claim was abandoned. A Notice of Abandon- ment Decision form dated October 13, 2011, was sent to the applicant and written reasons were subsequently provided on January 4, 2012, when this application commenced. 17 The applicant attests that when he received notice that his claim had been abandoned, he was “shocked.” Again, he turned to Mr. Oladapo, who he says told him he would file an “appeal to the Federal Court, which apparently he did,” referring to the present application. The Appli- cation for Leave and for Judicial Review states on its face that the address for service on the applicant is “Arif Zaherali Hassan Dhalla, 2413 Islington Avenue, Suite 604, Etobicoke, Ontario, M3W 3X6. Telephone Number (416) 802-1463 and Fax Number (416) 746-4080.” The Court notes that this is the address Mr. Oladapo provided as his address in his declaration in the PIF. It is not the address or phone number of the applicant. 18 It was at this point that the applicant retained the law firm that now represents him. He says that in his presence, his counsel called Mr. Oladapo and asked what had happened at the hearings. The applicant attests to the following: Oladapo stated that he had sent my medical notes by fax to the RPD. He agreed to meet me on December 6, 2011 at his apartment (where I always met him previously) to give me a copy of my file, including the correspondence with the RPD. He asked me to call to confirm. On December 6 and 7, 2011, I called him at the same number that [my counsel] had used, but he did not answer, and his voicemail was full. 328 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

19 As a result, his counsel filed a request to the Board under the provisions of the Privacy Act, and on December 1, 2011, was provided with copies of all the records of the applicant in the Board’s files (the ATIP disclosure). Rather than resolving questions, the ATIP disclosure created more. 20 The first issue raised by the ATIP disclosure that is noted by the applicant surrounds two medical letters. 21 The first medical letter that is contained in the Board’s file is a letter from a dentist marked by the Board as having been received on June 23, 2011, at around 1:40 pm, after the scheduled refugee hearing had concluded because no one attended. The applicant says that it is a forgery. This letter is not the letter I gave to Oladapo, I have never seen it until now, and I do not recognize the name of the purported author or dental centre. This is clearly a fake produced by someone else. 22 The applicant in oral submissions submits that the language of the letter is so poor that it is obvious it was not written by a dentist. It is dated June 22, 2011, is from Dr. Neelum Jamal of the Midtown Dental Centre, addressed to whom it may concern, and is set out verbatim, below: 22nd day of June, 2011. Dear Sir/Madam TO WHOM IT MAY CONCERN The above named patient by name; Arif Zaherali H Dhalla is currently having dental pains and will be undergoing treatment at our Dental Centre and would be requiring some days off work. This request arises from the fact that he needs to perform a root Ca- nal operation regarding his teeth. His tooth requires Endodontic ther- apy due to Cavities infection deep inside his tooth. Thanking you in Advance regarding your help and cooperation towards the above mentioned Patient. Your’s Faithfully, Dr. Neelum Jamal. 23 The second medical report that is contained in the Board’s file is a letter from a doctor received by the Board on October 6, 2011, at around 9 a.m., which the applicant says is also a forgery. He says: I have never seen this fax cover or medical note before. This is fax cover is not from me, and is not in my handwriting. The medical note — which I can see is similar to the fake medical note of June Dhalla v. Canada (MCI) Russel W. Zinn J. 329

23 — is not about me, and the purported author is not my doctor. This is also clearly a fake. I am seeing the note for the first time, and I am shocked. 24 This letter is dated October 5, 2011, is from Dr. Hank C. Lee of the Regent Medical Clinic, is addressed to whom it may concern, and is set out verbatim, below: 5th day of October, 2011. Dear Sir/Madam TO WHOM IT MAY CONCERN The above named patient by name; Arif Zaherali H Dhalla is currently having a Migraine which is caused by abnormal brain activity, which is triggered by stress, certain foods, environmental Factors and would be requiring some days off work. His Migraine attack may have been triggered by Physical or emotional stress, smoking or exposure to smoke, Allergic reactions, loud noises or certain odors or perfumes or missed meals. I am therefore recommending he has a CT scan or take an EEG testing to rule out seizures. Thanking you in Advance regarding your help and cooperation towards the above named Patient. Your’s Faithfully, Dr. Hank C. Lee. 25 The Court shares the applicant’s view that there are remarkable simi- larities in these letters. The formatting is identical, the first line is identical including its odd formatting and underlining of the applicant’s name, the final paragraph is identical, and the grammatically incorrect valedic- tion is identical. Both are extremely suspect and, in my view, fraudulent.

The Applicant and the Lawyer 26 The second issue raised by the ATIP disclosure that the applicant notes is that the Board’s files indicate that at some point the applicant was represented by a lawyer, Adetayo G. Akinyemi. The applicant attests in his affidavit: “I have no idea who this person is, and have never met him or her.” He further states that he has filed a compliant with the Law Society of Upper Canada regarding Mr. Akinyemi and attaches a copy as an exhibit to his affidavit. The Minister notes, quite correctly, that there is nothing in the affidavit or elsewhere to indicate that this complaint was filed and is being considered by the Law Society. 330 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

27 This is where matters stood until a few minutes before the scheduled hearing of this application when a letter from Mr. Akinyemi dated Sep- tember 20, 2012, addressed to myself as the hearing judge and to the applicant’s counsel was received. The Court was informed at the hearing that counsel for the respondent had been communicating with Mr. Akinyemi and this apparently lead to him writing the following: I am an Immigration Lawyer in Toronto and I have represented and will continue to represent clients at the Federal court. My written representation to this Hon. Court is brought forward to ensure that my name is not tarnished, as I do not intend to speak on the merits of the case of this Applicant. I do NOT know and I have never met Mr. Ali Dhalla and this fact is quite evident from the contents of Mr. Dhalla’s affidavit dated the 7th day of December 2011, particularly at paragraph 16 (a). (Copy of affidavit enclosed) Furthermore, I do not know and have never had a staff or representative called Ademola Oladapo In fact, in his complaint to the Law Society, Mr. Dhalla believes I am female which is incorrect. (Copy of complaint enclosed) Furthermore, in his PIF, the claimant did not indicate he had any counsel. (Copy of PIF) enclosed. The first indication I ever got of the existence of Mr. Dhalla was when the Refugee Board sent me a disclosure package for this client, indicating I was his counsel, which turned out to be an obvious error. Upon receipt of this message, I was worried I may have misplaced or lost sight of one of my client’s matters and I immediately instructed my assistant, Ms. Anyudy Urena, to write to the Refugee Board asking for copies of this client’s PIF, so that I could follow up, as I did not have Mr. Dhalla’s name on my list of clients. (Copy of my assistant’s letter to the Board is herewith enclosed) Despite my letter to the Board, I never received a copy of the client’s PIF and when my assistant called the Board to enquire whether my name was on the client’s PIF, she was advised by the board that I was not listed on the client’s PIF as counsel. I do not know how or what document the refugee board relied on to contact me and upon my instruction, my assistant notified the board that I was not counsel for this individual, hoping that office would rectify any error with dispatch. It is rather disturbing that Mr. Ali Dhalla “scheduled” medical appointments on both days he was expected to attend his hearing, par- Dhalla v. Canada (MCI) Russel W. Zinn J. 331

ticularly after his previous experience of the 23rd day of June 2011 and the resultant letter of 23rd day of August 2011 that he received from the IRB. This is however an issue that will be dealt with by the Federal Court in making a decision on his Application for leave. But for the error from the scheduling unit of the IRB, there is not a single document relating to Mr. Dhalla’s case that was prepared or sent by me on his behalf and I urge this Hon. Court to vindicate me accordingly. All of which is respectfully submitted. Dated this 20th day of September 2012 Yours truly, Adetayo G. Akinyemi Barrister & Solicitor 28 It was suggested by the applicant at the hearing that Mr. Akinyemi’s letter contained false statements because he claimed that his first knowledge of the applicant was when he received the Board’s disclosure package but that this package was received some months after he wrote to the Board seeking disclosure of the applicant’s PIF. On closer review of the file, the Court is satisfied that the submission is not accurate; it is pre- mised on an incorrect view of the evidence. There were two disclosure packages sent to Mr. Akinyemi and the first was sent to him only a few days before his letter to the Board. Nonetheless, whether he became involved in the applicant’s claim, how be became involved, and what his involvement, if any, remain mysterious and raise further questions. 29 The CTR and ATIP disclosure contain the following communications involving the Board and Mr. Akinyemi. 30 The first reference to Mr. Akinyemi is in a internal Board document, Statement of Service, in the ATIP disclosure which states that on May 2, 2011, the Board served the standard disclosure package for Tanzania dated April 27, 2011, on “counsel” being Mr. Akinyemi. There is nothing in either file to indicate that the Board had been informed by anyone that Mr. Akinyemi was counsel for the applicant. I strongly suspect that this was a clerical error made by a Board official. 31 This disclosure sent to Mr. Akinyemi caused him, as he writes in his letter, to be worried that he may have lost sight of or misplaced a client file. Accordingly, at his instruction, his secretary wrote to the Board. That one page letter/fax is dated May 6, 2011, references the applicant’s Board file number, and reads: “Kindly, forward a copy of my client’s personal information form to my address noted above.” 332 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

32 Mr. Akinyemi says that he received no PIF in response and upon following up, his assistant was told, correctly, that he did not appear as the applicant’s counsel on the PIF. However, the copy of his letter/fax in the ATIP disclosure from the Board has a handwritten notation on it stamped May 17, 2011, that appears to read: “Copy of PIF [?BC NCR?] sent to cnsl. Jessie.” The bracketed letters with question mark bookends are my best guess at the handwriting. The notation may or may not indicate that Jessie sent the PIF to Mr. Akinyemi — only Jessie knows. 33 Mr. Akinyemi goes on to say that he did not know what document the Board relied upon to send him the document package but instructed his assistant to contact the Board and notify it that he was not counsel for the applicant. I have no reason to question Mr. Akinyemi, but note that there is nothing in the material before the Court to objectively confirm any such communication from his office. Nevertheless, there is evidence that thereafter, and from time to time, but not consistently, the Board took the view that the applicant had no counsel. 34 The Court notes, for example, that on the Board’s Hearing Informa- tion sheet prepared for the Member for the June 23, 2011, hearing it is indicated that the applicant has “No Counsel.” Similarly the RPD Hear- ing Disposition Record for that hearing also indicates that the applicant has no counsel. Furthermore, in what appear to be notes of the Member made in preparation for the June 23, 2011, hearing there is a notation “No Counsel — nothing on file.” 35 However, there are other later documents in the CTR and ATIP disclosure that indicate that from the Board’s perspective Mr. Akinyemi was counsel for the applicant; specifically the following: • A Re-Scheduling Request Form for Postponed / Adjourned Cases bearing the date of June 24, 2011, lists Mr. Akinyemi as counsel and states his phone number and contains a notation under the heading Special Instruction that indicates that on June 27, 2011, a Board representative “spoke with counsel” and he agreed to the matter being scheduled for October 5, 2011, at 1 pm. • The Registrar of the Board on August 23, 2011, sent a Notice to Appear for the show cause hearing to be held on October 5, 2011, to both the applicant and Mr. Akinyemi as “claimant’s counsel.” • The Board’s form prepared for the Member for the show cause hearing on October 5, 2011, as well as the RPD Hearing Disposi- tion Record indicate Mr. Akinyemi as counsel of record. Dhalla v. Canada (MCI) Russel W. Zinn J. 333

• A Statement of Service form of the Board reflects that on Septem- ber 1, 2011, Mr. Akinyemi was served with the Standard Disclo- sure Package for Tanzania dated August 31, 2011. • The Distribution/Statement of Service form dated October 13, 2011, indicates that the Board served both the applicant and Mr. Akinyemi with the Board’s decision declaring the claim to have been abandoned.

Issue 36 The applicant raises one issue: whether his counsel, Mr. Oladapo and/or Mr. Akinyemi acted in an incompetent or fraudulent manner, causing his refugee claim to be declared abandoned in breach of procedural fairness and natural justice.

Analysis 37 Both the applicant and Mr. Akinyemi agree that he was never retained by the applicant and never acted for him. I am satisfied that the Board’s documents reflecting that he was counsel reflect a clerical error on the part of the Board. More problematic is the Board’s document that reflects that one of its employees had a discussion with Mr. Akinyemi concerning the scheduling of the show cause hearing. If any such conversation took place, I am prepared to accept, absent evidence to the contrary, that Mr. Akinyemi did not understand that the matter involved the applicant and not one of his clients. This is a matter the Board may wish to inquire into; however, whether or not the conversation took place as recorded, it had nothing to do with the applicant failing to appear at the show case hearing. The applicant was aware of the date of the hearing but he failed to attend. 38 The applicant submits that a failure of natural justice may result from the negligence or fraudulent conduct of a claimant’s counsel. In appropriate and exceptional cases, an individual can be separated from the consequences of the conduct of his own counsel. However, as is rightly pointed out by the applicant in his memorandum of argument, this Court has recently stated that “the negligence of counsel should not cause an Applicant, who has acted with care, to suffer [emphasis added]:” Jane Doe v. Canada (Minister of Citizenship & Immigration), 2010 FC 284 (F.C.) at para 28. 334 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

39 One thing of which I am certain is that the applicant has failed to demonstrate that he acted with care at any time prior to the declaration of abandonment. 40 The applicant’s story of Mr. Oladapo is quite simply not credible. There is no evidence that Mr. Oladapo was retained by the applicant to do anything other than assist him in making the initial refugee claim. I do not believe that he agreed to act as counsel at the hearing and that the applicant only noticed that his name was absent from the PIF when he received a copy of it as part of the ATIP disclosure. He attended the pre- scheduling conference alone and, despite being informed of his right to counsel, did nothing to advise the Board then or later that he already had counsel. If, as he says, he had counsel, then there is no explanation from him as to why he failed to mention this fact to the Board. 41 I further do not believe that he coincidentally and inadvertently had two medical appointments on the two dates of the refugee hearing and show cause hearing. I have already noted that contradiction in his affidavit evidence as to the timing of the first appointment and the scheduling of the hearing. I find it also significant that he has provided no explanation of the purpose or nature of the two alleged medical appointments, much less supporting documentation. He has not gone back to the doc- tors who allegedly saw him to get replacement notes, or provided any documentation to support his claim that he had these appointments. Criti- cally, there is no explanation offered as to why, if the applicant had provided Mr. Oladapo with genuine medical notes, he would fabricate notes and send them to the Board. I find it unbelievable that the applicant would believe that he could obtain an adjournment because of a conflicting medical appointment in light of the express warnings on the notices from the Board that if he failed to appear the claim might be declared abandoned. Even if I were to give him the benefit of the doubt the first time, it is beyond belief that he would think an adjournment would be forthcoming on the second occasion when it was not granted on the first. 42 I do not believe the applicant when he swears that he did not know that Mr. Oladapo had not appeared at the June 2011 hearing because he admits to having received a notice that says as much. I cannot believe that any reasonable person would continue to return to Mr. Oladapo time and time again, trusting him counter to all common sense and in the face of the instructions being provided to him by the Board. 43 Even if I believed the applicant’s story — which I do not — the only conclusion that can be drawn is that he has been anything but “careful” Dhalla v. Canada (MCI) Russel W. Zinn J. 335

in the pursuit of his claim. He did not attempt to reschedule his alleged medical appointments. He did not read the clear instructions from the Board on multiple occasions. He did not question Mr. Oladapo after receiving the abandonment notice, or take extra care at that point. Frankly, nothing suggests he did anything carefully in pursuing his refugee claim. 44 In short, I find that it is the applicant, and no one else, who is responsible for the abandonment declaration. He is the author of his own mis- fortune. The Board’s decision is reasonable and just. 45 Neither party is proposing that a question be certified. 46 I am directing the Court’s Registry to send copies of these Reasons for Judgment and Judgment to both Mr. Akinyemi and the Chair of the Board for their information and in the hope that each takes whatever cor- rective action is considered necessary to prevent any further incidence of the sort that occurred here.

Judgment THIS COURT’S JUDGMENT is that this application is dismissed and no question is certified. Application dismissed. 336 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

[Indexed as: Vuktilaj v. Canada (Minister of Citizenship and Immigration)] Nikolle Vuktilaj, Lize Vuktilaj, Laura Vuktilaj, Applicants and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-558-12 2012 FC 1198 D.G. Near J. Heard: October 2, 2012 Judgment: October 15, 2012 Immigration and citizenship –––– Exclusion and removal — Removal from Canada — Appeals and judicial review — Judicial review — Miscellane- ous –––– Applicants were family who fled Albania because of blood feud with another family — Applicants’ claim for refugee protection was refused by Refu- gee Protection Division of Immigration and Refugee Board on basis of credibility concerns and adequate state protection — They submitted Pre-Removal Risk Assessment applications — Immigration officer found that applicants would not be subject to risk of persecution, danger of torture, risk to life or risk of cruel and unusual treatment or punishment should they return to Albania — Appli- cants brought application seeking judicial review of decision — Application dismissed — Officer considered new evidence submitted by applicants to demonstrate that state protection would not be reasonably forthcoming to them in Albania but was not satisfied that there was clear and convincing evidence to rebut presumption of state protection on balance of probabilities — Officer’s conclusion was within range of possible, acceptable outcomes that were defensible in respect of facts and law and was thus reasonable. Cases considered by D.G. Near J.: Borges v. Canada (Minister of Citizenship & Immigration) (2005), 2005 CF 491, 2005 FC 491, 2005 CarswellNat 955, 2005 CarswellNat 3198, [2005] F.C.J. No. 621 (F.C.) — considered Cepeda-Gutierrez v. Canada (Minister of Citizenship & Immigration) (1998), 157 F.T.R. 35, 1998 CarswellNat 1981, [1998] A.C.F. No. 1425, [1998] F.C.J. No. 1425 (Fed. T.D.) — referred to Mendez v. Canada (Minister of Citizenship & Immigration) (2008), 2008 Car- swellNat 2780, 2008 CF 584, 2008 CarswellNat 1499, 2008 FC 584, [2008] F.C.J. No. 771 (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 Vuktilaj v. Canada (MCI) D.G. Near J. 337

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 Ponce v. Canada (Minister of Citizenship & Immigration) (2012), 2012 Car- swellNat 429, 2012 FC 181, 2012 CarswellNat 1047, 2012 CF 181, [2012] F.C.J. No. 189 (F.C.) — referred to Shkabari v. Canada (Minister of Citizenship & Immigration) (2012), 2012 Car- swellNat 384, 2012 FC 177, 2012 CF 177, 2012 CarswellNat 1242, [2012] F.C.J. No. 186 (F.C.) — considered Ward v. Canada (Minister of Employment & Immigration) (1993), (sub nom. Canada (Attorney General) v. Ward) 103 D.L.R. (4th) 1, (sub nom. Canada (Attorney General) v. Ward) 153 N.R. 321, 20 Imm. L.R. (2d) 85, 1993 Car- swellNat 90, 1993 CarswellNat 1382, [1997] I.N.L.R. 42, (sub nom. Canada (Attorney General) v. Ward) [1993] 2 S.C.R. 689, [1993] S.C.J. No. 74, EYB 1993-67292 (S.C.C.) — considered Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 96 — referred to s. 97 — referred to s. 113(a) — considered

APPLICATION by applicants for judicial review of decision of immigration officer who found that applicants would not be subject to risk of persecution, danger of torture, risk to life or risk of cruel and unusual treatment or punishment should they return to Albania.

D. Clifford Luyt, for Applicants Veronica Cham, for Respondent

D.G. Near J.:

1 The Applicants seek judicial review of the negative Pre-Removal Risk Assessment (PRRA) rendered on their applications by an Immigra- tion Officer (“the Officer”) on December 2, 2011. The Officer found that the Applicants would not be subject to a risk of persecution, danger of torture, risk to life or risk of cruel and unusual treatment or punishment should they return to Albania. 338 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

2 For the reasons that follow, the application for judicial review is dismissed.

I. Facts 3 The Applicants — Mr. Nikolle Vuktilaj (the Principal Applicant), his wife, and their daughter — are citizens of Albania. 4 They left Albania for the United States in 2000, where they submitted a claim for political asylum on the basis of their affiliations with the Democratic Party in Albania. Their claim was rejected by the American immigration authorities in 2004 because the political situation in Albania had changed. The Applicants subsequently exhausted the appeals at their disposal in the American system, and an official deportation order was issued against them in February 2008. 5 On February 18, 2008, the Applicants entered Canada illegally by truck at the Windsor, Ontario border crossing and submitted an application for refugee protection the following day on the basis of their family’s involvement in a blood feud with the Rexhaj family in Albania. 6 The Applicants describe that the origin of the blood feud was a property dispute dating back to 1992. The Rexhaj family asserted that the land under the Applicants’ home was theirs prior to communist rule in Albania, and began issuing threats against the Applicants. In 1997, the Applicants’ house was burned to the ground. It was rebuilt with the help of the newly reopened Catholic Church, but, as previously mentioned, the Applicants left Albania in 2000. 7 In February 2008, while preparing to return to Albania in accordance with their American deportation order, the Applicants learned that the Principal Applicant’s brother was killed by a truck while riding his bicy- cle. Three days later, a member of the Rexhaj family was killed. The Rexhaj family accused a member of the Applicants’ family of the murder, and declared a blood feud. 8 The Applicants’ claim for refugee protection under sections 96 and 97 of the Immigration and Refugee Protection Act, SC 2001, c 27 (IRPA) was refused by the Refugee Protection Division of the Immigration and Refugee Board (“the Board”) on January 28, 2011 on the bases of credibility concerns and adequate state protection. They submitted their PRRA applications on August 22, 2011. Vuktilaj v. Canada (MCI) D.G. Near J. 339

II. Decision under Review 9 The PRRA Officer found that the Applicants had submitted a number of items of new evidence, as described in subsection 113(a) of IRPA. The new evidence included a letter from the Principal Applicant’s sister- in-law (the wife of his deceased brother) that described the sexual assault that she suffered at the hands of three men whom the Officer accepted as being tied to the Rexhaj family. The other items of new evidence included attestations and news articles describing the continued existence of blood feuds in Albania, as well as evidence that the Principal Appli- cant’s wife is undergoing treatment for cancer in Canada. 10 The Officer accepted that the new evidence confirmed that there is an ongoing blood feud between the Rexhaj and Vuktilaj families, and that this dispute has resulted in “members of both families being murdered as well as in damage to property.” 11 Despite the presence of this risk, the Officer was not satisfied that the Applicants had provided clear and convincing evidence to rebut the presumption of state protection. First, the Applicants had not shown that they had made reasonable attempts to access state protection in Albania. Second, the Applicants had not demonstrated that the authorities would be unable or unwilling to provide them with protection. While acknowledging some mixed information in the news articles and reports, the Of- ficer found that the new evidence pointed to a number of efforts made by the Albanian government to address the issue of blood feuds. 12 The Officer noted that, “[b]arring a complete breakdown of state ap- paratus, there is a presumption that a state is able to provide protection to its citizens.” The Officer concluded that “state protection, while not perfect, is available for Albanian families who are involved in blood feuds and would, on a balance of probabilities, be available to the Applicants, were they to attempt to access it.”

III. Issues 13 The sole issue in this application is whether the Officer’s assessment of state protection was reasonable.

IV. Standard of Review 14 The Officer’s consideration of state protection involves questions of mixed fact and law and is thus reviewable on the standard of reasonableness (see Mendez v. Canada (Minister of Citizenship & Immigration), 2008 FC 584, [2008] F.C.J. No. 771 (F.C.) at paras 11-13; Ponce v. 340 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

Canada (Minister of Citizenship & Immigration), 2012 FC 181, [2012] F.C.J. No. 189 (F.C.) at para 25). 15 Reasonableness is concerned with “the existence of justification, transparency and intelligibility in the decision-making process” and 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). 16 I note that it is not the role of this Court to substitute its view of the facts for that of the Officer (see Cepeda-Gutierrez v. Canada (Minister of Citizenship & Immigration), [1998] F.C.J. No. 1425, 157 F.T.R. 35 (Fed. T.D.) at para 14).

V. Analysis 17 There cannot be said to be a failure of state protection where a state has not been given an opportunity to respond to a form of harm. As the Supreme Court of Canada has held, “only in situations in which state protection ‘might reasonably have been forthcoming’, will the claimant’s failure to approach the state for protection defeat his claim” (Ward v. Canada (Minister of Employment & Immigration), [1993] 2 S.C.R. 689 (S.C.C.) at para 49). 18 The primary question in contention between the parties to this case is whether state protection might reasonably have been forthcoming to the Applicants. Indeed, the Applicants contend that the documentary evidence clearly and convincingly shows that state protection would not be reasonably forthcoming to them. They submit that the Officer erred in pointing to their failure to approach the police and ignored the documentary evidence. 19 The Respondent underlines the proposition laid out in Borges v. Canada (Minister of Citizenship & Immigration), 2005 FC 491, [2005] F.C.J. No. 621 (F.C.) that “[a]ll the documentary evidence regarding the deficiencies of [a particular] justice system that the Applicant produced (and the Board allegedly ignored) are not relevant in the absence of any attempt to seek state protection or in the absence of a credible and plausi- ble explanation therefore” (see Borges, above, at para 10). 20 Taking the decision as a whole, I am satisfied that the Officer’s conclusions with respect to state protection are reasonable for three main reasons. Vuktilaj v. Canada (MCI) D.G. Near J. 341

21 First, the Officer had no satisfactory answer from the Applicants themselves as to why they failed to approach the Albanian authorities for protection. While they now contend in their submissions on judicial review that their answer was that “they didn’t expect [the state] to protect them, and this position was backed up by ample evidence,” there was little personalized evidence before the Officer to this effect. Specifically, the Applicants did not answer the question in their PRRA applications that asked them to describe what help they had sought from the state or, if they had not, to explain why they had not. 22 While I note that the Applicants have been absent from Albania since 2000, and that approaching the authorities for protection in Albania during this time would have been difficult, the Applicants did not ever raise this point. In addition, as the Officer points out, there is no evidence specific to their case that explains why no one in their family sought protection from the authorities, or went to the police. While the Applicants noted in their PRRA application submissions that others who were similarly situated had been killed and that this demonstrated an inability of the Albanian state to protect families involved in blood feuds, the Officer noted that there were “few specifics” concerning those deaths, and that it was “not clear if the individuals who were killed had attempted to access protection from the Albanian authorities.” 23 The Applicants bear the burden of rebutting the presumption of state protection and the absence of explanations in their applications for protection does not constitute the requisite clear and convincing evidence to rebut the presumption. 24 Second, the Applicants’ argument with respect to the recent decision of Justice John O’Keefe in Shkabari v. Canada (Minister of Citizenship & Immigration), 2012 FC 177, [2012] F.C.J. No. 186 (F.C.) is uncon- vincing. In Shkabari, the applicants’ attempts to seek help from a peace and reconciliation commission set up to resolve blood feuds in Albania was found to be an important consideration that was missing from the Board’s decision. The Applicants posit that this case is analogous to their own, and that the Officer’s failure to consider their repeated attempts to seek mediation of their dispute when evaluating state protection constitutes a reviewable error. 25 The Applicants’ argument on this point has three primary shortfalls: first, the Applicants do not appear to have relied on this evidence as proof of their attempts to seek state protection. Instead, they relied on it primarily to counter the credibility concerns of the Board. Indeed, the 342 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

Officer considered the affidavits from the Chairmen of the Committee of Nationwide Reconciliation and of the Elders’ Council of Vermosh Vil- lage to be convincing evidence of the existence of a blood feud, thus overcoming the decision of the Board with respect to the credibility of the risk faced by the Applicants. Second, these organizations do not appear to be agencies of the state. Third, and finally, there is evidence in the record that points to the fact that both the Vuktilaj and Rexhaj families refused to mediate their dispute. I thus find the Officer’s decision as to the Applicants’ failure to approach the authorities for protection reasonable. 26 Finally, the Applicants suggest that the Officer “ignored or chose to overlook the express statements in the evidence that most isolated families receive no support from the authorities and that police officers do not intervene before the isolated family suffers the murder of one of its members, apparently because the police themselves are afraid to become targets of the blood feud instigators” (Applicants’ Memorandum of Fact and Law at para 16). This ignoring of the evidence, they submit, led the Officer to an unreasonable decision that state protection would have been reasonably forthcoming to the Applicants. 27 I am not satisfied that the Officer ignored this evidence. The Officer weighed the newly submitted documentary evidence and, while recognizing that state protection is not perfect in Albania, found that there was insufficient evidence either to upset the finding of the Board or to rebut the presumption in favour of state protection. Where the Applicants argued that the police only become involved when there has been a murder, for example, they failed to provide evidence that the police had not, and would not, become involved in this particular case after two deaths. The Officer’s conclusion was reasonable.

VI. Conclusion 28 The Officer considered the new evidence submitted by the Applicants to demonstrate that state protection would not be reasonably forthcoming to them in Albania, but was not satisfied that there was clear and convincing evidence to rebut the presumption of state protection on a balance of probabilities. I find that the Officer’s conclusion is within the range of possible, acceptable outcomes that are defensible in respect of the facts and law and is thus reasonable. Vuktilaj v. Canada (MCI) D.G. Near J. 343

Judgment THIS COURT’S JUDGMENT is that this application for judicial review is dismissed. Application dismissed. 344 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

[Indexed as: Lennon v. Canada (Minister of Public Safety and Emergency Preparedness)] Andrew Allen Lennon Sr., Applicant and The Minister of Public Safety and Emergency Preparedness, Respondent Federal Court Docket: IMM-677-12 2012 FC 1122 D.G. Near J. Heard: September 19, 2012 Judgment: September 25, 2012 Immigration and citizenship –––– Exclusion and removal — Removal from Canada — Appeals and judicial review — Judicial review — Miscellane- ous –––– Immigration Division of Immigration and Refugee Board found that applicant was inadmissible on grounds of organized criminality — Deportation order was issued as result of finding — Applicant brought application for judicial review — Application dismissed — Board adopted broad and unrestricted approach to assessing whether applicant was member of criminal organization under paragraph 37(1)(a) of Immigration and Refugee Protection Act called for on several occasions by court, and came to reasonable conclusion based on assessment of evidence. Cases considered by D.G. Near J.: Amaya v. Canada (Minister of Public Safety & Emergency Preparedness) (2007), 2007 CarswellNat 3453, 2007 CF 549, 2007 CarswellNat 1384, 2007 FC 549, [2007] F.C.J. No. 743 (F.C.) — considered Castelly c. Canada (Ministre de la Citoyennet´e & de l’Immigration) (2008), (sub nom. Castelly v. Canada (Minister of Citizenship & Immigration)) 329 F.T.R. 311 (Eng.), 2008 CF 788, 2008 FC 788, 74 Imm. L.R. (3d) 209, (sub nom. Castelly v. Canada (Minister of Citizenship & Immigration)) [2009] 2 F.C.R. 327, 2008 CarswellNat 2009, 2008 CarswellNat 3508, [2008] F.C.J. No. 999, [2008] A.C.F. No. 999 (F.C.) — referred to M’Bosso c. Canada (Ministre de la Citoyennet´e & de l’Immigration) (2011), 2011 CarswellNat 1919, 2011 FC 302, (sub nom. M’Bosso v. Canada (Minister of Citizenship & Immigration)) 386 F.T.R. 48 (Eng.), 2011 Car- swellNat 602, 2011 CF 302, [2011] F.C.J. No. 345 (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, Lennon v. Canada D.G. Near J. 345

(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 Sittampalam v. Canada (Minister of Citizenship & Immigration) (2006), 56 Imm. L.R. (3d) 161, 2006 CarswellNat 5109, 2006 CarswellNat 3236, 2006 FCA 326, 272 D.L.R. (4th) 1, [2007] 3 F.C.R. 198, 2006 CAF 326, 354 N.R. 34, [2006] F.C.J. No. 1512 (F.C.A.) — considered Thanaratnam v. Canada (Minister of Citizenship & Immigration) (2004), 37 Imm. L.R. (3d) 96, 2004 CF 349, 2004 FC 349, 2004 CarswellNat 569, 2004 CarswellNat 2193, [2004] 3 F.C.R. 301, [2004] F.C.J. No. 395 (F.C.) — considered Statutes considered: Criminal Code, R.S.C. 1985, c. C-46 Generally — referred to Immigration and Refugee Protection Act, S.C. 2001, c. 27 Generally — referred to s. 37(1)(a) — considered s. 44(1) — referred to

APPLICATION for judicial review by applicant from Immigration Division of Immigration and Refugee Board finding that applicant was inadmissible on grounds of organized criminality.

John Rokakis, for Applicant Stephen Jarvis, for Respondent

D.G. Near J.:

1 The Applicant seeks judicial review of the December 29, 2011 decision of the Immigration Division of the Immigration and Refugee Board (“the Board”) by which the Board found the Applicant inadmissible on grounds of organized criminality under paragraph 37(1)(a) of the Immi- gration and Refugee Protection Act, SC 2001, c 27 (IRPA). A deportation order was issued as a result of this finding. 2 For the reasons that follow, the application for judicial review is dismissed. 346 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

I. Facts 3 The Applicant is a permanent resident who came to Canada in 1966, at the age of 6. He is a citizen of the United Kingdom. 4 On November 17, 2009, the Applicant pled guilty to two criminal offences: possession of the proceeds of crime; and possession for the purpose of trafficking, namely oxycodone. The Applicant was a courier for what the Minister of Public Safety and Emergency Preparedness (“the Minister”) identified as a six-person criminal organization, transporting drugs and currency between Ontario and British Columbia. The Appli- cant made between twelve and fourteen trips between the two provinces in 2007, some of which were for his own benefit. 5 The Applicant was sentenced to an 18-month conditional sentence for each offence, which he served concurrently. Five other individuals, including the Applicant’s nephew, were charged with various offences relating to trafficking controlled substances and money laundering. 6 Following the Applicant’s sentencing, the Canada Border Services Agency (CBSA) reported him as inadmissible under subsection 44(1) of IRPA. The CBSA report stated that the Applicant was part of a six-member drug ring based in Windsor, Ontario and cited paragraph 37(1)(a) of IRPA. The Applicant was referred for an Admissibility Hearing, which took place on October 4, 2011.

II. Decision under Review 7 The Board found that the Applicant was a permanent resident of Can- ada who is inadmissible for organized criminality. It determined on the basis of paragraph 37(1)(a) of IRPA that the evidentiary standard for its finding was “reasonable grounds to believe”, which has been defined in the jurisprudence as “a serious possibility based on credible evidence”. 8 The Board relied on the evidence submitted by the Minister, who bore the evidentiary burden in this case, the testimony of the Applicant, and the testimony of Corporal Greg Connelly, a Royal Canadian Mounted Police (RCMP) officer assigned to the Border Enforcement Team in Windsor. The Board found the Corporal’s testimony to be credible and trustworthy in the circumstances of the case. 9 The Board concluded that the drug ring of which the Applicant formed a part constituted a criminal organization for the purposes of IRPA. Despite its lack of formal structure, the Board found that the ring “executed trafficking in a way that the activity is part of a pattern of Lennon v. Canada D.G. Near J. 347

criminal activity planned and organized by a number of persons acting in concert in furtherance of the commission of an offence punishable under an Act of Parliament by way of indictment.” 10 The Board pointed to the Federal Court of Appeal case, Sittampalam v. Canada (Minister of Citizenship & Immigration), 2006 FCA 326, [2006] F.C.J. No. 1512 (F.C.A.) to highlight that the word “organization” is to be given a broad and unrestrictive interpretation. It also identified that Parliament’s objective in IRPA was to prioritize security, “treat[ing] criminals and security threats less leniently than under the former Act.” 11 It ultimately found the following: Although each member of this drug ring engaged in a variety of tasks within the group, they all played a significant role in achieving financial success for the organization. This group was not formed randomly for the immediate commission of a single offence, but to the contrary, the ring operated over a period of one year. The large amounts of money exchanged for drugs and distributed by the ring were carried out on a regular basis during their existence. The nature of the criminal convictions of those implicated in this drug ring and their activities while committing a variety of crimes are in my view indicative of the clandestine nature which many organized crime groups operate. Although the group was loosely organized I believe Corporal Connelly’s testimony that [three of the other members] played major roles as co-coordinators which allowed the organization to operate. The documentary and oral evidence clearly establishes [the Applicant] was an intricate part of the organization and deeply entrenched in the group’s criminal activity.

III. Issues 12 The sole issue in this application is whether the Board erred in its interpretation and application of paragraph 37(1)(a) of IRPA.

IV. Standard of Review 13 It is well established that the Board’s determination of inadmissibility on grounds of organized criminality is largely an assessment of facts, and is thus to be reviewed on the standard of reasonableness (see M’Bosso c. Canada (Ministre de la Citoyennet´e & de l’Immigration), 2011 FC 302, [2011] F.C.J. No. 345 (F.C.) at para 53; Castelly c. Canada (Ministre de la Citoyennet´e & de l’Immigration), 2008 FC 788, [2008] F.C.J. No. 999 (F.C.) at paras 10-12). 348 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

14 For the purposes of a paragraph 37(1)(a) of IRPA analysis, reasonableness is concerned with “the existence of justification, transparency and intelligibility in the decision-making process” and 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; Castelly, above, at para 12).

V. Analysis 15 Paragraph 37(1)(a) of IRPA states as follows: Organized criminality 37. (1) A permanent resident or a foreign national is inadmissible on grounds of organized criminality for (a) being a member of an organization that is believed on reasonable grounds to be or to have been engaged in activity that is part of a pattern of criminal activity planned and organized by a number of persons acting in concert in furtherance of the commission of an offence punishable under an Act of Parlia- ment by way of indictment, or in furtherance of the commission of an offence outside Canada that, if committed in Can- ada, would constitute such an offence, or engaging in activity that is part of such a pattern; Activités de criminalité organisée 37. (1) Emportent interdiction de territoire pour criminalité organisée les faits suivants: a)etre ˆ membre d’une organisation dont il y a des motifs raison- nables de croire qu’elle se livre ou s’est livrée a` des activités faisant partie d’un plan d’activités criminelles organisées par plusieurs personnes agissant de concert en vue de la perpétra- tion d’une infraction a` une loi fédérale punissable par mise en accusation ou de la perpétration, hors du Canada, d’une infraction qui, commise au Canada, constituerait une telle infraction, ou se livrer a` des activités faisant partie d’un tel plan; 16 The Applicant contests the Board’s finding that he was a member of a criminal organization. He points to the fact that there were no criminal organization charges laid in any of the criminal proceedings and to the absence of various factors that this Court has purportedly identified as indicia of both the existence of a criminal organization and an individual’s membership therein. Lennon v. Canada D.G. Near J. 349

17 Specifically, the Applicant relies on Sittampalam, above, Thanaratnam v. Canada (Minister of Citizenship & Immigration), 2004 FC 349, [2004] F.C.J. No. 395 (F.C.), and Amaya v. Canada (Minister of Public Safety & Emergency Preparedness), 2007 FC 549, [2007] F.C.J. No. 743 (F.C.) to argue that there is no criminal organization in the present case because there is, inter alia, no name or identity tied to the drug ring, no structure or hierarchy comprising three or more individuals, no identifying markers on the members, or no group benefit. 18 The very cases the Applicant cites, however, emphasize that criminal organizations are “usually rather loosely and informally structured, which structures vary dramatically” (Sittampalam, above, at para 39), and that “there are no minimum or mandatory attributes that the group must have” in order to be a criminal organization for the purposes of IRPA (Thanaratnam, above, at para 30). While some of the indicia mentioned by the Applicant can be helpful in assessing whether a criminal organization exists, no one element is essential. 19 This Court has further been clear that it was not Parliament’s intent to adopt the definition of “criminal organization” from the criminal context. Rather, the objectives of IRPA indicate an intent to prioritize the security of Canadians and, as such, an “unrestricted and broad” interpretation of “organization” in paragraph 37(1)(a) is in order (Sittampalam, above, at para 36). Indeed, a flexible approach has been championed by this Court, so that looseness and informality in the structure of a group do not “thwart the purpose of IRPA” (Sittampalam, above, at para 39). 20 This was exactly the approach taken by the Board in the case at hand. It weighed the evidence before it and came to the conclusion that the drug ring, despite its loose organization, was led by three co-coordinators. The Board further found that the group was “not formed randomly for the immediate commission of a single offence” but rather continued in operation for a full year. The Board concluded that the evidence, including the Applicant’s own admission to acting as a courier for the group, was sufficient to demonstrate that the Applicant was a member of the organization. As such, I find that the Board’s decision falls within the range of possible, acceptable outcomes defensible in respect of the facts and the law and is thus reasonable. 21 I note additionally, as the Respondent points out, that the schemes under paragraph 37(1)(a) of IRPA and under the Criminal Code, RSC, 1985, c C-46 are distinct, involving, among other things, different bur- dens of proof. It would thus not necessarily be unreasonable for the 350 IMMIGRATION LAW REPORTER 11 Imm. L.R. (4th)

Board to believe that an individual was a member of a criminal organization for the purposes of IRPA where no charges of criminal organization had been laid with a view to conviction in the criminal context. The Board nonetheless considered the lack of criminal organization charges laid by the police in this particular case, inquiring specifically into the matter at the hearing, and came to a reasonable conclusion on the basis of the evidence before it.

VI. Conclusion 22 The Board adopted the broad and unrestricted approach to assessing whether the Applicant was a member of a criminal organization under paragraph 37(1)(a) of IRPA called for on several occasions by this Court, and came to a reasonable conclusion based on its assessment of the evidence.

Judgment THIS COURT’S JUDGMENT is that this application for judicial review is dismissed. Application dismissed.