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The International Information Network for Canadian Immigration Practitioners 950-1111 Melville Street Lexbase distributes information concerning 2628 S.W. Marine Drive Vancouver, B.C. Canada V6E 3V6 three areas in the field of immigration: Vancouver, B.C. Canada V6P 6C2 Telephone: (604) 688-6583 Immigration Delivery System Telephone: (604) 688-6583 Facsimile: (604) 689-1327 Immigration Policy and Planning Facsimile: (604) 689-1327 E-Mail: [email protected] Immigration Jurisprudence E-Mail: [email protected]

LEXBASE SENDING 2015 - FEBRUARY

Canadian immigration practitioners in the public and private sectors

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IMMIGRATION POLICY AND OPERATIONS

1. “Lessons Learned” Study Lexbase: It’s easy to snapshot a problem. It’s more difficult to identify a challenge and at the same time, provide a practical ‘real world’ solution in an era of budgetary restraint. The internal draft report obtained under Access to Information from the Integration Branch of Citizenship and Immigration Canada reviews immigrant settlement program in British Columbia for the period 1998-2013. This draft report was not intended for distribution, and adopts a “lessons learned approach” rather than a “formal evaluation”. There is no doubt some aspects of this draft report will be viewed as potentially politically embarrassing. On the other hand, the candid report clearly shows a prudent and practical administrative problem-solving approach for improving the immigrant settlement program in British Columbia. Bear in mind that it is likely that many of the concerns reviewed in the 2013 draft report about reporting, administration, and accountability of BC’s settlement of BC-destined immigrants are in the process of being resolved, or have been resolved. Overall, this is a solid review of administrative history for BC’s settlement and integration for the period 1998-2013, and worth reading.

“British Columbia’s Contribution to Settlement and Integration 1998-2013 Draft Report” (Not for Distribution) - Integration Branch, Citizenship and Immigration Canada (61 pages)

Extracts: “BC reports have historically been, and remain, less than effective in presenting financial information, especially the context for expenditures and explanation of funding lapses. While lapses of funding were mentioned, no details were provided and significant amounts were not accounted for.”

“In communications with the Province, CIC has expressed that the financial information reported was not sufficient, yet the Department was not effective in ensuring that these requirements were met. While the 2010 Agreement outlined the need for recurrent evaluations and audit results to be shared with CIC, the reports were seldom shared with CIC nor posted online.”

“CIC officials working on the management and administration of the Agreements also noted that at times the Annual Reports submitted by BC did not clearly distinguish between provincial and federal spending, or provide information on previously deferred funding. From 2006-09, federal funding for settlement programs in BC nearly tripled, with the BC Government accumulating approximately $80M in deferred funding. While the WelcomeBC Business and Investment Plan contained a financial model for spending down deferred funds while achieving a sustainable level of programming by 2015/16, CIC officials felt that the funds were not invested in a timely manner and lacked the appropriate level of accountability and planning.”

“In addition, it was not clear if there was sufficient provincial funding to cover federally ineligible clients and activities. It was not clear if some BC contracts allowed Canadian citizens to access up to 30% of the programming. BC respondents noted that while they recognized this was a concern, BC had provided information to CIC regarding these clients, and that the percentages were calculated to ensure that the services provided were aligned to BC's contributions. While many of the issues were raised and discussed during the negotiation of the last Agreement and addressed to some extent by either changes to the design and delivery or programming and increased reporting and accountability, CIC officials felt that these changes did not occur in a timely manner and could have been rectified in the earlier phases of

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the Agreement.” “…it was decided that CIC would take a lessons learned approach rather than a formal evaluation in advance of resuming its responsibility of administering services in the Province effective April 1st, 2014.”

“The Province experienced a shift in the immigration level and categories throughout the years of the Agreement which in turn impacted settlement and integration program offerings. A diverse range of service providing organizations received funding throughout the Agreement which in turn resulted in innovative and responsive programming for various segments of the newcomer population. These organizations tended to provide either language or settlement based services which was reflective in the composition of the settlement sector in the Province.

“The Provincial Nominee (PN) class was the fastest growing immigration class to BC. Refugees accounted for a small share of total immigrants to BC when compared to other Provinces. Between 2004 and 2008, Refugees made up 4.8% of total immigrants to BC, the lowest of all Provinces. The source country of Refugees to the Province changed from year to year. In 2008, the Province received Refugees from 70 different countries (based on country of citizenship). Based on most recent Annual Reports from 2009-2010, approximately 60% of newcomers to BC arrived from the Asia Pacific Regions. In BC the number of TFWs residing in the Province has more than doubled since 2004 (from 26,761 TFWs in 2004 to 69,955 in 2011). In 2011, BC admitted 46,378 TFWs and 34,785 new permanent residents - 21,904 of those in the Economic class.”

“Since 2008-09, funding allocations for settlement services in BC were determined under the national settlement funding formula (the Formula), which is based on BC’s share of immigrant intake. For fiscal year 2013-14, CIC's net allocation to BC was $104.1M, down from $116.9M for 2012-13.”

“By virtue of its immigration Agreement with the Government of Canada, in addition to the regular settlement funding allocations, BC received an additional contribution funding (Vote 5) to compensate for the administration costs. Starting in 2014-15, as result of resuming management of federally funded settlement services in BC, the allocations and the administration costs will no longer be paid to the Province. This change will not affect the regular settlement funding allocation for services in BC, which will continue to be determined using the national settlement funding formula.”

“CIC officials had on-going concerns regarding consistent lapsed funds, accountability and access to evaluation findings. CIC also had questions related to BC serving non-eligible clients such as Canadian citizens and Temporary Foreign Workers.”

“A number of significant lessons emerged from this exercise which will be important considerations for both BC and CIC going forward. Some of these lessons include:

Clear and specific direction results in better and quality of information, for example clear direction must be given to all funding recipients and should be precise yet flexible enough to reflect the changes in program implementation. Regular collection of information on client outcomes is an integral aspect of a performance system to provide thorough evidence on program success and trends over time. With outcome focus and outcome information, program achievements and values can be substantiated. Data collection tools must be made effective to supporting reporting on results and resource utilization and in presenting effectively vis-à-vis established frameworks and results.” “Performance and financial information should be detailed and accompanied by narrative analysis to provide context and explanation of trends and variances. Any issues should be raised early to prevent over or under utilization of resources. The risks, challenges, problems, unexpected events and trends, are a crucial part of development and delivery of settlement programming. Presenting this information creates a more balanced and realistic picture of the Program. In the future, there should be clear and specific guidelines regarding the reporting and spending of lapsed funds as well as consistent and stable procurement system in place to allow for fair and transparent processes.” “In addition, clear accountability frameworks are crucial to ensure that all involved parties share the same understanding of the program direction, expected results, measurements and guide development of tools//methods for data collection. Going forward, the Federal Government will ensure that settlement services in BC are consistent with programming delivered across the country while addressing regional and local priorities. CIC looks forward to continuing its work with the BC Government as the Province determines its role in helping newcomers integrate into BC communities.”


2. “Overview of Employment and Skills in the Construction Sector” Prepared by Strategic Policy & Research Branch and the Skills Employment Branch February 2014 (19 pages) Employment and Social Development Canada - “For Internal Use Only” - Current Labour Market Pressures Provincial Variation in Labour Demand: “There is a need to recruit 246,000 new workers to meet expansion and replacement demand between 2013 and 2021. This demand will vary from Province to Province: BC, Alberta, Manitoba, Ontario and PEI are moving into a new cycle of expansion that will raise employment by 2021. BC will see employment growth of 16% from 2009 to 2021. New jobs are being added on top of all-time record high employment. In many markets the availability of skilled and experienced labour is currently limited. Saskatchewan and Newfoundland and Labrador are in a peak labour market and will have recruiting challenges into 2014. Markets are tightest as employment grows, and workers will need to move to where jobs are. New resource projects have been added in 2013 for Saskatchewan and employment will continue to grow, reaching a peak in 2015. In Newfoundland and Labrador, recruiting is underway for resource projects that are expected to reach a peak in 2014. Longer term employment levels in each Province settle well above the pre-2009 recession industry norms. These levels of activity reflect ongoing resource development in 2017 and onward. Quebec, New Brunswick and Nova Scotia have milder growth and limited year-to-year changes in total construction employment. Overall, this relative stability will allow their labour markets to balance as the needed workforce adjusts to meet long-term requirements. There will be labour force challenges in these markets. For these Provinces, sustaining employment at or near the current peaks may require new recruiting from outside the industry. Sub-Market Variation in Labour Demand: Trends in industry growth point to strong non-residential markets and weaker residential markets. Expansion demands are most volatile in industrial and engineering construction markets and in particular in the centres of resource construction spread across the North. Residential construction: Short-term housing downturns in Central Canada will reduce employment in 2013 and 2014, while partially offsetting gains in the Western Provinces. Long-term trends and migration cycles limit gains in housing activity after 2017.”

3. Assessing Declared Work Experience in MI-8 FSW Applications “MANILA 2013 Anti-Fraud Report – Assessing Declared Work Experience in MI-8 FSW Applications (received after May 4, 2013 under the Federal Skilled Worker Program)” (26 pages) Caroline Simard to Catherine Bailey - April 29, 2014: “With a new set of Ministerial Instructions (MI-8) applicable for applications received after May 4, 2013 under the Federal Skilled Worker Program (FSW), new occupations were introduced in the list of the 24 qualifying NOC under MI-8. MANlL-EIU [Manila Visa Office, Economic Immigration Unit] has decided to conduct an anti-fraud exercise on 3 newly introduced occupations in order to get a better sense of these files and identify potential risk profiles or indicators. Mainly, we found that principal applicant's work experience was not as stated in the application for 16 out of the 59 files included in the sample (27%)- Following interview, it was determined that many applicants have declared work experience under a specific NOC without having performed the main duties listed under the qualifying occupation.” “After analysis of the results, we were startled by the number of non-compliant files (A16 - being truthful) which amounted to 27% of the sample. To us, this is an indicator that visa officers should not hesitate to interview when concerns are identified. In fact, we concluded that our interview rate is lower than it should be to have a comfortable, sound and safe risk-management strategy in our unit. Not only do we recommend a higher interview rate, but we recommend that similar exercises be conducted on other NOC codes in order to give officers better understanding of the profiles and risks associated with our clientele.” Target Group: “The target group was permanent resident applications received between May 10 and Sep 25, 2013 under the Federal Skilled Worker Program - Ministerial Instructions 8 that have been determined qualified by Centralized Intake Office in Sydney, Nova Scotia under the following NOC codes: 2174 Computer programmers and interactive media developers; 2263 Inspectors in public and environmental health and occupational health and safety 1112 Financial and investment analysts. EIU aims to verify the level of compliance in these 3 MI-8 occupations in order to determine whether or an appropriate level of risk-management is being applied when processing MI-8 files in these NOC codes. The goal is also to identify potential fraud trends and generate risk-profiles for these newly included MI-8 occupations.” NOC 1112 – Financial and Investment Analysts: “This exercise showed that principal applicant’s work experience was stated in the application for 62% of the files examined under NOC 1112. The remaining 38% were found not to be performing a significant number of the main duties of a Financial and Investment Analyst as described by NOC. Of this percentage, 60% were refused at selection, while 40% were found eligible under OB338 as they had listed other 0, A and B NOC codes in their Schedule 3 and were found to have qualifying work experience under those occupations.


The applicants whose applications were refused were determined to be employed as revenue officer, financial controller, and accountant. It is worth noting that 66% of the refused applications were not represented by an immigration consultant.” “It is interesting to note that 66% of the applicants whose studies were not related to the qualifying occupation had received in-house training and were found to be eligible.” NOC 2174 - Computer Programmer and Interactive Media Developer: At the end of the QA interviews, it was determined that the work experience was as stated in the application for 92% of files examined under this NOC. The remaining 8% was refused as the applicant was found not to be performing a significant number of the main duties of a Computer Programmer. The refused applicant had declared full-time employment with the family business while studying a Bachelor's degree followed by a Master's degree in Nursing. This person had identified another NOC code on her application, but it was also determined that she had not performed a significant number of the main duties in this alternative NOC code. It is worth noting that employment under the alternative NOC was also with the same family business. NOC 2263 – Inspectors in Public and Environmental Health and Occupational Health and Safety: “The results for this occupation show that work experience was a match to the declarations made in the Schedule 3 in 70% of the cases examined in the sample. The remaining 30% were found not to have the required 1 year work experience [20%] or not performing a significant number of the main duties of NOC 2263 (Inspector In Public and Environmental Health and Occupational Health and Safety). Of this percentage. 70% were refused while 30% were accepted under OB338 as they had identified other NOC codes for which they qualified.” “It was observed that at least 58% of applicants applying under NOC 2263 presented studies in Nursing. However, 21% of applicants included in our sample presented studies related to the field were they have declared employment under NOC 2263. For example. one of the selected applicants declared a Master's Degree in Environmental Studies and indicated employment as an Inspector in Environment, Health and Safety for an important environmental project aiming to implement the regulations in link with the Philippines' commitment to the Stockholm convention regarding the use of Polychlorinated Biphenyis in the energy production process. Lastly, another 11% presented studies that were neither related to their occupation nor nursing. However, it is important to note that the majority of those selected under the NOC also presented related training and/or inspector accreditation (including the Nursing graduates found eligible). It is worth noting that 90% of applicants whose applications were refused declared work experience as staff/registered nurse and presented a diploma of BS in Nursing. The other 10% presented studies as Doctor of Medicine. The exercise resulted in a 79% acceptance rate and 21% refusal rate under NOC 2263. This includes those who were accepted in accordance with OB 338 that added 9% to the original acceptance rate of 70%.

“It is reasonable to conclude that the current employment situation is a significant indicator as to whether or not the principal applicant presents work experience under the qualifying NOC and has declared his employment history accurately. The fact that the principal applicant is not currently employed under the identified qualifying occupation does not automatically mean that the applicant does not meet the eligibility requirements, but it definitely indicates that one should verify all declared work experiences thoroughly.”

“For applicants with qualifying NOC 1112 (Financial and Investment Analysts) and NOC 2263 (Inspectors in Public Environmental Health and Occupational Health and Safety), it was found the documents alone are often not sufficient to establish if the principal applicant meets the NOC description in, respectively, 85% and 70% of the time. Hence, in terms of procedural fairness and program integrity, we believe that it is best that interviews continue to be conducted for applicants applying under these NOCs when concerns are identified following initial review. “

“On the other hand, the results for applicants with qualifying NOC 2174 (Computer Programmers and Interactive Media Developers) show that they are generally straightforward. Therefore, officers should continue to apply good risk-management in waiving interviews for applications made under this occupation. The main indicators of low-risk case are: related education and employment within a reputable corporation or a multinational.”

“Not only are interviews useful to acquire better knowledge of the clientele, but they are probably the best way to identify trends or patterns in terms of fraud or risk-profiles. In addition, interviews often results in faster eligibility decisions as they allow the visa officer to obtain, verify information and render a decision the same day (that is if the interview is scheduled within 4 weeks following the initial review). Therefore, officers may want to consider interviews as one of their best practices in link with good client service and reduction of processing time.”

4. CBSA 2013 Reports - Security incidents - Unauthorized disclosure of information Obtained under Access to Information - (4 pages)

Extracts of CBSA incidents and CBSA consequences: “Failure to properly store firearm – one day suspension


without pay”; “Failure to properly secure duty firearm with the required locking device, failed to safely store firearm in designated firearms storage locker, failed to store firearm in designated arming room – suspension without pay 3 days (22.5 hours)”; “Violation of CBSA Code of Conduct and Arming Policies – did not safely secure and store DFA (left DASCO unlocked). Employee is a Superintendent - suspension without pay 3 days (22.5 hours)”; “Unauthorized disclosure of sensitive/confidential information – suspension without pay - 20 days – 150 hours”; “Negligent in performance of duties – Failure to follow regional disposal procedures – suspension without pay – 7.5 hours”

5. Renunciation of Canadian Citizenship - “the numbers” Obtained under Access to Information - (2 pages)

January 3, 2014 DPU-14-0011 Renouncing Citizenship-OPS-2014-0012 Calendar Year 2008 2009 2010 2011 2012 2013 (Jan-June) Approved Renunciations 120 136 226 187 192 97

6. Operational Bulletins and other Written Guidelines Copies sent automatically to Lexbase Guidelines subscribers. Subscription info: [email protected] PRG-2014-65: Transit Without a Visa /China Transit Program expansion – China Southern TWOV/CTP is

expanded to include China Southern Airlines. The CTP permits Chinese nationals in possession of a valid U.S. visa, travelling on an approved carrier and originating from one of six approved embarkation points in Asia (Beijing, Guangzhou, Hong Kong, Shanghai, Manila and Taipei) to transit to and from the U.S. though an approved Canadian airport without having to obtain a Canadian TRV. Eligible national for TWOV are from Indonesia, Philippines, Taiwan and Thailand.” – 7.11.14 (4 pages)

PRG-2014-59: Procedures for Dealing with Travellers Suffering from Mental Illness – 20.10.14 (2 pages) PRG-2014-40: Transit Without a Visa /China Transit Program expansion – Westjet TWOV/CTP is expanded

to include Westjet – 12.8.14 (5 pages) OPS-2014-11: Processing entries for clients whose confirmation of permanent residence does not appear in

FOSS July 4, 2014 “The examination should be deferred pursuant to A23 and the client should be instructed to contact the CIC Call Centre to arrange an appointment to complete the landing process. This takes precedence over the direction in CIC OB 545, which indicated that the clients should be referred to an inland CIC office to be landed. – 4.7.14 (2 pages)

NO NUMBER: Vanessa Malik to Jason Daigle Canada Border Services Agency, Traveller Operations

Division, Border Operations Directorate Subject: OB specialized knowledge “Hi Jason, Actually, the OB does apply to NAFTA ICTs. Provided below is further clarification I received from CIC: Yes, officers should be applying the expanded guidelines in OB 575 (excluding wage) when assessing NAFTA ICTs with skilled knowledge.” “Certain other Free-Trade Agreements (FTAs) i.e. Peru and Columbia, may contain a definition that requires “advanced expertise or proprietary knowledge” while the new guidelines require they have “both”. And since the NAFTA does not actually contain a definition of skilled knowledge (only some guidelines in the FW1), the new guidelines must be applied for NAFTA applicants when assessing skilled knowledge. The NAFTA covers Intra-Company Transferee (ICT) specialized knowledge without a wage requirement and therefore ICT skilled knowledge workers from the U.S. and Mexico are not subject to the wage requirement. I hope you find this information useful.” – 27.6.14 (2 pages)

NO NUMBER: Any foreign-based musical and theatrical individuals and groups and their essential crew

including performing artists (i.e. bands and musicians), performing at venues whose primary purpose is to sell food and drinks for time-limited engagements as per current guidelines, will now be eligible for a WP exemption. Effective immediately, when processing performing artists entering Canada, as per amended R186(g)(ii), BSOs will no longer need to assess the venue when determining if a WP is required. A WP and LMIA will still be required for foreign performing artists that are: on the production of film, television or radio broadcast; not performing in a time-limited engagement; or in an "employment relationship” (e.g., a permanent piano bar employee) with the organization or business in Canada that is contracting for their


services. – 20.6.14 (4 pages) PRG-2014-28: Changes to Processing of Study Permit Applications: New Regulations regarding Designated

Learning Institutions” Study Permits are limited to applicants who have been accepted to undertake a program of study at an educational institution that is designated to host international students. – 28.5.14 (6 pages)

OPS-2014-08: International Experience Canada Work Permit Application - Process for United States (US)

Citizens and Permanent Residents – 22.5.14 (2 pages)

7. A Real Smiley Colette Lemieux, A/Coordinator Case Review-Immigration NHQ-Case Management to NIL-LIN; Andriata Chirooda; Stephanie Legault; Jessica DoyIe; Helene Chabot Subject: Secret Memos - July 14 2014 - 10:54 AM

“Hello all, Just a gentle reminder that for secret memos, please ensure to use the template where the signature box also includes a line for the date signed. Helene: copying you in case you ever have to do one of these again. Thank you.”

Helene Chabot, Analyst NHQ-Case Management to Colette Lemieux, A/Coordinator Case Review-Immigration NHQ-Case Management - July 14 2014 - 2:14 PM “We have secret memos ?????????”

IMMIGRATION JURISPRUDENCE (during previous 30 days) FEDERAL COURT I. CITIZENSHIP ISSUES Citizenship Judge may make inquiries, review oral & documentary evidence, to arrive at decision which of 3 tests to use 1. RONY HUSSNI EL CHMOURY T-1261-14 2014 FC 1250 DECEMBER 22, 2014 ZINN J.: […] Every Citizenship Judge knows that he or she has discretion to apply any one of three tests that have been developed. Each also knows that an applicant may be granted citizenship even when he or she has less than the required days of physical presence, if one of the qualitative tests is used. As such, […] a Citizenship Judge cannot be faulted for making inquiries of an Applicant and reviewing the oral and documentary evidence in order to arrive at a decision as to which of the three tests he or she will use in any particular case. It is possible that had the Citizenship Judge here been satisfied that Mr. El Chmoury had in fact been resident in Canada for the 1082 days of physical presence claimed, that the Judge may have considered whether to use a qualitative test of residence in assessing his application. There is no error of law in so doing. It is a reasonable and proper inquiry upon which to base the discretionary decision as to the test to be applied. In this case, the Citizenship Judge examined the evidence and concluded that it did not even support Mr. El Chmoury’s claim to have been physically present in Canada for 1082 days. […][T]here was no Koo analysis; rather, there was an analysis of the oral and documentary evidence as evidence of physical presence. I do not accept the submission that in the face of an application having less than 1095 days presence such an analysis was irrelevant unless the Citizenship Judge was undertaking a Koo analysis of the application. It is and was a relevant analysis going to whether to exercise discretion and use a qualitative test. For these reasons the appeal is dismissed, with costs fixed at $250.00. [Appeal dismissed][COSTS: $250] COUNSEL: ALEXANDRA MANN SHERRITT GREENE CALGARY Residential Questionnaire cannot be indicative, of how and on what basis Judge was to assess residency requirement 2. MIGUEL ANGEL SLIKAS ARWAS ET. AL. T-1651-13 2014 FC 575 JUNE 17, 2014 LEBLANC J.: […] Appeals from decisions of Citizenship Judges are not judicial review proceedings per se although they are governed by the same rules of procedure (Rule 300(c) of the Federal Courts Rules). Such appeals used to take the form of de novo proceedings but it is no longer the case as of 1998. […] For the past three decades, there has been an ongoing debate within this Court as to what paragraph 5(1)(c) of the Act exactly means. […] Citizenship Judges are entitled to choose which test they desire to use among the three tests developed by this Court and not be in error for choosing one over the other. That choice does not have to be rationalized; it is a matter of discretion. […] The role of this Court, in reviewing such decisions, is therefore not to substitute its opinion for that of the Citizenship Judge but to assess whether that judge applied the residency test chosen properly and in a coherent fashion. […] First, it is clear that the Citizenship Judge opted to assess the residency requirement on the basis of one test and one test only, which is that of physical presence developed in Pourghasemi. The Citizenship Judge’s decision in this regard is transparent and intelligible. There is no mention whatsoever in his analysis of qualitative factors. Furthermore, it is clear that his quantitative assessment was limited to the four years immediately preceding the date of the Applicants’ citizenship applications […]. [T]here is no indication whatsoever that the Citizenship Judge counted absences outside the relevant


residency assessment period in order to conclude as he did on the Applicants’ failure to meet the residency quantitative test. It is not an error for Citizenship Judges to refer to dates outside relevant residency assessment period, provided they do not actually count them in their quantitative analysis (Sotade v. M.C.I. 2011 FC 301). […] Finally, the Applicants’ argument that the Citizenship Judge failed to consider qualitative factors is without merit. […] Although this questionnaire sought some information of a qualitative nature, this is not indicative, and cannot be indicative, of how and on what basis the Citizenship Judge was to assess the residency requirement. This was the first of a two-step process leading to the referral of the Applicants’ file to the Citizenship Judge. Also, no legitimate expectations that the Applicants’ applications would be reviewed by way of a qualitative test could reasonably flow from this process. […] Once seized of the matter, it is up to the Citizenship Judge to opt for the test he wishes to apply and to require from the Applicant further evidence, if he or she feels there is a need for it. In the present case, the Citizenship Judge was therefore under no obligation to conduct an analysis of the Applicants’ residency situation by way of a qualitative test. There was no reviewable error on his part by not doing so. The same can be said of the notes taken by the Citizenship Judge. There was nothing wrong for the Judge in providing in his notes an overview of the status of various aspects of the Applicants’ application. This did not change the fact that he clearly and transparently opted to dispose of the […] applications on the basis of the physical presence test. [Appeals dismissed] COUNSEL: ALI M. AMINI LAW FIRM OF ALI M. AMINI TORONTO Citizenship Judge had the jurisdiction to re-test the Applicant’s knowledge of Canada at the oral hearing 3. HELEN WANG T-754-14 2014 FC 1187 DECEMBER 10, 2014 RENNIE J.: […][T]he Citizenship Judge had the jurisdiction to test the Applicant’s knowledge of Canada at the oral hearing. […] [T]he Citizenship Judge had more than ample reason to administer a retest. The answers to the questionnaire provided more than sufficient basis for the decision to retest. The Applicant […] met the residency requirement by a mere 9 days. Her husband had never lived in Canada and lost his permanent residency status in 2012. […][I]n Part 11 of the questionnaire eliciting absences from Canada the reason “vacation of 321 days” was noted. This alone was sufficient to trigger a re-examination. An absence from Canada for nearly a full year is not a vacation. The Citizenship Judge concluded: “You have not lived in Canada since the day of your application for citizenship on July 5, 2010, more than 3 years ago, and since then you have only visited Canada for less than six weeks in total. Accordingly, a genuine concern arises that you have lost touch with Canada, its institutions, its people, its values and traditions. In order to find that you have met the knowledge requirement of the Act, I must be satisfied that you have preserved this basic understanding of Canada.” The Citizenship Judge also concluded that the Applicant did not understand the responsibilities of Canadian citizenship because of her collection of GST/HST credits and child tax benefits while she and her child were out of Canada for extended periods of time. […][N]o objection can be taken to the Citizenship Judge’s decision to deny citizenship in these circumstances. The statutory scheme affords a wide measure of discretion to the Citizenship Judge to decide on proper information gathering procedures in order to satisfy herself that the Applicant possesses the requisite knowledge and, consequently, the Citizenship Judge had sufficient reason to justify a re-test. […] [I]t is clearly stated that at the hearing the Applicant “will also be asked questions to determine if you have […] an adequate knowledge of Canada”. At the very least, this notice is sufficient to trigger the Applicant’s due diligence to contact CIC to inquire about what types of questions may be asked, or how those questions would be asked. The Applicant did not engage in such an inquiry. […][T]his type of Notice to Appear properly informs applicants of the potential to be subjected to re-testing by a Citizenship Judge. […] The Citizenship Judge’s decision to re-test the Applicant’s knowledge of Canada did not breach the duty of procedural fairness. Sections 7, 15 and 3 of the Charter are not engaged: […] Section 7 is primarily, but not exclusively, concerned with the rights of individuals in the criminal justice context, including rights on search, seizure, detention, arrest, trial and imprisonment. […] The ability to immigrate and obtain citizenship is not among the fundamental choices relating to personal autonomy which would engage section 7. […][The] section 15 is engaged because she is discriminated against as a woman in Canada seeking citizenship while her husband remains in China […] argument fails at the threshold requirement that the Charter applies to government action: RWDSU v Dolphin Delivery Ltd., [1986] 2 SCR 573. […] This was a private family choice, outside the scope of government action. Finally, section 3 of the Charter only applies to “every citizen of Canada”. As [she] has not yet obtained citizenship, this provision of the Charter does not apply to her. […][Application dismissed] COUNSEL: LAWRENCE WONG LAWRENCE WONG & ASSOCIATES RICHMOND, BRITISH COLUMBIA Motion for confidentiality-proceedings regarding obtaining citizenship by fraud 4. CÉLESTIN HALINDINTWALI [RESPONDENT] T-1952-13 2014 CF 909 23 SEPTEMBRE 2014 BÉDARD J.: […] L’instance vise à faire déclarer par la Cour que le défendeur a obtenu la citoyenneté canadienne par fraude, fausse déclaration ou dissimulation intentionnelle de faits essentiels. […][L]a requête en confidentialité est accueillie.


[…] En l’espèce, le ministre m’a convaincue que l’identité des témoins dont les déclarations sont rapportées ou résumées dans l’affidavit de monsieur Exantus doit demeurer confidentielle. Le motif invoqué pour justifier le caractère confidentiel de l’identité des témoins réside dans le risque que la sécurité de ces personnes soit compromise si leur identité est dévoilée publiquement. La preuve non contredite démontre que certaines des personnes rencontrées dans le cadre des enquêtes de la GRC ont exprimé leur crainte de subir des représailles de la part de membres de leur communauté si leur identité était dévoilée. La preuve, et plus particulièrement l’affidavit de monsieur Alfred Kewnde, chef des enquêtes au bureau du Procureur du Tribunal pénal international pour le Rwanda qui avait été déposé devant la Cour supérieure dans le cadre du procès de Jacques Mungwarere et qui a été déposé comme pièce au soutien de l’affidavit de monsieur Exantus, démontre que les craintes liées à la sécurité personnelle exprimées par les personnes rencontrées dans le cadre des enquêtes sont sérieuses et réelles. Je suis donc satisfaite qu’il est justifié de préserver la confidentialité de l’identité des personnes rencontrées dans le cadre des enquêtes de la GRC concernant la participation alléguée du défendeur dans le génocide au Rwanda pour éviter que leur sécurité puisse être compromise. La menace à la sécurité des témoins constitue un risque sérieux qui doit être écarté pour préserver un intérêt important. Je considère également qu’il n’existe pas d’autres options raisonnables que celle consistant à ne pas permettre l’identification publique de l’identité des témoins pour écarter tout risque à leur sécurité. Je suis également convaincue que les effets bénéfiques de l’ordonnance en confidentialité l’emportent sur les effets préjudiciables, y compris sur la liberté d’expression qui comprend l’intérêt public dans la publicité des débats. […] Je suis également d’avis que les conclusions recherchées par le demandeur constituent les mesures qui limitent au strict minimum les informations qui seront déclarées confidentielles dans le contexte de la présente instance. […][Motion granted] COUNSEL FOR RESPONDENT: SÉBASTIEN DASYLVA, DIEUDONNÉ DETCHOU MONTRÉAL

II. IMMIGRATION ISSUES Skilled worker-“no insight into his or her reasoning process and it is entirely unclear why the decision was reached” 1. AMIRA LOTFY FARWIZ MILLIK IMM-3773-13 2015 FC 82 JANUARY 22, 2015 BOSWELL J.: […][She] is a 44 year old citizen of Egypt who received a job offer as an administrative secretary at the Queen’s Medical Centre, in Oakville, Ontario, from her sister, Dr. Bebawy. Following the issuance of a positive Arranged Employment Opinion from Service Canada […][she] applied […] under the Skilled Worker Program […]. [T]he Officer […]: The duties described in the letter from the Applicant’s employer were very vague and referred to “participating in” activities and, thus, were insufficient to assess the Applicant’s specific duties; The duties that the Applicant said that she had as an administrative assistant did not match the main duties of NOC codes 1241 or 1243; The duties that the Applicant said that she had as a teacher did not match the main duties of NOC code 4031; The original Arabic copy of the letter from her employer was not supplied and the copy on file had been translated in Ontario; The employment letter did not list the Applicant’s hours of work or confirm that she worked full time; The employment letter did not state the Applicant’s salary and no pay stubs or employment contract were provided in support of the application; The employment letter did not provide any contact information for the school where the Applicant worked; and The “[d]uties listed [in the employment letter] do not match any of the NOCs in which assessment is required”. The Officer thus concluded that the Applicant had not proven that she performed the duties of any of the occupations for which assessment had been requested. […][T]he Officer’s erroneous finding of fact as to her full-time work status, which error the Respondent concedes, casts doubt on the Officer’s entire review […]. In my view, this factual error clouded and confused the Officer’s analysis of the Applicant’s job duties as a teacher. […] [I]t was incumbent upon the Officer here to assess and analyze the “pith and substance” of the Applicant’s duties at the Manarat Alexandria Private School and consider those duties with the NOCs being assessed, something which the Officer did not do in the reasons. On the contrary, the Officer simply stated in the GCMS notes that he or she found the description of the duties in the letter from the Applicant’s employer “very vague” because they referred merely to “participating in” certain activities. […] [I]t was not reasonable for the Officer to microscopically examine the employer’s letter in this manner and then to conclude with reference to the duties listed in the letter: “Insufficient for me to assess her specific duties”. This Court’s decision in Komolafe is instructive […]: “...It is not for this Court to determine whether the applicant has in fact performed the actions described in the lead statement and a substantial number of the main duties. The agent must do so, with some line of reasoning which provides a basis for review. As Justice Richard Mosley found in Gulati v. Canada (Citizenship and Immigration), 2010 FC 451, it is impossible to assess the reasonableness of the officer’s conclusions without knowing which duties had not been performed. The decision provides no insight into the agent’s reasoning process. The agent merely stated her conclusion, without explanation. It is entirely unclear why the decision was reached.” The Officer’s conclusion that the “duties listed [in the employment letter] do not match any of the NOCs in which assessment is required” was made without any apparent evaluation or assessment of the Applicant’s duties at the Manarat Alexandria Private School. The Regulations require in paragraph 75(2)(c) that only a “substantial” number of the main duties be performed with respect to the NOC being assessed. It is not clear in this case that the Officer turned or directed his or her mind to the question of whether subsection 75(2) of the Regulations had been met. As to the adequacy or sufficiency of the Officer’s reasons in this case, this Court’s decision in Abbasi deserves note. […][T]he Officer’s decision in this case offers no insight into his or her reasoning process and it is entirely unclear why the decision


was reached. The Officer’s decision does not provide sufficient grounds for this Court to understand the Officer’s reasoning and, thus, is neither intelligible nor transparent. […][Application dismissed] COUNSEL: CHERYL ROBINSON CHANTAL DESLOGES PROFESSIONAL CORPORATION TORONTO Passport required for permanent residence-he renews his national passport-intention of reavailment 2. NAJEEB BASHIR [RESPONDENT] IMM-4732-14 2015 FC 51 JANUARY 15, 2015 BÉDARD J.: […] He arrived […] in June 2000 and claimed refugee protection which was granted to him in September 2001. On November 13, 2001, he applied for permanent residency, and he is still waiting for a decision. […][H]e has had his Pakistani passport renewed three times (in 2004, 2010 and 2012). […] He explained that he wanted to have a valid passport because he was hopeful he would eventually be able to travel to a third country such as Dubai to see his parents. He also confirmed that he never applied to obtain a travel document from the Canadian authorities. The Officer requested that the Respondent forward copies of his valid and expired passports. The next day, the Respondent sent copies of his Pakistani passports as well as a copy of his Pakistani National Identity Card. In a cover letter […], he indicated that he was carrying a valid Pakistani passport because he had been informed he would need to present a valid passport to CIC before he could obtain his “permanent residence papers”. […] First, it is difficult to see how the renewal of a national passport for the purpose of submitting it to CIC to finalize the permanent residency process can be seen as indicating an intention on the part of the Respondent to reavail himself of the protection of his country of nationality. Second, […] it was also open to the Board, in light of the evidence, to conclude that by renewing his passport with the intention to use it to travel to a third country to see his parents, the Respondent did not intend to reavail himself of the protection of the Pakistani authorities. […] The Board was tasked with analyzing [his] motivation when he renewed his passport and that is exactly what it did. […][T]he Board assessed the totality of [his] evidence, and it was satisfied that his explanations were credible and showed he did not have the intention of reavailing himself of the protection of the Pakistani authorities. […][T]his finding is reasonable in light of [his] evidence that he intended to use his national passport as a travel document to travel to a third country to see his parents, he did not intend to travel or return to Pakistan, and he believed that his Pakistani passport was the only travel document he could use to travel outside Canada with a status of permanent resident. In these specific circumstances, I consider that it was reasonable for the Board to conclude that there was no indication that [he] intended to ask for any substantive protection from Pakistan while traveling abroad. It was also open to the Board to conclude that the presumption of intention of reavailment created by paragraph 121 of the UNHCR Handbook had been rebutted by the Respondent’s explanations. The Board’s findings have an evidentiary basis and its reasoning is not unjustified, irrational or arbitrary. […] The Applicant contends that even if the Respondent had no intention of returning to his country of nationality, the fact that he requested a passport with the intention of using it to travel abroad constitutes in itself proof of reavailment, because he would then present himself as a citizen of Pakistan and could, if needed, avail himself of Pakistan’s protection. In other terms, obtaining a passport with the intention of using it as an identity document to travel outside of Canada, even with no intention to enter one’s country of nationality or to otherwise seek the protection of one’s country of nationality, cannot rebut the presumption of intention to reavail and entails cessation of refugee protection. With respect, I disagree for several reasons. First, I consider that the […] assertion would have the effect of introducing an additional, irrebutable presumption of intention of reavailment as soon as a refugee intends to travel abroad with a national passport, without any regard to the specific circumstances of each case. Such a presumption is not provided for in the UNHCR Handbook. Furthermore accepting the Applicant’s assertion would be contrary to the strict approach to the cessation clauses outlined in the UNHCR Handbook. […] [T]he Applicant’s assertion usurps the Board’s mandate under subsection 108(1)(a) of the IRPA and paragraph 119 of the UNHCR Handbook to assess the refugee’s motivation in order to determine whether he intended to reavail himself of the protection of his country of nationality when he renewed his national passport for the purpose of travelling. […][T]he fact that a refugee did not intend to travel or return to his country of nationality may be relevant to the assessment of his intention. […][T]his assessment must be made by the Board in light of the circumstances of each case. […][T]here is no logical reason to irrefutably presume that as soon as a refugee states that he intends to travel abroad with a national passport, he is deemed to have had the intention of reavailing himself of the protection of his country of nationality. Each situation must turn on its own circumstances and it falls on the Board to assess these circumstances. […][Minister’s application dismissed] CERTIFIED: “1. Does applying for and obtaining a passport from one’s country of nationality with the intention to use it to travel outside Canada, but not in one’s country of nationality, constitute, in all circumstances, irrefutable proof that the refugee had the intention of reavailing himself of the protection of his country of nationality? 2. Does applying for and obtaining a passport from one’s country of nationality with the intention to use it to travel outside Canada, but not in one’s country of nationality constitute, in all circumstances, a circumstance that can never serve to rebut the presumption created at paragraph 121 of the UNHCR Handbook?” COUNSEL FOR RESPONDENT: RACHEL BENAROCH MONTRÉAL


Reconsider LICO-acknowledged that discretion exists but claiming that it is not possible to reconsider 3. VANHEANG PHAN IMM-5831-13 2014 FC 1203 DECEMBER 11, 2014 ROY J.: In what resembles a comedy of errors which has generated a fair amount of confusion, the Applicant was granted leave to challenge the decision of an Immigration Officer […] who chose to decide that she cannot reconsider a refusal to continue a sponsorship application as a member of the Family Class. […] The only issue is whether or not the decision […] to refuse to reconsider reopening the file […] is justified because the decision-maker was functus officio. […] The letter […]: “Once a sponsorship is withdrawn, subsequent instructions to continue the processing of the file cannot be considered.” [T]he decision-maker fettered her discretion, discretion she does not deny she has both in submissions before the IAD and before this Court. In technical terms, the Immigration Officer declared herself to be functus officio, that is “once an adjudicator has done everything necessary to perfect the decision, they are barred from revisiting them other than to correct clerical or other minor technical errors” (Brown and Evans, Judicial Review of Administrative Action in Canada (Toronto, Ont: Carswell, 2013), §12:6211). In order to counter the obvious difficulty, having already acknowledged that the discretion exists but claiming on the face of the record that it is not possible to reconsider, the Respondent filed an affidavit well after the decision of October 3, 2012. A year later, the decision-maker contended that she in fact turned her mind to the Applicant’s explanation for why she wished to continue to sponsor her family but concluded that the explanation was insufficient. In support of her contention, she refers to the GCMS notes. The GCMS notes are of no assistance. They do not provide anything other than a recital of what the Applicant is asking for, only to conclude as in the official letter “that we cannot reconsider his application.” I fail to see how stating the arguments put forward, which is what was done in effect by recounting what was in the letter of the Applicant asking for a reconsideration, is in any way a consideration of their merit, or lack thereof. Instead, the decision-maker states, more than once, that the application cannot be reconsidered, as opposed to being reconsidered and denied whatever the reason may be. Both the letter itself and the GCMS notes state that a revision is not possible. That, the Respondent concedes, is not the state of the law and the Respondent has not resiled from that position. With respect, the position taken by the decision-maker that she did not consider herself functus officio and that she in fact concluded the matter on its merits continues the comedy of errors in this case. There are two reasons for that conclusion. First, the record speaks for itself. Even when one considers the affidavit filed one year after the decision was made, it at best contradicts the record. […] Second, and more fundamentally, the affidavit of the decision-maker is attempting to bootstrap her decision. It is an affidavit in the proceedings before this Court well after a decision has been made. This is not permissible: a judicial review application exists for the purpose of controlling the legality of a decision made by an administrative decision-maker. The goalposts are where they are; they cannot be moved. […][A] decision-maker may not supplement the reasons for the decision on an application for judicial review of that decision […]. In the case at bar, not only does this decision-maker seek to supplement, by providing more information about the income calculations, but she seeks to change the decision under review, from one where the Officer lacked discretion and was unable to consider the Applicant’s request to one where she did consider the Applicant’s request but merely denied it. […] [Application allowed] COUNSEL: MARY LAM TORONTO Officer concluded in order for the response to be considered, there had to be a Representative Form signed by Applicants 4. VASANTHA BALASUNDARAM ET. AL. IMM-3825-14 2015 FC 38 JANUARY 12, 2015 ANNIS J.: […][T]he lawyer had clearly indicated that the Applicants intended to respond to the fairness letter and to provide an explanation for the Officer’s concerns. The Officer concluded that in order for the response to be considered, there had to be a Representative Form signed by the Applicants. However, such a requirement is only stipulated in the Manual, a policy document, and nowhere in the Act or Regulations. The response complied with the legislation by providing the lawyer’s details and it was clear that he was responding to the procedural fairness letter. […][T]here was a failure of natural justice by the refusal of the Officer to advise their lawyer that the Representation Form was not enclosed and that a similar form signed by the Applicants would also be necessary. […] CIC may adopt general practices normally followed by organizations in the operations of its daily affairs. The requirement that there be some form of official retainer by one person permitting another to represent his or her interests is a normal precautionary practice required to protect the organization from subsequent allegations that the representative was not authorized to represent the alleged principal. Failing the provision of such a form, CIC was entitled to refuse to consider the Representative’s submissions. […][A] CIC delegate may have to take the extra step to permit representations to be made if it is obvious that some slip or other innocent misunderstanding occurred that prevented receipt of the form. Thus, when discharging its duty to act fairly in obtaining representations from claimants, and faced with situations such as a missing enclosure or a misunderstanding as to the persons covered by a Representation Form, and where the administrative


requirements are minor in nature, the Officer should provide the claimants with an opportunity to correct the technical error or omission in order to obtain their representations. […] Norms of conduct develop and persons come to rely upon them. One of those norms that normally applies is that obvious slips and omissions will not be automatically fatal and may be corrected. For example, the failure to include an attachment to an email raises the expectation that the addressee will advise the sender of his or her error. Similarly, when the substantive interests of the sponsor and the Applicant are identical, unless there are protracted administrative steps required, the Officer should seek to correct the innocent misunderstanding. In this case, the Officer ought to have notified the Applicants about the missing enclosure and sought to clarify the confusion on the authority arising from the fact that the sponsor had signed the Representative Form. Accordingly, if the matter turned on the refusal of the Officer to consider the representations of the sponsor’s lawyer due to the technical omissions described, I would have set aside the decision and required it to be reconsidered by another Officer. However, I do not find that the submissions of the sponsor’s lawyer would have impacted in any manner on the Officer’s ultimate decision […]. [T]he son committed a misrepresentation in failing to identify on the background declaration that he had been refused a visa. The second issue is whether the misrepresentation was material. […] The Applicants submit that, prior to the misrepresentation being detected, there was no issue as to their admissibility based on the extensive medical, criminal, and security background checks that had already been performed in Sri Lanka. However, obtaining a security clearance in one country would not disentitle the Officer from investigating why the son was refused entry to India. As described in the GCMS notes, it was generally rare that a Sri Lankan would be refused a visa to India, especially in the timeframe of the month surrounding the end of the Civil War. I find that this gave rise to a reasonable concern that the Officer could properly act upon. […] Correct procedures entailed learning from the Indian authorities why the son was refused a visa in the circumstances where such refusals were known to be rare. […][T]he Officer’s reasons were not focused on why the visa refusal occurred, but rather the fact that CIC did not have an opportunity to examine a material fact (the son’s immigration history) and that this could have led to an error in the admissibility determination. As indicated in Goburdhun: “had [the officer] relied solely on the application which did not disclose the prior visa refusal, this could have induced an error in the administration of the IRPA as he could have erroneously issued a visa to the applicant.” [Application dismissed] COUNSEL: CLARISA WALDMAN WALDMAN & ASSOCIATES TORONTO Marriage relationship has ended but parties have not yet taken formal steps to obtain divorce-Section 23(b)(i) & “in fact” 5. WEI WEI SUO IMM-3213-14 2015 FC 81 JANUARY 21, 2015 ANNIS J.: […][T]he Applicant was entitled to establish that the relationship with his spouse had broken down “in fact” and he was denied the opportunity to demonstrate this to the Officer. […] He married Ms. Li on May 1, 1999. […] with respect to the information requested on his wife, the Applicant stated that he and Ms. Li had been formally separated since September 30, 2013. [He] indicated that there was no hope for reconciliation and that Ms. Li no longer wished to reside in Canada. Accordingly, he did not provide any of the requested documents related to Ms. Li and requested that she be removed from the application. Counsel attached an “IMM-0008” form to reflect [his] change in marital status and address changes. […] [T]here is only one issue, namely whether the Officer misdirected himself on the law in respect of an inadmissible accompanying member, and thereby, in requesting that the Applicant demonstrate that his relationship with Ms. Li had been legally severed. […] It is apparent from the ordinary meaning to be attributed to section 23(b)(i) that it was intended to provide an exemption for an inadmissible non-accompanying spouse where the relationship has broken down. This provision, which specifically refers to a spouse, is distinguishable from section 23(b)(ii), which refers to a common law partner. The distinction between these two terms is consistent throughout the Act. […] Inasmuch as a “spouse” refers to a married person, the exemption from the inadmissibility requirement for a non-accompanying spouse may be “broken down” either in law (i.e. by a divorce) or in fact (i.e. to be determined by the circumstances described by the applicant and other evidence in support). In the latter case, the focus of the evidentiary inquiry is whether the relationship that is the basis of the marriage has come to an irreconcilable end. In my view, the intention of permitting an exemption for a non-accompanying spouse when the relationship has broken down “in fact” is to respond to the situation of the Applicant, where the marriage relationship has ended, but the parties have not yet taken the formal steps to obtain a divorce. The inclusion of the words “in fact” in the section 23(b)(i) exemption contemplates the practical reality of relationship breakdowns and indicates that a certain degree of flexibility is required on the part of the Officer. The Officer misinterpreted section 23(b)(i) by limiting its application to marriage breakdowns “in law”, and in failing to consider the inclusion of the words “in fact” in the administration of the provision. In light of the evidence provided by the Applicant that he and Ms. Li had formally separated since September 30, 2013, that there was no hope for reconciliation, and that Ms. Li intended on divorcing from the Applicant and no longer wished to be included on the application or to reside in Canada, the Officer’s insistence that the Applicant provide further information on Ms. Li on the basis that it had not been


demonstrated that the relationship was legally severed, was clearly unreasonable. This approach reflects the Officer’s misapprehension of the scope of the exemption under section 23(b)(i). […][Application allowed] COUNSEL: DOV MAIEROVITZ TORONTO Marriage of convenience 6. YUN LIN IMM-4040-13 2015 FC 53 JANUARY 15, 2015 O’KEEFE J.: [She] requested permanent residence […] as a member of the family class under the Saskatchewan Immigrant Nominee Program [SINP]. […] The Applicant’s sponsor sold her house in Toronto and moved to Saskatchewan in 2009 in order to help the Applicant’s family to qualify for Saskatchewan’s immigration policy on the referral of family members. […] The Visa Officer […] was not satisfied that the Applicant’s relationship with her husband was genuine. […] Insofar as the site visit […] is concerned, the visiting CBSA Officer made the following conclusion of “confirmed fraud”: “PA did not appear familiar with her work. It is not acceptable for a chief accountant to not know the most recent payments for the company’s projects signed just the day before. She did not know how much taxes the company paid in the last year. This is something that every company accountant should know. PA’s salary slips appears to have [sic] amended for 2008-2011. Receipts did not have PA’s stamps prior to 2011. PA also knew nothing about her spouse, she could not even tell CBSA LO [Liaison Officer] where he is working or his cell phone number. Serious concerns with spousal relationship. PA is carrying another man’s picture in her wallet. As we do not have ex-spouse’s photo. Cannot confirm if picture in PA’s wallet is ex-spouse.” […] [T]he Visa Officer based his determination of a lack of genuineness in the Applicant’s marriage on the following facts: “the Applicant thinks her husband’s best friend is also his apprentice because they often talk about work; the Applicant’s husband does not remember the exact number of days the Applicant went away for vacation; and the Applicant and the Applicant’s husband do not consider what is a gift the same way.” The Visa Officer concluded the marriage was entered primarily for acquiring status in Canada and the Applicant is not considered a spouse and cannot therefore qualify under the family member category. […] I am satisfied that the Visa Officer assessed the genuineness of the Applicant’s marriage reasonably. Under the category of family relationships, section 4 of the Regulations states there is a genuineness requirement in a marriage for someone to be considered a spouse. There is no particular criterion or set of criteria to determine whether a marriage is genuine pursuant to the Regulations (Koffi). The determination is very fact specific. Here, I will give a high deference to the Visa Officer’s findings. There are a few findings of inconsistency in this case. […] In my view, I cannot reweigh the evidence. Here, the Officer’s decision is transparent, justifiable, intelligible and within the range of acceptable outcomes. Therefore, the Officer did not commit a reviewable error and his decision is reasonable. [Application dismissed] COUNSEL: PETER LULIC TORONTO For access to H&C jurisdiction, may need to proceed to both the IAD and Federal Court 7. MUKHTIAR SINGH PUNIAN IMM-5758-13 2014 FC 335 APRIL 4, 2014 HARRINGTON J.: When Mr. Punian, his wife and children immigrated to Canada from India, one daughter stayed behind. She was married at the time and had a child of her own. […] The [IAD] upheld the Visa Officer’s decision that his daughter and granddaughter did not fall within the definition of the family class. Having so found, the panel held it had no jurisdiction in law to take into account H&C considerations. This is the judicial review of the IAD’s decision, not the decision of the Visa Officer. It is most important to keep that distinction in mind. […] Having upheld the Visa Officer’s decision that Ms. Punian was not a member of the family class, the IAD declined to consider H&C considerations. […] in circumstances such as these, the IAD simply does not have jurisdiction. That is not to say that no recourse was available to challenge that part of the Visa Officer’s decision in which he held that there were insufficient H&C considerations. […][T]he recourse was by way of application for leave and judicial review to this Court. A case directly on point is […] Kobita v. Canada (Citizenship and Immigration), 2012 FC 1479. There is a difference of opinion within the Court as to the timing of an application for judicial review of a Visa Officer’s refusal to grant relief on H&C considerations. Seshaw v. M.C.I., 2013 FCJ 396 and in Hkbtenkiel v. M.C.I., 2013 FC 397 held that the legislative scheme enacted by Parliament requires that the sponsor appeal of the negative decision of the IAD be determined before someone like Ms. Punian may seek leave and judicial review. […] Counsel complains that this bifurcation of remedies is an affront to access to justice. […] However, there is no ambiguity. This is not the only statute in which Parliament, in its wisdom, has bifurcated remedies. Under the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, a challenge to a finding that an individual has violated the Act is by way of trial, while the penalty or sentencing is by way of judicial review. In other words, one must file for a judicial review of a penalty long before the Court determines whether or not the Act had actually been violated! (Tourki v. Canada (Public Safety and Emergency Preparedness), 2007 FCA 186).


The Visa Officer’s decision was rendered 31 August 2012. The reasonableness thereof with respect to H&C grounds is not before me. Although Ms. Punian is beyond the delays […], section 72(2) of IRPA allows a judge, for special reasons, to allow an extension of time, which is consistent with section 18.1(2) of the Federal Courts Act. […][Application dismissed] COUNSEL: GERALD G. GOLDSTEIN BARBEAU, EVANS & GOLDSTEIN VANCOUVER H&C-Hungary is a member country in the European Union (EU)-Roma issues 8. ZSUZSANNA GALLAI IMM-3673-13 2015 FC 52 JANUARY 15, 2015 O’KEEFE J.: […] The Applicant is a citizen of Hungary, which is a member country in the European Union (EU). […] As demonstrated in the documentary evidence “Human Rights of Roma and Travellers in Europe” and “Roma People in Europe: A Long History of Discrimination,” […] Roma migration is opposed and obstructed throughout the EU and Roma experience discrimination and ill treatment throughout Europe. […][T]he Officer acknowledged the Applicant’s EU membership allowed her to be able to “live, work, study or retire in any of the European Union member countries”. Although the Officer did not mention any of the general adverse country conditions evidence in the analysis, the Officer did correctly point out that the Applicant lived and worked for approximately seven years in Ireland. In the absence of written submissions on [her] adverse personal experience in Ireland, the Officer was not unreasonable to adopt the Applicant’s personal circumstances over the general contrary evidence. Therefore, I find the overall evidence does not contradict the Officer’s conclusion. […][Application dismissed] COUNSEL: RATHIKA VASAVITHASAN BARBRA SCHLIFER COMMEMORATIVE CLINIC TORONTO H&C-St. Lucia-arrives in Canada at age 17 to live with father-no evidence relating to her life in St. Lucia 9. ABENA MANSA MONLOUIS IMM-3472-13 2015 FC 24 JANUARY 8, 2015 O’REILLY J.: In 2012, [she] arrived in Canada and applied for permanent residence on H&C grounds when she was 17 years old. She hoped to live with her father who is a permanent resident of Canada. An Immigration Officer reviewed [her] application and concluded that she had had little opportunity to become established in Canada, having lived here for less than a year. Further, she would soon reach the age of 18 and would no longer be considered a minor. Finally, [she] had provided insufficient evidence relating to her relationship with her father. Accordingly, the Officer found that [she] had not shown she would experience unusual, undeserved or disproportionate hardship if she had to apply for permanent residence from outside Canada. Ms. Monlouis argues that the Officer’s decision was unreasonable as it failed to take adequate account of her status as a minor. She was enrolled in school in Canada and wished to be raised and reunited with her father, a natural desire for someone in her circumstances. […] The sole issue is whether the Officer’s decision was unreasonable. […] The Officer was clearly aware that Ms. Monlouis was 17 years old when she applied for her H&C. Moreover, there was simply no evidence before the Officer that pointed to any particular hardship that Ms. Monlouis would endure if she had to apply for permanent residence from St. Lucia. There was no evidence relating to her life in St. Lucia. She did not mention any family there, or describe where or with whom she had been living. She states that she would like to foster a relationship with her father, but there is no evidence emanating from him on the subject, other than a completed sponsorship form. She attends school in Canada and has apparently begun to make friends here but, again, there was no evidence before the Officer relating to any significant attachments she has made. Based on the paucity of evidence before the Officer, I cannot conclude that his decision was unreasonable. [Application dismissed] COUNSEL: SINA OGUNLEYE TORONTO Focus should be on hardship to individual & once established, hardship need not be greater than that faced by anyone else 10. BOULOS MAROUKEL ET. AL. IMM-3781-13 2015 FC 83 JANUARY 22, 2015 BOSWELL J.: [They] are a married couple in their sixties who arrived in Canada from Syria on March 24, 2010. After their visitor visas expired […] they sought refugee protection on September 22, 2010. […][The IRB] rejected their applications in late May 2012 […]. In their H&C application, [they] claimed a number of H&C grounds, including the civil unrest in Syria, an inability to obtain required medication in Syria, and their desire to remain with their 34 year old daughter […] who is a Canadian citizen and who has children of her own. […] The Officer concluded that the situation in Syria “is not comfortable for anyone who lives there and in many cases, it is dangerous”. […][T]he Officer unreasonably ignored the country conditions in Syria at the time. One can easily take judicial notice of the fact that the civil unrest in Syria continues to this day and was occurring when the Officer rejected the H&C application. It is not for this Court to determine whether such unrest has worsened or whether conditions in Syria have improved since that time. The fact of the matter is that the Applicants, since such unrest began in late 2011, have faced and for the foreseeable future will face a prolonged inability to return to Syria because of the adverse country conditions there, which are clearly circumstances beyond their control. […][I]t also was unreasonable for the Officer, on the one hand, to conclude that country conditions in Syria are “dangerous” and then, on the other, to ignore the direct negative impact such conditions would have upon the Applicants since it “is not comfortable for anyone who lives there.” […][T]he Officer in this case found that the adverse country conditions directly affect everyone in Syria, and that is enough. The focus should be upon the hardship to the individual and, once established, that hardship need not be greater than that faced by anyone else in that country. This applies especially where the expected


hardship is such that the CBSA’s present policy is not to remove any Syrian national back to that country. […][Application allowed] COUNSEL: TERRY S. GUERRIERO LONDON, ONTARIO H&C-evidence and BIOC 11. ANTHONIA ONOWU ET. AL. IMM-786-14 2015 FC 64 JANUARY 16, 2015 GAGNÉ J.: This application is filed by […] a 51 year-old male, citizen of Nigeria, and his dependants: a 41 year-old female Nigerian spouse, a 12 year-old son born in Nigeria, together with an 11 year-old son and a 5 year-old daughter born in Hong Kong […][and] a 2 year-old Canadian-born son […]. In February 2010, [they] arrived in Canada from Hong Kong […][and] were denied refugee status in September 2012 […] as they had permanent resident status in Hong Kong. […] In March 2013, [they] filed a second H&C application […]. [W]hen the analysis is considered as a whole, the Officer considered the Applicants’ establishment in Canada in a way that is defensible and acceptable on the facts before her as presented by the Applicants’ submissions and supporting documentation. Her language of reference, or various modes of expression and comparison, in saying that the Applicants’ establishment was not exceptional for the purposes of an H&C application does not, in and of itself, create a wrong standard. The Officer reasoned by analogy […] - that she did not see the hardship that would result from the Applicants’ establishment in Canada to be beyond asking one to “leav[e] behind friends, perhaps family, employment or a residence”. And it was fully reasonable for her to adopt such an approach. […] Did the Officer apply the wrong test to assess the BIOC? […] The question is not whether the decision-maker chose and applied the right test but rather whether he or she chose and applied a reasonable approach. In order for an approach to be reasonable, the Officer’s analysis must demonstrate that he or she is “alert, alive and sensitive” to the BIOC. […][T]he Officer’s capacity to well identify and define the BIOC is subservient to the onus which lies on the Applicants, with a caveat. […] The intensity of the BIOC analysis will depend on the length and focus of the Applicant’s submissions and the evidence adduced, but the latter is not absolute. […] I find that the substance of the Applicants’ submissions are “oblique, cursory and obscure” for the purposes of requiring the Officer to inquire further in the BIOC analysis, absent adequate evidence. […] First, the Applicants’ submission of the negative impact resulting from educational interruption is abstract and includes no discussion about the ability to continue education in Nigeria. Second, in relation to separation from the Canadian child, contrary to the Applicants’ submission, the child was mentioned, and no reference to illness is made, only the following appears in the application form: “My son (Ikenna) is a Canadian citizen and he looks up to me. I have endeavoured to be the best father for him. Since he was born, I have been there for him and I have ensured that he receives the right care and guidance to make him not only a productive part of Canada but also a God fearing person.” […] I do not see any specific reasons submitted to the Officer which required her to engage in a fuller analysis; no reasons were given particularly explaining why the Canadian child could not be cared for, in his best interests, in Nigeria. […][T]he Applicants did not give the Officer a real opportunity, through their submissions or supporting documentation to appreciate the medical condition Dave suffers, let alone the impact care in Nigeria would have on him. The principal applicant does not mention his son’s illness in his application form, and when asked if him or his family members listed in the application for permanent residence “had any serious disease or physical or mental disorder” he did not check “yes”. The following is what appears in the submission made by his counsel […]: “I also ask the reviewing officer to consider the medical condition for Dave Onowu. I understand that he has sickle cell amenia [sic] and that he is unable to get in Nigeria the kind of medical treatment that he has been receiving in Canada.” In conjunction an appointment slip from the SickKids hospital listing various tests to be done by the sick child Dave, was submitted, and an eye-doctor appointment notice. Nowhere is there a diagnosis or explanation of the illness or treatment, no details are given such that the Officer could have inquired further in the BIOC analysis. An Officer cannot be expected to be well-versed in medical knowledge. […][T]he Officer was “alert, alive and sensitive” to the BIOC given the quality of the submissions raised and the amount of evidence before her; the approach employed was reasonable. Did the Officer err in providing inadequate reasons? […] Respectfully, I cannot agree with the Applicants, they have isolated small sections in the reasons to assert lack of justification, transparency and intelligibility - but as a whole, the reasons are adequate: they reveal why the application was unsuccessful, somewhat the process by which the Officer arrived at her conclusions (she stated the facts, summarized the submissions, the state of the law), a basis for this Court to assess possible grounds for judicial review, and how she found the supporting documentation as insufficient. The reasoning process is not flawless, particularly the balancing of positive and negative factors, but this isn’t a requirement - among other things, all that is required is that the reasons show the decision-maker followed a reasoning process that merely sets out and reflects consideration of the main relevant factors. On a standard of reasonableness, the Officer’s reasoning


process falls within the acceptable range because it clearly shows explicit and thoughtful consideration of the main relevant factors. With sympathy, I can see how the Officer’s choice of expressing the benchmark of establishment (i.e. concepts such as “deep seated and rooted”) under the Act is not ideal nor meaningful in the eyes of the Applicants who have found their hardworking activities and fruits of their labour canvassed in all but a couple of sentences. But this Court has held that “when notes are the method used to provide reasons, the threshold for adequacy of reasons is fairly low”; the law is clear that administrative officers are not required to provide detailed reasons for their decisions in a way similar to that expected of adjudicative administrative tribunals - such a requirement would be inappropriate. […] As regards the volumes of supporting documentation submitted by an applicant, “[d]ecision-makers are not bound to explain why they did not accept every item before them. Much depends on the significance of that evidence when it is considered in light of the other material on which the decision was based” (Ozdemir, at para 9). […] The reasons show that she considered what was at stake for the family - given whatever supporting evidence and submissions presented. The reasons may not canvass hardship nor risk to the extent the Applicants would have hoped, but that is because most of the documentation submitted is oriented towards showing self-sufficiency, adaptability, community outreach and educational performance in Canada - not the probability of hardship nor lack of medical treatment in Nigeria. [Application dismissed] COUNSEL: STELLA IRIAH ANAELE TORONTO H&C-Turkey-living without status for 10 years in USA-refugee protection in Canada-BIOC 12. UGUR AKYOL ET. AL. IMM-5507-13 2014 FC 1252 DECEMBER 23, 2014 RENNIE J.: […] The Applicants entered Canada in March, 2010 from the United States where they had been living without status for 10 years after the extension of their visitor’s visa expired. Upon arrival in Canada [they] claimed refugee protection on the grounds that they were subject to risks associated with an ongoing family feud in Turkey. […] In terms of the best interests of the children, the Applicants stated that they had no support systems in place in Turkey and would likely be targeted by their family members. The eldest child, Taskin, fears the mandatory military service employed in Turkey. Additionally, none of the three children speak Turkish fluently, and none of them are able to read or write in Turkish. As a result of the children’s limited Turkish language skills, they may lose several years of schooling in order to become fluent. The only English education option would be a private school which costs approximately $15,000-$30,000 a year per student, and this is financially unattainable given Mr. Akyol’s salary. Falling behind in school is especially problematic in the case of Irem, who has significant learning disabilities. Finally, only one of the children has ever been to Turkey, and he left at the age of two. The children are not familiar with Turkish culture or environment. […] In this case, the Officer incorrectly, in substance and in form, elevated the test for the best interests of the child. The Officer used the specific language of “unusual and undeserved or disproportionate hardship” on several occasions. In reference to the eldest child’s stated fear of military service, the Officer indicated that she was not satisfied that “the requirement to comply with military service is a hardship that is unusual and undeserved or disproportionate”. Second, in reference to the children’s family ties in Canada the Officer stated that she was not satisfied that sufficient evidence had been provided to “show that the children’s level of dependence on family members in Canada is to the extent that their separation would result in unusual and undeserved or disproportionate hardship”. […] As Justice Russel Zinn explained in Sebbe v. M.C.I., 2012 FC 813 […] the Officer is “mandated to ask: What is in this child’s best interest?” To be faithful to Baker, it is only once the best interests of each child affected by the H&C application are identified and articulated can the Officer then weigh this against the other positive and negative elements in the H&C application. Further, the decision-maker should consider children’s best interests as an important factor in their analysis. As Justice James O’Reilly wrote in Lewis v. Canada (Citizenship and Immigration), 2008 FC 790, the best interests of the child must “be given substantial weight in H&C applications”. That does not mean that the children’s best interests must outweigh other considerations; however, practical meaning must be given to Article 3(1) of the United Nations Convention on the Rights of the Child 20 November 1989, Can TS 1992 No 3, which states: In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. The Officer in this case failed to identify what exactly would be in the best interests of each of the applicant children. Instead, the Officer stated that she “carefully considered all of the information” regarding the children. This brief reference to the children’s interests does not, in any way, actually identify what those interests are. […] The evidence before the Officer demonstrated that Irem’s learning challenges were significant. This was not a case where the evidence of learning disabilities consisted of a statement of a family physician or school teacher. Here, Irem’s abilities were tested across a range of functions and skills by professionals using recognized methods and assessed against established


norms. Given their conclusion as to the nature and extent of the disability the Officer’s reasoning did not meet the Baker standard. The interests of the child, in the unique circumstances of this case, could not be disposed of by a mere reference in a single country condition report to an obligation on the receiving country to accommodate disabled students. This is not to negate the empirical value of country condition reports. They are very often the best and most reliable source of information available. Here, however, the Baker standard was not satisfied. Finally, the Officer stated that she was “not satisfied that leaving Canada to return to Turkey in the company of their parents would have a significant negative impact on the best interests of these three children”. Requiring evidence of severe harm or hardship to a child is incorrect in the analysis. The question is not: “is the child suffering enough that his ‘best interests’ are not being met?” Rather, the question is “what is in the child’s best interests?” Williams v M.C.I., 2012 FC 166 at para 64. It is the child that must, first and foremost, be considered when conducting a BIOC analysis, rather than whether the child could adapt to another country, or accompany parents: Bautista v. M.C.I., 2014 FC 1008. [Application allowed] COUNSEL: CLARISA WALDMAN WALDMAN & ASSOCIATES TORONTO PRRA-new evidence and IFA 13. RAUHA NDESHIPAN SHILONGO IMM-6168-13 2015 FC 86 JANUARY 22, 2015 BOSWELL J.: The RPD had assessed and determined that there was an IFA […] in Windhoek in view of the fact that she came from a traditional community and feared forced marriage, physical abuse, rape and death at the hands of the uncle to whom she had been promised, her father, and their agents. This fear was present while she lived in the village of Onambone until she fled Namibia with her boyfriend in December, 2003. Neither the RPD nor the Officer here questioned [her] credibility or the fact she has been subjected to physical abuse, rape and death threats from her uncle with the approval and assistance of her father. […] [T[he Officer found that the new evidence did not rebut the finding that the Applicant had a viable IFA in Windhoek. […] Part of that finding was based on the Officer’s view that the sworn statements could not be trusted because they were from [her] family members. […][T]hat was unreasonable. Although it is often better for such evidence to be corroborated, it was still sworn testimony, and it is difficult to know what other evidence could reasonably be expected in a situation like this. After all, a threat such as that alleged would never have been made to someone completely uninterested in the Applicant’s life, and if the sworn statements are true then the Applicant’s mother and brother were the only witnesses; there could be no evidence of the incident of which they are not the ultimate source. As Mr. Justice Russel Zinn observed in a similar situation in Rendon Ochoa v. Canada (Citizenship and Immigration), 2010 FC 1105 they were “uniquely placed to provide evidence and are indeed the only people who could properly provide the evidence that is sworn to in their statements.” This evidence was also important. Before the RPD, the only threat that the Applicant had ever faced was in the village of Onambone. Now that threat had materialized in the very place that the RPD found was a viable IFA for [her], and it was unreasonable to find that would not likely have changed the RPD’s analysis. […][I]t was incumbent upon the Officer to consider [her] personal risk profile in light of all the evidence, and not simply rely upon generalized country condition evidence. The Officer should have assessed whether there was any serious possibility that [she] would be persecuted in the proposed IFA and, also, whether the conditions in the proposed IFA were such that, in all the circumstances, it would be reasonable for [her] to seek refuge there. […][T]he Officer did not reasonably account for the fact that the Applicant’s agent of persecution had made his way to the alleged IFA. Moreover, the Officer did not address whether it would be reasonable for the Applicant to seek refuge in the IFA in view of the fact that her uncle had recently been looking for her there. […] [Application allowed] COUNSEL: DOV MAIEROVITZ TORONTO Not adequately focus on gender & domestic abuse issues, or deal with evidence Roma women do not receive protection 14. TIMEA MARIA BALOGH IMM-4870-13 2015 FC 76 JANUARY 20, 2015 RUSSELL J.: […] The Officer lists a number of agencies in Hungary and concludes that they will provide state protection for the Applicant but fails to actually address how these agencies will protect the Applicant. […] The Officer appears to think that this fundamental problem for Roma women can be overcome if the Applicant seeks assistance from “a higher level authority or from the Independent Police Complaints Board” or the “Equal Treatment Authority Ombudsman and deputies” or a “24-hour hotline” and “shelters,” but the Officer’s view that these alternative avenues of recourse “can provide adequate protection to someone in the Applicant’s position” is entirely speculative and does not address the specifics of this case. The onus is upon the Applicant to refute the presumption of adequate state protection but, in deciding whether or not the Applicant has done this, the Decision does not adequately focus on the gender and domestic abuse issues that are the basis of the claim, or deal with the evidence that Roma women do not receive protection. [Application allowed] COUNSEL: GEORGINA MURPHY OTIS & KORMAN TORONTO


PRRA-The “newness” requirement 15. OLUWAFUNMILAYO ADESHINA IMM-5549-13 2015 FC 15 JANUARY 7, 2015 ZINN J.: […] Raza v M.C.I., 2007 FCA 385 interpreted the “newness” requirement […]: “Newness: Is the evidence new in the sense that it is capable of: (a) proving the current state of affairs in the country of removal or an event that occurred or a circumstance that arose after the hearing in the RPD, or (b) proving a fact that was unknown to the refugee claimant at the time of the RPD hearing, or (c) contradicting a finding of fact by the RPD (including a credibility finding)? If not, the evidence need not be considered.” The test for “newness” described above is disjunctive, given the multiple use of the word “or”. Accordingly, documents produced by an applicant are “new” if they are capable of contradicting a finding of fact by the RPD (including credibility findings). The Officer erred in interpreting the case law to mean that documents are new only if they can be used to prove a new country condition or changes in the Applicant’s circumstances. On this basis alone, the decision must be set aside. The failure of the Officer to address the identity documents (birth and baptismal certificates) presented is another reason for setting the decision aside. This evidence is clearly material. It may be found not to be credible, and it may be that an Officer would reject it on other grounds; however, the evidence cannot simply be ignored. Similarly, the letters and emails submitted by the Applicant that speak to the credibility of her story should also have been addressed. They cannot be dismissed only because they do not speak to a change in the situation of the applicant since the RPD decision. Lastly, the Officer did not properly consider the psychological evidence. It was dismissed for being based on facts that he considered not credible; however, the Applicant submitted the evidence of her psychological condition at the time of the RPD hearing as relevant to its credibility findings. Such evidence was allowed as new in Abbasova v M.C.I., 2011 FC 43. It is deeply troubling to the court, and it is unreasonable, and possibly contrary to law, that the Applicant is to be removed to Nigeria without there being any real assessment of her risk. […] It may be that this Applicant is not at risk; however, that has never been determined. [Application allowed] COUNSEL: NIR GEPNER FLEMINGDON COMMUNITY LEGAL SERVICES DON MILLS, ONTARIO Was a letter sent? 16. SUKHBIR SINGH MANGAT IMM-10242-12 2014 FC 1201 DECEMBER 11, 2014 ROY J.: [He] has been in Canada since April 1992. During all of those years, his immigration status in this country has been at best precarious. […] The decision […]: “[o]n September 20, 1999 the Officer determined that he was inadmissible to Canada pursuant to s. 19(1)(f)(iii)(b) due to his membership in the Khalistan Liberation Force.” The record does not enlighten as to that decision, nor as to why there is now a new determination. Indeed, as pointed out, it remains very much unclear what happened, if anything, in the intervening period, between September 1999 and September 2012. Furthermore, Counsel for the Respondent did not try to explain what the earlier decision was about and how the decision of September 2012 would have been different. Strangely, it was as if nothing had occurred before September 2012. The decision […] also states that a letter was sent to the applicant on March 20, 2012, inviting him to respond to concerns about his admissibility. Mr. Mangat, in his affidavit […] declares unequivocally that he received no such letter […]. [He] was not cross-examined on his affidavit in spite of the fact that this Court’s Order […] provided specifically for a period of time to do so. […] Counsel for the Respondent confirmed at the hearing of this case that the March 20, 2014 letter that would have invited Mr. Mangat to offer submissions cannot be found. […] The record is clear that no submissions were made in anticipation of the September 7, 2012 decision; the Applicant swears he did not receive a notice and none was found either in the Certified Tribunal Record or, as confirmed by Counsel for the Respondent, in the Department’s record. The balance of probabilities favours the Applicant in view of the lack of explanation. It is trite law that the applicant had a right to be heard: audi alteram partem. […][Application allowed] COUNSEL: DAVID ORMAN TORONTO Breached duty of procedural fairness by making decision prior to deadline, & failing to reconsider in light of submissions 17. ÉTIENNE AVOUAMPO IMM-5200-13 2014 FC 1239 DECEMBER 18, 2014 DINER J.: […] The Officer had an obligation to make his decision only after the date on which the Applicant had been given as a deadline to make submissions. The Officer thereby breached his duty of procedural fairness by making his decision prior to that date, and by failing to reconsider his decision in light of the submissions made by the Applicant on the deadline date, two days later, in the weeks after those submissions were received and before the Decision was communicated. […][Application allowed] COUNSEL: AZADEH TAMJEEDI TORONTO CBSA Discretion under s. 104(1)(b) of IRPA when claimant is inadmissible for security reasons under s. 34(1)(f) 18. ABDLWAHID HAQI IMM-371-14 2014 FC 1246 DECEMBER 19, 2014 MACTAVISH J.: […] Under paragraph 46.01(1)(e) of the former Immigration Act, R.S.C. 1985, c.I-2, a refugee claimant who had been determined to be inadmissible on security grounds was not automatically ineligible for consideration by the


predecessor to the RPD. Such claims were ineligible for hearing only if the Minister issued an opinion that it would be contrary to the national interest to have the claim determined. In 2002, IRPA replaced the Immigration Act. In enacting subsection 104(1) of IRPA, Parliament expressly declined to include a provision comparable to paragraph 46.01(1)(e) of the old Act. […] This change suggests that Parliament’s intention was to have ineligibility flow automatically from inadmissibility on security grounds, reflecting the increased prioritization of security concerns in IRPA: Medovarski v. M.C.I., 2005 SCC 51 at para. 10. […] Having concluded that Mr. Haqi has not established good reason to adopt an interpretation of paragraph 104(1)(b) of IRPA different from that adopted by Justice de Montigny in Tjieuza, it follows that […][Application dismissed]. CERTIFIED: “After a RPD proceeding has been suspended under paragraph 103(1)(a) of the IRPA pending the outcome of an ID hearing into a refugee claimant’s admissibility, if the ID determines that the claimant is inadmissible for security reasons under section 34(1)(f) of IRPA, does a CBSA Officer have any discretion under subsection 104(1)(b) of IRPA to not determine the claim’s eligibility and to not notify the RPD of the Officer’s decision on eligibility?” COUNSEL: PETER EDELMANN EDELMANN & CO. LAW OFFICES VANCOUVER Stay of removal-civil litigation regarding injury during detention 19. EVGENI ELIASH IMM-7874-14 2014 FC 1162 DECEMBER 3, 2014 ROY J.: […][He] is a citizen of Israel and was born in the Ukraine. He does not want to return to either of these countries. […] He was found in possession of a forged Canadian passport, an offence for which he was charged and convicted. […][He] has now launched a lawsuit, on December 2, 2014, claiming that he has suffered an injury, while detained, for which he is seeking compensation. […] As Stratas J.A. […] ruled in Gateway City Church v. Canada (Minister of National Revenue - M.N.R.), 2013 FCA 126: “General assertions cannot establish irreparable harm. They essentially prove nothing: It is all too easy for those seeking a stay in a case like this to enumerate problems, call them serious, and then, when describing the harm that might result, to use broad, expressive terms that essentially just assert - not demonstrate to the Court's satisfaction - that the harm is irreparable. (Stoney First Nation v. Shotclose, 2011 FCA 232 at paragraph 48.) Accordingly, "[a]ssumptions, speculations, hypotheticals and arguable assertions, unsupported by evidence, carry no weight": Glooscap Heritage Society v. Minister of National Revenue, 2012 FCA 255 at paragraph 31. The same has been found repeatedly by this Court in the immigration context. Merely stating fears and risks will not satisfy the test for irreparable harm. As it has been found “there must be evidence at a convincing level of particularity that demonstrates a real probability that unavoidable irreparable harm will result unless a stay is granted” (Glooscap, at para. 31).” Here, the case for the Applicant suffers from that very deficiency. […] In the case of a PRRA application being challenged on judicial review, there does not exist a statutory stay; the mootness of a judicial review application, if it were retained as a reason to issue a stay, would turn a judicial review application into an automatic stay, contrary to the intent of Parliament which has provided for stays with respect to certain judicial review applications. As for the lawsuit launched on December 2, 2014, it is in no way a bar to the removal of the Applicant. As is well known lawsuits are pursued by non-residents on a daily basis. This does not constitute irreparable harm. […][Motion for stay dismissed] COUNSEL: JOEL ETIENNE TORONTO

III. REFUGEE ISSUES Repeated refusals to join Mara 18 may have put him at risk to subsequent attacks, thus outside scope of generalized risk 1. CRISTHIAN JOSUE ARTEAGA BANEGAS IMM-5322-14 2015 FC 45 JANUARY 13, 2015 SHORE J.: […][T]he RPD failed to properly consider the nature of the risk faced by the Applicant by summarily dismissing the attacks by the Mara 18 as a result of widespread criminal activity in Honduras, without regard to [his] individual circumstances. [He] testified that the Mara 18 can easily identify him as a resistor to recruitment based on the visible scars on his body resulting from previous attacks. He also testified that he was raised by a single mother. [He] testified that he continuously has been targeted for gang recruitment by the Mara 18 since the age of twelve, and that his refusals to join the gang are perceived by his persecutors as an expression of opposition or anti-gang sentiments. [He] further submitted objective evidence demonstrating that youth, gender and social status are major factors for recruitment by the Mara 18 in Honduras. Moreover, the Applicant was deemed credible by the RPD. In its finding that the Applicant belongs to a general demographic of potential recruits by the Mara 18, the RPD failed to engage in an adequate individualized assessment of risk. The RPD failed to consider the relevant factors of age, gender, visible scars resulting from previous attacks, and the possibility of retribution by gang-members cumulatively. The RPD failed to consider how the Applicant’s repeated refusals to join the Mara 18 and resulting scars may have put him at risk to subsequent attacks, thus placing him outside the scope of a generalized risk. The commonality of crime in Honduras does not lend itself automatically to a dismissal of a personalized risk; each determination must draw upon an Applicant’s particular circumstances. […][Application allowed] COUNSEL: PEGGY LEE ELGIN, CANNON & ASSOCIATES VANCOUVER Whether the violence in Karachi is perpetrated by Taliban should have been considered in second prong of test for IFA 2. MUHAMMAD IDREES IMM-4136-13 2014 FC 1194 DECEMBER 10, 2014 DINER J.: […][W]hether the violence in Karachi is perpetrated by the Taliban is relevant only to the first prong of the test


as it speaks to the presence and activity of the Taliban in the city, and so the violence in Karachi – although it was discarded in the first prong of the test – should have been considered in the second prong. To determine whether it is reasonable for the Applicant to seek refuge in Karachi requires consideration of the broader circumstances beyond the persecution that caused the Applicant to flee his original location. […][T]he Member did not consider the ethnic violence against the Pashtun in that city. Thus, in finding that it was reasonable for the Applicant – of Pashtun ethnicity – to seek refuge in Karachi, she did not consider his safety in staying there, although this was clearly raised in the evidence before her and in Counsel’s submissions. […] In the absence of a finding on whether it was reasonable under the second prong of the test for the Applicant to seek refuge in Karachi despite the evidence of ethnic violence there, it was unreasonable for the Board Member to find that Karachi was a viable IFA for the Applicant. […] [Application allowed] COUNSEL: AADIL MANGALJI LONG MANGALJI LLP TORONTO RPD imports a requirement of “good faith” in making a sur place refugee claim 3. JIN YUAN YE IMM-5518-13 2015 FC 21 JANUARY 8, 2015 ZINN J.: […][T]he RPD imports a requirement of “good faith” in making a sur place refugee claim based on two sources: a decision from the New Zealand Refugee Status Appeals Authority (Refugee Appeal No. 2254/94, Sept 21, 1994) and James Hathaway’s book the Law of Refugee Status (Toronto: Buttersworths, 1991). Justice Gauthier […] held in Ghasemian v. M.C.I., 2003 FC 1266 at paras 29 - 31, that such a “good faith” requirement is not required. […] It is impossible to ascertain what impact the error of imposing a good faith requirement on a sur place claim had on the RPD’s assessment […]. [Application allowed] COUNSEL: JEFFREY L. GOLDMAN LEWIS & ASSOCIATES TORONTO Hungary-victims of domestic abuse-did not at least attempt to seek protection 4. VIKTORIA CSANYANE NOVAK IMM-1280-14 2015 FC 9 JANUARY 6, 2015 LEBLANC J.: […][T]he RPD’s misunderstanding or misapplication of the “adequate state protection” test is not necessarily fatal in cases where, as here, the RPD also reasonably concluded on other grounds that the Applicants had failed to rebut the presumption of adequate state protection with “clear and convincing evidence of the state’s inability to protect [them].” […][T]he RPD noted the efforts and actions undertaken by Hungary to address the situation of victims of domestic abuse in that country which would have made it reasonable for Ms. Novak, who is of Hungarian ethnicity, to at least attempt to seek protection. The evidence before the RPD is that she did not do so. It was therefore reasonably open to the RPD […] to conclude that the evidence on the ineffectiveness of state protection for victims of domestic violence in Hungary was not convincing and that Ms. Novak had failed to rebut the presumption of state protection by making no attempts to seek that protection and by failing to provide a reasonable explanation as to why this was not done. […][Application dismissed] COUNSEL: ADELA CROSSLEY LAW OFFICE OF ADELA CROSSLEY TORONTO No evidence-Low profile teacher in Colombia does not have profile of someone falling into a group that may be at risk 5. SANDRA JOHANA CASTANEDA OSORIO ET. AL. IMM-3935-13 2015 FC 20 JANUARY 8, 2015 LEBLANC J.: […][A]s the RPD reasonably concluded that Ms. Osorio had not taken all objectively reasonable steps to avail herself of state protection, the error in the enunciation of the state protection test, assuming there was one, would not be enough for this Court to overturn its decision. […] State protection only needs to be adequate. In this regard, the situation is far from perfect in Colombia, a country which has been struggling over the last 40 years with violence and social and political instability due to internal conflicts with guerrilla and paramilitary groups. Nevertheless, the evidence that was before the RPD in this case shows that both the army and the police have, in recent years, managed to conduct successful operations against the FARC. Thus, it was reasonably open to the RPD to find that Ms. Osorio had not established it was objectively unreasonable for her to seek Colombia’s protection. This result is consistent with a number of recent cases where RPD findings that adequate state protection for those who were threatened by the FARC is available in Colombia were confirmed by this Court as being reasonable. […] There is no evidence on record indicating that Ms. Osorio, a rather low profile teacher in Colombia, or her husband for that matter, has the profile of someone falling into a group that may be at risk in Columbia at the hands of the FARC if she were to return to that country. [Application dismissed] COUNSEL: DOUGLAS LEHRER VANDERVENNEN LEHRER TORONTO Blood feud 6. SOKOL KAPLLAJ IMM-1353-13 2015 FC 23 JANUARY 8, 2015 O’REILLY J.: […] Basis for the blood feud: The Board correctly identified the origin of the blood feud. However, it did not consider the fact that the feud escalated thereafter based on reciprocal attacks by the warring families. From that point on, the original basis for the feud became largely irrelevant. […] Medical evidence: The Board rejected this evidence based on the implausibility of Mr. Kapllaj’s being shot in the same place on the same leg twice. However, the medical reports describe the two wounds differently. Before rejecting their authenticity, the Board should have considered their actual contents. Family influence: There was evidence before the Board that the Cekaj family was indeed influential. The Board did not cite this evidence when it concluded that Mr. Kapllaj had failed to present any evidence to support this aspect of his claim. State


protection: Evidence before the Board showed that police are unable to protect persons who, like Mr. Kapllaj, are targeted as part of a blood feud. Again, the Board should have considered this evidence before concluding that Mr. Kapllaj had failed to rebut the presumption of state protection. Conclusion and Disposition: Looking at the evidence as a whole, I find that the Board’s conclusion is not defensible based on the facts and the law. It was unreasonable. [Application allowed] COUNSEL: JEFFREY L. GOLDMAN TORONTO Board thought the Arabic language was the language in which the kit was written 7. FIRAS ZUREGAT IMM-4436-13 2014 FC 353 APRIL 10, 2014 SIMPSON J.: This case concerns the […] decision […] refusing to reopen the Applicant’s refugee claim. He had failed to file a Basis of Claim form by April 29, 2013 and he did not appear at a hearing on May 3, 2013 to explain his failure to file. His refugee claim was therefore declared abandoned […] May 3, 2013 [the Earlier Decision]. In its Earlier Decision, the Board said “The Basis of Claim form kit was provided to him in Arabic which is the language he speaks.” This passage helps explain a comment in the Decision under review which reads “At the time the applicant claimed for refugee protection, he was provided a Basis of Claim kit with instructions in Arabic language.” Counsel for the Respondent suggests that this statement means that, although the kit was in English, the Applicant received instructions through an Arabic interpreter. However, the Earlier Decision makes it clear that the Board thought the Arabic language was the language in which the kit was written. This error caused the Board to reject the Applicant’s explanation that he failed to file on time or appear because he didn’t understand English. Accordingly, the Decision on its face discloses a failure of natural justice in that the Board relied on the existence of a Basis of Claim Form in Arabic which does not exist. […][T]he Respondent is directed to process the Applicant’s refugee claim based on the Basis of Claim Form he filed on May 8, 2013. [Application allowed] COUNSEL: MARVIN MOSES MARVIN MOSES LAW OFFICE TORONTO Credibility-errors in respect of a critical piece of evidence 8. RUSLAN ISANGULOV IMM-4111-13 2014 FC 1197 DECEMBER 12, 2014 RENNIE J.: […] He immediately sought refugee protection, claiming that a neo-fascist group called Russian National Unity had been persecuting him because he is a member of the Tatar ethnic minority and his father is a human rights activist. Most particularly, he alleged before the Board that: a. Neo-fascists have twice tried to kill his father for his human rights work, and they have targeted his family. On August 12, 2011, men connected to a well-known neo-fascist leader tried to drug and abduct the applicant in order to put pressure on his father. b. On December 10, 2011, neo-fascists staked out his apartment. The Applicant later witnessed two of those neo-fascists flee from the scene of a stabbing. While assisting the victim, he was struck from behind and required surgery for life-threatening wounds. His cousin, whom he lived with, was also assaulted for trying to help the victim. The investigating police officer persuaded the Applicant to recant and called his assailants “patriots of the Russian Federation”. c. On December 18, 2012, neo-fascists murdered his cousin, mistakenly believing that they were killing the Applicant. The police did not seriously investigate. […] The Board doubted that the Applicant had the required subjective fear: The Applicant vacationed in Europe for 9 days in September, 2012, but did not ask for refugee protection; and even after allegedly experiencing an attempted abduction and assault by men who knew where he lived, he stayed at the same address until December, 2012. Further, the Applicant’s oral account of the assault in December, 2011 differed from that in his narrative, and the Board did not accept his excuse that he was nervous. The Board therefore decided that the Applicant was not credible. […] The Board also gave little weight to medical documents indicating that the applicant suffered a “massive tram [sic] to the head”, since they did not identify the cause of the injury. […] The Applicant challenges the Board’s credibility findings. […][T]hey are not immune from review, and intervention may be justified where the Board misapprehends the evidence. There are, in this case, errors in respect of a critical piece of evidence which, […] renders the decision unreasonable. The Board found the Applicant not credible because he did not report the cause of his injuries upon admission to the hospital. The medical report, in fact, explains the cause of the injury. The report notes that the Applicant was admitted to hospital “…after suffering bodily injuries and brain haematoma as a consequence of being hit by a hard object to the right part of the base of the skull during a fight”. […] In the usual course, an unreasonable finding in respect of one element of the evidence would not render a decision unreasonable. The Board rejected the claim on the basis that “these events did not occur”. Here, given the importance of the event in the Applicant’s narrative, and the repercussions of the finding that this event did not occur on the Board’s assessment of the balance of his evidence, the decision cannot be sustained. [Application allowed] COUNSEL: KIRK COOPER RODNEY L. H. WOOLF TORONTO 16-year-old boy able to leave country freely in 2001-Failed asylum seekers are more likely to be associated with LTTE 9. ARUN PRASATH MUTHUTHEVAR IMM-3979-13 2015 FC 1 JANUARY 6, 2015 O’REILLY J.: […][T]he Board was entitled to take note of the fact that Mr. Muthuthevar had no problems leaving Sri Lanka in 2001. Authorities probably did not regard him as being associated with the LTTE at that time. However, […] the Board had to go on to consider whether he would now be suspected of having LTTE ties. He was a 16-year-old boy in 2001; he is now a man in his late 20s. He has spent a long time in Canada, a country regarded by some as harbouring LTTE


activities. His father was granted refugee status in Canada based on his fear of persecution in Sri Lanka after having been accused of being an LTTE member. […] [T]he Board should have considered whether these additional factors, which obviously arose after […] departure from Sri Lanka, might cause authorities to regard him differently than they did in 2001. Some recent documentary evidence, not considered by the Board, suggests that failed asylum seekers are more likely to be associated with the LTTE and arrested on their return to Sri Lanka. The evidence also shows that detainees are more likely to be mistreated than they were a few years ago. The Board should have considered this evidence before discounting the risk to Mr. Muthuthevar on the sole basis that he was able to leave the country freely in 2001. […][Application allowed] COUNSEL: MEGHAN WILSON JACKMAN, NAZAMI & ASSOCIATES TORONTO If the more recent Report was material to the claim or could have affected the result, then application must be allowed 10. OMER CENGIZ DEMIR ET. AL. IMM-5466-13 2014 FC 1218 DECEMBER 18, 2014 ZINN J.: […] Counsel for the Minister correctly acknowledged that if upon review of the two U.S. reports, the Court was persuaded that the more recent 2012 Report was material to the claim or could have affected the result, then this application must be allowed and the refugee claim redetermined. I have reached that conclusion. The 2012 Report is a substantial rewrite of the previous report. Substantial portions that support the finding of the Member, including that which was expressly relied on by the UK Guideline have been deleted from the earlier report […]. [T]hese changes to the treatment of Alevis is also reflected in the 2013 Country Reports on Human Rights Practices and the U.K.’s 2013 Operational Guidance Note for Turkey. This Court is of the view that these documents are relevant and could impact the determination previously made. Accordingly, the application must be allowed. […] It has been previously observed that it is not a sufficient basis to give testimony little weight only because the witness is a family member. Here, the brother testified that he and the principal claimant attended meetings many years ago of the very political party the claimant says he supported. That evidence should not be given “little weight” merely because it was offered by a relative. As the Applicants noted, if the Member wished to test that evidence, the brother’s PIF was available to the Board as he had previously been accepted as a refugee – apparently in part based on attendance at such meetings. For these reasons, his evidence was deserving of some weight. It appears to have been given none. [Application allowed] COUNSEL: ANTHONY NAVANEELAN MAMANN, SANDALUK & KINGWELL LLP TORONTO SAR-ils “auront eu droit à l’appel que le Parlement a créé au bénéfice des demandeurs d’asile déboutés par la SPR” 11. LAMIA ALOULOU ET. AL. IMM-7949-13 2014 CF 1236 19 DÉCEMBRE 2014 LeBLANC J.: […] J’ai déjà dit que la SAR, dans son rôle de tribunal administratif d’appel, se devait de procéder à un examen complet des questions de fait, de droit ou mixte de fait et de droit soulevées par l’appel des demandeurs. Ceux-ci d’ailleurs se plaignent du fait que la portion de la décision de la SAR portant sur les reproches adressés à la SPR eu égard à son appréciation de la preuve, ne fait même pas état de leurs récriminations et qu’elle ne fait, à toutes fins pratiques, que résumer la décision de la SPR et conclure à son intelligibilité. Effectivement, le traitement, par la SAR, des questions de fait, de droit ou mixte de fait et de droit soulevées par l’appel des demandeurs eu égard au mérite de la décision de la SPR est mince, sinon inexistant. Rien n’indique que ces questions ont fait l’objet d’un examen complet comme la Loi, à mon avis, le requiert. Il se peut, comme le pense le défendeur, qu’en renvoyant la présente affaire à la SAR, le résultat soit, en bout de course, le même. Toutefois, ce faisant, et quelle qu’en soit l’issue, les demandeurs auront eu droit à l’appel que le Parlement a créé au bénéfice des demandeurs d’asile déboutés par la SPR. La demande de contrôle judiciaire sera donc accueillie en partie et l’affaire renvoyée à la SAR, différemment constituée, pour qu’elle procède à un nouvel examen de l’appel des demandeurs devant tenir compte des présents motifs quant à la portée de l’examen de la décision de la SPR à laquelle la SAR doit se livrer. […] Depuis, la question suivante a été certifiée dans l’affaire Huruglica: “Quelle est la portée de l’examen fait par la Section d’appel des réfugiés lorsqu’elle considère un appel d’une décision d la Section de protection des réfugiés?” Les parties auront donc jusqu’au 14 janvier 2015 pour me faire part de leurs observations écrites quant à l’à propos de certifier une question dans les circonstances. [Application allowed] COUNSEL: FÉLIX F. OCANA CORREA MONTRÉAL No appellate intervention by RAD-Applicants never challenged the dispositive finding of the RPD as to an IFA 12. MOHAMED YUSUF U SILIYA ET. AL. IMM-5679-13 2015 FC 120 JANUARY 23, 2015 BOSWELL J.: […] Although the standard of review adopted by the RAD could be dispositive in many cases, the Applicants here never directly challenged the RPD’s IFA finding. […] The RAD’s decision should not be disturbed because the Applicants never challenged the dispositive finding of the RPD as to an IFA and, thus, there was no basis for any appellate intervention by the RAD. Accordingly, the standard by which the RAD reviewed the IFA finding is irrelevant, and even if it was selected erroneously that does not negate the RAD’s conclusion in disposing of the Applicants’ appeal on the basis that: […] “As the Appellants can find viable internal flight alternatives in their own country, they do not require Canada’s surrogate protection”. [Application dismissed] COUNSEL: SAIDALTAF I. PATEL TORONTO


Failure to even mention, let alone analyze, the inadequacy of state protection 13. TERENTIY KORNIENKO [RESPONDENT] IMM-5854-13 2015 FC 85 JANUARY 22, 2015 BOSWELL J.: […][T]he RPD’s reasons are bereft of any analysis whatsoever of the country conditions for homosexuals in Russia and Ukraine. The absence of such an analysis, however, does not automatically render the RPD’s decision unreasonable. In this case, it was incumbent upon the Minister to rebut the presumption that the RPD weighed and considered all the evidence presented, but the Minister failed to do so. The record here shows national documentation packages for Russia and Ukraine were before the RPD, together with various other documents concerning the situation for homosexual men in those countries. While the absence of any explicit analysis by the RPD of the adequacy of state protection in its reasons is not desirable, it cannot be said that the RPD made its decision without regard for the material before it. This case is not like those […] where unmentioned country condition documentation supports an inference that it was overlooked in the face of other, contradictory documentation relied upon by the tribunal. The Court should be cautious about substituting its own view of the proper outcome by designating certain omissions in the reasons to be fatal. […] Can a finding of inadequate state protection be presumed in the absence of analysis? […][T]he RPD’s failure in this case to even mention, let alone analyze, the inadequacy of state protection cannot be justified since this was a fundamental basis upon which its decision was premised. Indeed, the failure to even mention state protection raises an additional concern, since there is no way to tell whether the RPD appropriately understood the law in this regard. […][T]he RPD’s reasons in this case do not permit the Court to understand why it made the decision it did. [Minister’s application allowed] COUNSEL FOR RESPONDENT : KIRK J. COOPER RODNEY L.H. WOOLF TORONTO Excluded from refugee protection due to his previous convictions in the United States on several counts of home invasion 14. ARLIND NARKAJ IMM-1469-13 2015 FC 26 JANUARY 8, 2015 O’REILLY J.: […] Mr. Narkaj admitted that he had been involved in five offences of breaking and entering in Michigan. On one occasion, he entered a house in order to steal goods that could be resold for cash. He was 17 at the time. On the other occasions, he acted as a lookout. Those offences took place just after his 18th birthday. The Board found that these crimes would be punishable in Canada by a maximum sentence of life imprisonment under s 348(1)(b) of the Criminal Code. Therefore, Mr. Narkaj had committed serious non-political crimes. […] While the Board properly concluded that Mr. Narkaj had committed a serious non-political crime, it erred in applying the other relevant factors. First, the Board did not actually consider the mode of prosecution. “Mode of prosecution” refers to the manner in which the prosecution elects to proceed. In Canada, for example, under the Criminal Code, some crimes are prosecuted by indictment, some by summary conviction, and in respect of so-called “hybrid” offences, either way (eg theft under $5,000 (s. 334(b))). The mode of prosecution selected by the prosecutor is indicative of the seriousness of the offence; for example, a hybrid offence prosecuted by indictment may be punishable by a maximum of five years’ imprisonment while, on summary conviction, by no more than six months (eg identify theft, s. 402.2(5), s. 787(1)). In addition, for some crimes or certain offenders, a prosecutor may have a discretion to divert proceedings away from the usual criminal process toward more suitable, less punitive measures (eg a program of alternative measures (s. 717)). Again, the prosecutor’s choice would provide an indication of the seriousness of the offence. The Board did not consider the mode by which Mr. Narkaj’s crimes were prosecuted. It simply noted that he had been represented by counsel and had a fair trial. On the evidence, the Board should have considered that Mr. Narkaj was charged with home invasion in the second degree, which attracts a maximum sentence of 15 years, less than the corresponding maximum in Canada. Further, Mr. Narkaj was assigned “youthful trainee status”, meaning that no conviction was actually entered against him so long as he attended boot camp and respected the terms of his probation. Finally, some charges against Mr. Narkaj were dropped. In my view, these facts were relevant to the mode of prosecution pursued by United States’ authorities. Second, the Board should have considered that the punishment imposed […] was comparatively lenient, considering the maximum sentence available. Third, the Board did not consider the mitigating and aggravating factors reflected in the record. On the mitigating side, the following were relevant: [his] youth; his lack of a criminal record; his limited involvement in the crimes; the absence of violence; the absence of any use of alcohol, drugs, or paraphernalia on Mr. Narkaj’s part; and [his] guilty plea. On the aggravating side, the Board should have considered that Mr. Narkaj committed crimes after having been given the protection of the United States. In turn, his conduct led to the loss of status in that country, forcing him to return to Albania where he faced possible persecution. Overall, therefore, I find that the Board’s failure to consider numerous relevant facts led it to an unreasonable conclusion. [Application allowed] COUNSEL: JEFFREY L. GOLDMAN TORONTO

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