ARSHAD MUHAMMAD Applicant v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION, 2014 FC 448

Date: 20140509 Docket: IMM-3681-13 Citation: 2014 FC 448 Vancouver, British Columbia, May 9, 2014 PRESENT: The Honourable Madam Justice Strickland BETWEEN: ARSHAD MUHAMMAD Applicant and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent REASONS FOR JUDGMENT AND JUDGMENT TABLE OF CONTENTS I. PROCEDURAL BACKGROUND .. 3 A. Overview .. 3 B. First Restricted PRRA Decision . 4 C. Second Restricted PRRA Decision (Decision under Review) 6 D. Related Procedural Matters . 7 II. LEGISLATIVE BACKGROUND .. 9 III. DECISION UNDER REVIEW ... 10 IV. ISSUES . 16 V.

ANALYSIS . 17 Issue 1: What is the standard of review? . 18 Issue 2: Is the Minister’s Delegate bound by the PRRA Officer’s conclusions with respect to risk of return to torture? . 21 Issue 3: Were the principles of procedural fairness violated, more specifically: 34 (

i) Is the structure of the decision-making process pursuant to section 112(3) independent and impartial; and, is the Minister’s Delegate an independent decision-maker? . 34 (ii) Was there a reasonable apprehension of bias or an abuse of process? 34

Summary of Relevant Evidence . 43 (

i) Minister’s Delegate and CMB .. 43 (ii) Interest in the CBSA Wanted List 45 (iii) Meeting between CBSA and CIC .. 46 Analysis . 47 (

i) Structural Independence or Impartiality, Individual Independence . 47 (ii) Reasonable Apprehension of Bias or an Abuse of Process? . 56 Issue 4: Did the Minister’s Delegate reasonably conclude that the Applicant would not be at risk if returned to Pakistan? . 59 VI. CONCLUSION .. 74 [ 1 ] This is an application for judicial review of a negative decision made by Ms. Karine Roy-Tremblay, a Director of Case Determination [Minister’s Delegate] of Citizenship and Immigration Canada [CIC], dated May 17, 2013. The Applicant is identified

under subsection 112(3) (

c) of the Immigration and Refugee Protection Act , SC 2001, c 27 [the IRPA]. His application for protection was therefore examined under the structure set out in

section 172 of the Immigration and Refugee Protection Regulations , SOR/2002-227 [the IRPA Regulations]. This judicial review is brought pursuant to subsection 72(1) of the IRPA. I. PROCEDURAL BACKGROUND A. Overview [ 2 ] The Applicant is a citizen of Pakistan and a Sunni Muslim. He arrived in Canada in August 1999 using a false Italian passport and claimed refugee protection. His claim was denied on October 16, 2001, because he was determined to be excluded from consideration as a Convention refugee pursuant to

section 98 of the IRPA (which incorporates Articles 1F (

a) and (

c) of the UNHCR 1951 Convention Relating to the Status of Refugees [the Refugee Convention]) as a result of his membership in a terrorist organization. His application for judicial review of that decision was denied on February 6, 2002. [ 3 ] The Applicant subsequently applied for permanent residence in Canada on humanitarian and compassionate grounds. This was refused on November 5, 2002. He submitted a first Pre-Removal Risk Assessment [PRRA] application on October 30, 2002, which was refused on March 19, 2003.

Prior to receiving these two negative decisions, the Applicant allegedly wrote to his former counsel advising that he was leaving Montreal to go back to Pakistan, but he actually relocated to Toronto. The Applicant received notice that he was to attend an interview with CBSA in January 2003. He did not attend and claimed that he feared that if he had presented himself, he would have been jailed and returned to Pakistan.

A warrant for his removal was issued on July 3, 2003. [ 4 ] The Applicant was arrested in July of 2011 after the Canadian Border Services Agency [CBSA] released his name, photograph and last known whereabouts on its website along with the details of twenty-nine other individuals, under the heading “Wanted by the CBSA” [CBSA wanted list]. The website description stated: “These individuals are the subject of an active Canada-wide warrant for removal because they are inadmissible to Canada.

It has been determined that they violated human or international rights under the Crimes against Humanity and War Crimes Act , or under international law.” B. First Restricted PRRA Decision [ 5 ] On August 3, 2011, the Applicant submitted a second PRRA application, claiming that new facts had arisen since July 2011. He submitted that he was now a person in need of protection because of the publicity surrounding his case and that the possible risks to him in Pakistan included extreme physical abuse while in custody, unlawful detention and extrajudicial killing.

On October 7, 2011, the PRRA Officer found that the Applicant would be at risk if returned to Pakistan [PRRA assessment]. [ 6 ] The PRRA Officer assessed the Applicant’s risk on the basis that he would be perceived as a member of a terrorist organization. The Applicant had originally claimed to have joined, or expressed interest in joining, such an organization but was no longer relying on that assertion as a basis for refugee status. He now claimed that he had not actually been a member of such a group and had lied to Canadian authorities, believing that it would aid his refugee claim.

His new PRRA submissions were thus based upon his belief that he would be perceived to be a member of a terrorist organization. [ 7 ] The PRRA Officer examined objective documentary evidence identifying human rights abuses at the hands of state authorities and law enforcement in Pakistan. The PRRA Officer found that the Applicant’s case had been widely reported in Canada and somewhat reported in English-language media in Pakistan, he concluded that the Pakistani authorities were likely aware of the allegations made against the Applicant.

Given the consensus within objective documentation concerning the mistreatment of Pakistani citizens at the hands of the Pakistani police and security forces, the PRRA Officer found that it was more likely than not that the Applicant would face risk if returned.

The PRRA Officer found that there was an internal flight alternative [IFA] with respect to the threat by vigilante groups, but not with respect to the threat by state authorities. [ 8 ] Next, as was required by subsection 113 (d)(ii) of the IRPA , on December 15, 2011, CBSA produced an assessment of the nature and severity of any acts committed by the Applicant and the danger that he constituted to Canadian security [security assessment].

It concluded that there was no information that linked him directly to any of the terrorist organization’s crimes against humanity or terrorist acts and that there was insufficient information to establish that the Applicant was a danger to the security of Canada. CBSA wrote that while the Applicant was presumed to be complicit by association in the acts of the terrorist group, the jurisprudence regarding complicity by association required credible evidence of actions furthering the perpetration of crimes for the purposes of

section 113 (d) (ii). It was not established that the Applicant was directly involved in perpetrating international crimes, and thus his complicity by association “may not be sufficient to justify his removal from Canada should he be found at risk.” [ 9 ] The PRRA and CBSA’s security assessments were disclosed to the Applicant in December 2011 for comment before being sent to a Minister’s delegate who would render the final decision. The Minister’s Delegate rejected the PRRA assessment on February 16, 2012 [first restricted PRRA].

The Applicant sought judicial review of that decision, which was granted by Justice Boivin on December 18, 2012 ( Arshad Muhammad v Canada (Minister of Citizenship and Immigration) , 2012 FC 1483 [ Muhammad ]). Justice Boivin found that the Minister’s Delegate had failed to adequately justify, on the basis of the evidence, why she had concluded that the Applicant would likely not be at risk. C. Second Restricted PRRA Decision (Decision under Review) [ 10 ] The Minister’s delegate who conducted the redetermination was Ms. Roy-Tremblay.

On May 17, 2013, she also found that the Applicant had not established that he would face a risk of torture, a risk to life, or a risk of cruel and unusual treatment or punishment should he be returned to Pakistan [second restricted PRRA or the Decision]. That Decision is the subject of the present proceeding. The Applicant filed his application for judicial review on May 24, 2013.

[ 11 ] Subsequently, on May 28, 2013, the Applicant learned through the affidavit of Reg Williams, a former Director of Enforcement with CBSA, that on February 3, 2012, a meeting had been held between Ms. Glenda Lavergne, the former Director General, Border Operations, CBSA; Ms. Susan Kramer, Director, Case Management Division at CIC; and, Mr. Michel Dupuis, Director General of Case Determination at CIC, to discuss the Applicant’s case. As a result, and pursuant to an Order of Justice Noël dated June 26, 2013, the Applicant cross examined Ms. Lavergne, Ms. Kramer, Mr. Dupuis and Ms.

Roy-Tremblay during the period July to September 2013 on affidavits they had sworn concerning that meeting and the relationships between CBSA and CIC. [ 12 ] The Applicant’s removal from Canada to Pakistan, which was scheduled for June 2, 2013, was stayed by order of Justice Gleason on June 1, 2013, until a decision is made on the present application for leave and judicial review. The Applicant applied for release from immigration detention on numerous occasions.

However, following reviews by the Immigration and Refugee Board [the Board], his detention was continued as he was determined to be unlikely to appear for removal. D. Related Procedural Matters [ 13 ] There have been many procedural matters related, in one way or another, to this application for judicial review. Only those with an immediate bearing on this matter are noted below. [ 14 ] On June 26, 2013, Justice Noël also ordered disclosure of any documents relating to an allegation by the Applicant of an abuse of process and failure to observe the duty of candour by CBSA and CIC.

At a detention review in September 2013, the Applicant presented new, recently discovered information which had been obtained as a result of those disclosures. This included email exchanges between CBSA and CIC during October 2011.

In those exchanges CBSA expressed concern about the PRRA assessment, which it considered could have an impact on the detention review scheduled for October 21, 2011, and CBSA’s decision that it would not be disclosed to the detention review hearing member prior to the upcoming detention review. [ 15 ] In response to a subsequent allegation by the Applicant that CBSA had breached its duty of candour by withholding the PRRA assessment, the Board concluded on September 26, 2013, that the non-disclosure was not an abuse of process.

However, on October 16, 2013, in Court file IMM-6232-13, Justice Beaudry allowed the Applicant’s application for judicial review of that decision by the Board and found that CBSA had made a conscious decision to withhold the information from the detention review hearing member which did amount to a breach of the duty of candour. [ 16 ] As a result of Justice Beaudry’s decision, the detention decision was remitted back for redetermination. Upon reconsideration, the Board determined on October 25, 2013, that continued detention was still warranted.

On October 28, 2013, the Applicant applied for judicial review of that detention decision. On November 21, 2013, Justice McVeigh dismissed his application for review of the redetermination, finding that the Board had reasonably denied release from detention. [ 17 ] On September 9, 2013, the Applicant filed a notice of a constitutional question in the present application for judicial review. He alleged that the Minister’s Delegate was not independent and impartial and, therefore, could not make decisions on a risk of torture, a subject matter which engages

section 7 of the Canadian Charter of Rights and Freedoms ,

Part I of the Constitution Act , 1982, being

Schedule B to the Canada Act 1982 (UK), 1982, c 11 [the Charter ] and thus requires an independent decision-making process. II. LEGISLATIVE BACKGROUND [ 18 ] In this matter, the process involved for removal is governed by subsection 112(3) of the IRPA . Pursuant to subsection 112(3) (c), a person whose refugee claim is rejected on the basis of

section F of

Article 1 of the Refugee Convention , as is the case with the Applicant, cannot obtain refugee protection.

Section F (

a) is contained in a

Schedule to the IRPA and states that t he provisions of the Refugee Convention shall not apply to any person with respect to whom there are serious reasons for considering that they have committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes . [ 19 ] A PRRA for someone described in subsection 112(3) (

c) is often referred to as a “restricted PRRA”. Subsection 113 (

d) states that, in the case of a subsection 112(3) applicant, consideration shall be on the basis of factors set out in

section 97 of the IRPA , and, the factors described in that subsection. In this case, the

section 97 factors must be considered along with whether the application should be refused because of the nature and severity of acts committed by the Applicant or because of the danger he constitutes to the security of Canada (subsection 113( d )(ii)). [ 20 ] Further, pursuant to subsection 114(1)( b ), a positive restricted PRRA decision in such a case would only result in the staying of a removal order against an applicant with respect to the country in respect of which he or she was determined to be in need of protection. It would not result in the granting of refugee protection.

Subsections 172(1) and (2) of the IRPA Regulations provide that before making a decision to allow or reject the application of someone identified in subsection 112(3) of the IRPA , the Minister (or the Minister’s delegate) shall consider the written assessment on the basis of the

section 97 factors (the PRRA assessment), a written assessment on the basis of the factors set out in subsection 113 ( d )(

i) or (ii) of the IRPA (the security assessment), whichever the case may be (in this case, subsection 113(d)(ii)), and any written response to the assessments from the applicant. This is the process which was undertaken in this case. III. DECISION UNDER REVIEW [ 21 ] As noted above, on May 17, 2013, the Minister’s Delegate rendered the Decision in which she determined that the Applicant would not be at risk of torture, death, or cruel and unusual treatment or punishment should he be returned to Pakistan. Having concluded that the Applicant would not face the risks identified in

section 97 of the IRPA , the Minister’s Delegate found that it was not then necessary to balance her assessment of the situation he would face in Pakistan against CBSA’s assessment of the seriousness of any

crimes committed by the Applicant and of any danger he posed to Canada. [ 22 ] The Minister’s Delegate stated that in making her Decision she had considered the PRRA Officer’s risk assessment, CBSA’s security assessment, and the Applicant’s response to both. [ 23 ] She provided a description of the appointment process for her role and position.

In that regard, she noted that CIC’s Immigration Legislation Operational Manual IL3 – Designation of Officers and Delegation of Authority [IL3 Manual], defines the designation of officers and the delegation of authority as contained in the Instrument of Designation and Delegation signed by the Minister pursuant to subsections 6(1) and 6(2) of the IRPA . [ 24 ] The Minister’s Delegate described the IL3 Manual and provided a table of delegated authorities. With respect to subsections 112, 113, and 113(d)(ii) of the IRPA and

section 172 of the IRPA Regulations , she stated that authority had been delegated to her by the Minister pursuant to subsection 6(2) of the IRPA and that only such delegated persons can determine an application for protection from a person whose claim was rejected on the basis of subsection 112(3) (

c) of the IRPA . The designated positions listed, including herself as the Director, Case Determination, have the delegated authority to consider, and allow or reject, an application for protection from a person who has been found to be inadmissible on grounds of security, violating human or international rights, organized criminality, whose refugee claim was rejected on the basis of

section F of

Article 1 of the Refugee Convention, or, who is named in a certificate under subsection 77(1) of the IRPA. Officials in these positions can assess whether the application should be refused because of the nature and severity of acts committed by the applicant or because of the danger that the applicant constitutes to the security of Canada. [ 25 ] The Minister’s Delegate stated that the PRRA officer who prepared the risk assessment does not have such delegated authority and does not have the jurisdiction to make a decision concerning a person described in subsection 112(3) of the IRPA .

She referred to Placide v Canada (Minister of Citizenship and Immigration) , 2009 FC 1056 [ Placide ] in which Justice Shore found that a PRRA officer’s assessment under

section 97 cannot constitute a decision but instead is a “form of advice or suggestion”. She stated that for her to be bound by the PRRA or security assessments would be a fettering of her discretion. [ 26 ] With respect to the Applicant’s allegations of a reasonable apprehension of bias, she stated that once a delegation of authority is granted to a person as described in the IL3 Manual, that decision-maker is fully independent and impartial in the decision-making process.

Her appointment to the position of Director, Case Determination was a merit based selection process in accordance with the Public Service Employment Act and was based on her experience and knowledge of the IRPA and IRPA Regulations. Such processes are free from any Ministerial intervention given that the Public Service of Canada is independent of the executive branch of government. [ 27 ] The Minister’s Delegate also stated that she had never been involved in the “Most Wanted List” program which falls within the CBSA’s mandate along with removals.

Further, that the restricted PRRA process is impartial, independent and free of intervention of any kind, especially by the Minister, his office, or other senior officials. Case Determination Directors are officials from CIC and not from CBSA, and they are not close to the Minister of CIC or to senior officials in charge of removals and enforcement. Even if one part of the Case Management Branch works on high profile cases, her role is entirely separate and she is not involved in any of their discussions. She reports to the Director General who, in turn, reports to an Associate Assistant Deputy Minister.

The Director General never interferes with her cases or decisions. [ 28 ] The Minister’s Delegate then set out the required analysis under

section 97 of the IRPA in the context of

Article 1 of the Convention Against Torture and the concept of “cruel and unusual treatment or punishment” in

section 12 of the Charter .

She noted that Pakistan is a federal republic where democratic rule was restored in 2008 and that the Pakistan People’s Party (PPP), which the Applicant joined in 1996, was elected in February 2008 and is now the governing party in Pakistan in coalition with smaller parties. [ 29 ] The Minister’s Delegate considered the documentary evidence, specifically citing two reports: the US Department of State Country Report on Human Rights Practices 2011 [USSD 2011] which identifies the presence of human rights abuses including extrajudicial killings, torture and disappearances, and a 2012 UK Border Agency report, Pakistan Country of Origin Information (COI) Report [UKBA 2012], which noted some positive achievements in the area of human rights.

She stated that other, unspecified, reports mentioned that despite the work that still needs to be done in Pakistan with respect to human rights, some important progress had been made. [ 30 ] The Minister’s Delegate concluded that the risk faced by the Applicant was generalized. As well, since he is an adult man from Punjab and a Sunni Muslim, this profile placed him at a lower risk than the general population in Pakistan. [ 31 ] As to the security situation in Pakistan, while it has improved since 2011, she acknowledged that more was still required to be done.

The risk of fatality is one that is faced generally by everyone in Pakistan, however, that the evidence before the Minister’s Delegate indicated that Punjab is one of the most secure areas in the country. She found that there was insufficient evidence to indicate that the Applicant would become a target for non-state actors in Pakistan due to being perceived as associated with a terrorist group because of having been on CBSA’s wanted list.

On a balance of probabilities, she was not satisfied that the risk that the Applicant would be associated with a terrorist group by state or non-state actors put him at risk pursuant to

section 97 . [ 32 ] The Minister’s Delegate concluded that the Applicant would be at very low risk of being of interest, being arrested, or being detained once he was in Pakistan and then went on to consider the risks he might face when entering Pakistan. [ 33 ] She considered each of the Applicant’s alleged grounds for risk including: that he is a failed refugee claimant; that he used a fraudulent document to travel to Canada; that his name and likeness were made public through CBSA’s wanted list; and, that he was identified as being linked to a terrorist organization. [ 34 ] She noted that May 2005 correspondence from the Human Rights Commission of Pakistan, cited in UKBA 2012, stated that failed Pakistani refugee claimants were not usually detained upon return to Pakistan.

With respect to the use of a fraudulent passport, the Minister’s Delegate noted that traveling with a fraudulent document is unlawful in Pakistan and there was therefore a possibility that the Applicant could face charges, and that this would increase the chances that he would spend time in detention.

[35] While acknowledging that he would be exposed to difficult conditions if detained, such as “overpopulated prisons, fewdoctors available for medical examination of detainees and reported acts of mistreatments including beating, prolonged isolation, ordenial of food or sleep”, she also noted that the USSD 2011 report indicated that if he was charged with a criminal offence, he would bebrought before a judge within 24 hours and would be able to apply for bail.

She found that it was speculative to say that he would likelybe tortured or exposed to cruel or unusual treatment while in prison, as there was insufficient evidence to establish that he wouldpersonally be at any greater risk of those treatments than other prisoners.

She also found that the documentary evidence indicated thatsuch situations occurred in specific cases and were mostly reported as occurring in the provinces of Balochistan and KhyberPakhtunkhwa (KP), and the Federally Administered Tribal Areas (FATA). [36] With respect to being placed on CBSA’s wanted list for connections with a terrorist organization, the Minister’s Delegatefound that the subject terrorist organization’s name had never been made public. Therefore, she concluded that the Pakistani authoritieswould not be able to link the Applicant to a specific organization.

The documentation pertaining to arrest and detention of suspectedmembers of terrorist organizations showed that, in most cases, the arrested persons were linked to specific terrorist acts. Further, as theApplicant had resided in Canada since 1996, the Minister’s Delegate considered that Pakistani authorities would be unable to link him toany specific terrorist organization or specific terrorist acts committed in Pakistan.

Based on this, it was more likely than not that theApplicant would be released quickly from any initial detention that was based on suspected links to a terrorist organization. [37] The Minister’s Delegate noted that the UKBA 2012 report quoted the Asian Human Rights Commission as commenting on aspeech by Pakistan’s foreign minister to the effect that the government of Pakistan had encountered difficulty in prosecuting militantslinked to either terrorist organizations or terrorist acts on Pakistani soil. [38] The Minister’s Delegate concluded that while the documentary evidence indicated that Pakistan is in a difficult situation forthe respect of human rights and security conditions, and while the Applicant might be administratively detained and questioned upon hisarrival, the evidence did not support the allegation that he would be at a risk of torture, risk to life or cruel and unusual punishmentpursuant to

section 97. [39] Having made a negative determination on risk, the Minister’s Delegate stated that she was therefore not required to balancethe risk identified by the PRRA assessment against CBSA’s security assessment, pursuant to subsection 172(4) of the IRPA Regulations.She denied the application for protection. IV. ISSUES [40] I would frame the issues in this application for judicial review as follows: 1. What is the standard of review? 2. Is the Minister’s Delegate bound by the PRRA Officer’s conclusions with respect to risk of return to torture? 3.

Were the principles of procedural fairness violated, and, more specifically: i. Is the structure of the decision-making process pursuant to section 112(3) independent and impartial; and, is the Minister’sDelegate an independent decision-maker? ii. Was there a reasonable apprehension of bias as a result of interest in the CBSA’s wanted list or an abuse of process? 4.

Did the Minister’s Delegate reasonably conclude that the Applicant would not be at a risk if returned to Pakistan? [41] The Respondent submits that it is unnecessary to consider the Charter where a case can be determined on the basis ofadministrative law and statutory

interpretation (Baker v Canada (Minister of Citizenship and Immigration), (SCC),[1999] 2 SCR 817 at para 11 [Baker]; Chieu v Canada (Minister of Citizenship and Immigration), 2002 SCC 3 , [2002] 1 SCR84 at para 19; Tran v Canada (Public Safety and Emergency Preparedness), 2010 FC 175 at para 36). [42] I agree that this Court does not have an obligation to respond to a constitutional question if it is possible to answer thequestions posed by applying principles of administrative law. As Justice L’Heureux Dubé stated in Baker, above: [11] Because, in my view, the issues raised can be resolved under the principles of administrative law and statutory

interpretation, Ifind it unnecessary to consider the various Charter issues raised by the appellant and the interveners who supported her position. [43] In my view, the procedural fairness aspect of the present application can be decided by applying certain of those principles.Therefore, the Charter argument need not be addressed. V. ANALYSIS Issue 1: What is the standard of review?

Applicant’s Submissions [44] The Applicant submits that aside from the issue of the reasonableness of the Decision, all issues relating to independence, biasand abuse of process are to be reviewed on a correctness standard as they relate to procedural fairness (Kastrati v Canada (Citizenshipand Immigration), 2008 FC 1141 at paras 9-10).

[ 45 ] In terms of the reasonableness of the Decision, the Applicant submits that Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board) , 2011 SCC 62 , [2011] 3 SCR 708 [ Newfoundland Nurses ] is not a direction for the Court to abandon its supervisory function in relation to judicial review ( Alberta Information and Privacy Commissioner v Alberta Teachers’ Association , 2011 SCC 61 , [2011] 3 SCR 654 at para 54 ) [ Alberta Teachers ]). Respondent’s Submissions [ 46 ] The Respondent submits that the standard of review for the assessment of the evidence is reasonableness.

Significant deference is warranted on judicial review of a Director, Case Determination’s assessment of risk ( Muhammad , above, at para 28 ; Placide , above, at para 92 ; Sing v Canada (Minister of Citizenship and Immigration) , 2011 FC 915 at para 39 [ Sing ]). [ 47 ] So long as the Minister’s Delegate took into account the relevant considerations and came to a conclusion reasonably supported on the evidence, it is not open to the Applicant to invite the Court to reweigh the evidence, regardless of whether the evidence might also support a different conclusion ( Dunsmuir , above, at para 47; Canada (Minister of Citizenship and Immigration v Khosa , 2009 SCC 12 , [2009] 1 SCR 339 [ Khosa ]).

A decision-maker need not refer to every item of evidence and is presumed to have considered all of the evidence before her ( Newfoundland Nurses , above, para 16 ; Florea v Canada (Minister of Employment and Immigration) , [1993] FCJ No. 598 (CA) (QL) ). [ 48 ] The Respondent does not make submissions on the applicable standard of review for the remaining issues. Analysis [ 49 ] An exhaustive analysis is not required in every case to determine the proper standard of review.

Rather, courts must first ascertain whether the jurisprudence has already determined in a satisfactory manner the degree of deference to be accorded to a decision- maker with regard to a particular category of question ( Khosa , above, at para 53 ; Dunsmuir , above, at paras 57 and 62). [ 50 ] For the second issue, being whether the Minister’s Delegate is bound by the PRRA assessment, this was before Justice Boivin in Muhammad , above. There, Justice Boivin found that it was a question of jurisdiction involving the

interpretation of the IRPA and the IRPA Regulations reviewable on a standard of correctness ( Dunsmuir , above, paras 50 and 59; Muhammad , above, at para 28 ).

In my view it could also, however, be reviewable on the reasonableness standard as “[d]eference will usually result where a tribunal is interpreting its own statute or statutes closely connected to its function, with which it will have particular familiarity” ( Dunsmuir , above, at para. 54; McLean v British Columbia (Securities Commission) , 2013 SCC 67 at paras 19-23 ; Alberta Teachers , above, at para 34). [ 51 ] The third issue pertains to procedural fairness and natural justice and is to be reviewed on a standard of correctness ( Kozak v Canada (Minister of Citizenship and Immigration) , 2006 FCA 124 , [2006] 4 FCR 377 at para 44 ).

More specifically, whether the structure of the subsection 112(3) decision making process, and whether the Minister’s Delegate is independent and impartial, are issues of procedural fairness ( Douglas v Canada (Attorney General) , 2014 FC 299 at para 71 ; Bell Canada v Canadian Telephone Employees Association , 2003 SCC 36 , [2003] 1 SCR 884 at para 21 [ Bell Canada ]). Institutional bias and independence are also reviewed on a correctness standard ( Singh v Canada (Citizenship and Immigration) , 2008 FC 669 at para 25 [ Singh ]).

Issues of abuse of process also concern procedural fairness and are reviewed on a correctness standard ( Pavicevic v Canada (Attorney General) , 2013 FC 997 at para 29 ; Herrera Acevedo v Canada (Minister of Citizenship and Immigration) , 2010 FC 167 at para 10 ). On a standard of correctness, no deference is afforded and the Court will undertake its own analysis of the questions ( Dunsmuir , above, at para 50). [ 52 ] As to the fourth issue, the standard of review applicable to the Minister’s Delegate’s assessment of the evidence is reasonableness ( Muhammad , above, at para 28 ; Dunsmuir , above).

In reviewing the Decision on the standard of reasonableness, the Court should not intervene unless the Board came to a conclusion that is not transparent, justifiable and intelligible and within the range of acceptable outcomes based on the evidence before it ( Dunsmuir , above, at para 47; Khosa , above, at para 59 ). It is not the role of a reviewing court to substitute its own view of a preferable outcome or to reweigh the evidence ( Khosa , above, at para 59 ). Issue 2: Is the Minister’s Delegate bound by the PRRA Officer’s conclusions with respect to risk of return to torture?

Applicant’s Submissions [ 53 ] The Applicant submits that the role of the Minister’s Delegate is not to conduct a new risk assessment. Rather, that the role is restricted to the weighing and balancing of the positive risk assessment already made by the PRRA Officer against the CBSA security assessment. This

interpretation is supported by a plain reading of the legislation including subsections 112(3) and 114 of the IRPA and subsection 172 of the IRPA Regulations . [ 54 ] The Applicant refers to

Chapter PP3, Pre-removal Risk Assessment (PRRA), of CIC’s Operational Manual (PRRA Operations Manual) which he interprets as follows: Step 1 : PRRA Officer assesses the application and either finds no risk, in which case application is dismissed right then and there is no further processing, or the officer finds there is risk, in which case she writes up her reasons and sends them to the removals officer.

This is the same as for any PRRA application, except that the PRRA officer’s positive assessment is not dispositive of the application, as only a MD [minister’s delegate] can render a final decision to allow a s.112(3) PRRA. Instead the applicant goes to Step 2. Step 2 : An analyst at National Security Division prepares an assessment, in accordance with R172(2)(b), with respect to whether the applicant’s presence in Canada is a danger to the country’s security, or the nature or severity of the acts committed by the applicant are such that the application should be refused.

At Step 3 , both assessments are disclosed to the applicant for comment,

Finally, at Step 4, the minister’s delegate is provided with the 2 assessments and the applicant’s comments, and renders a decision basedupon them, either refusing the application, or allowing it and granting a stay of removal. [Applicant’s Emphasis] [55] The Applicant submits that the PRRA Officer’s risk assessment is final and that the Minister’s Delegate cannot disregard itand come to her own conclusion. This

interpretation is consistent with section 172(4) of the IRPA Regulations, the PRRA OperationsManual and jurisprudence which has described the role of the Minister’s Delegate as one of a “weighing exercise” (Li v Canada(Minister of Citizenship and Immigration), 2010 FCA 75 at paras 10 and 54 [Li]). [56] The PRRA Officer’s expertise in determining risk and assessing credibility has been confirmed (Raza v Canada (Minister ofCitizenship and Immigration), 2006 FC 1385 at para 10; Kim v Canada (Minister of Citizenship and Immigration), 2005 FC 437; Hassanv Canada (Minster of Citizenship and Immigration), [1992] FCJ No 946 (CA) (QL)), and it was not intended that the Minister’s Delegatecan go behind a PRRA Officer’s assessment. [57] The Applicant submits that this Court should not follow Placide, above (followed in Delgato v Canada (Minister ofCitizenship and Immigration), 2011 FC 1131 [Delgato]) because it was based on a wrong statement made in obiter.

Justice Shore reliedon the wrong delegated authority in finding that the Minister’s Delegate is not bound by a PRRA Officer’s opinion. He relied on section101, but it is actually

section 55, which, the Applicant submits, by its express wording makes it clear that the role of the Minister’sDelegate is merely to do the balancing with the positive PRRA assessment. [58] The Applicant also submits that Justice Shore’s analysis failed to appreciate that the decision of whether or not to allow thePRRA only arises after the PRRA Officer has made a positive determination, meaning that the Minister’s Delegate is only permitted tobalance what is to be done after the positive PRRA.

Therefore, Placide should not be followed, in accordance with the exceptions tojudicial comity (Almrei v Canada (Minister of Citizenship and Immigration), 2007 FC 1025 at paras 61-62). Furthermore, the authorityand independence of the Minister’s Delegate is directly before this Court which was not the situation in Placide. Respondent’s Submissions [59] The Respondent also refers to the PRRA Operations Manual; however, its

interpretation of that document differs from that ofthe Applicant. The Respondent explains it as follows: Step 1 – the Risk Assessment – A CIC officer (titled “PRRA Officer”) prepares an opinion on whether the applicant is at risk based ons. 97 grounds, if removed. If the PRRA Officer is of the opinion that there is no risk, the Restricted PRRA application is rejected and theapplicant is removed from Canada according to ss. 172(4) of the Immigration and Refugee Protection Regulations (the “Regulations”).

Ifthe PRRA Officer is of the opinion that there is a risk, the Restricted PRRA application is not yet finalized and moves to the next steps. Step 2 – the Restriction Assessment – A CBSA officer prepares an opinion, called the Restriction Assessment, as to whether theRestricted PRRA application should be refused notwithstanding the risks identified due to the nature and severity of the acts committed,or because the applicant is a danger to the security of Canada, according to ss. 113 (

d) of the IRPA. Step 3 – the Applicant’s submissions – the Risk Assessment and the Restriction Assessment are provided to the applicant for commentsaccording to ss. 172(2) of the Regulations. For reasons of administrative efficiency, the assessments are given to the applicant togetherafter they are both completed. Step 4 – Minister’s Delegate decision – the Risk Assessment, Restriction Assessment and the applicant’s submissions are provided to aCIC Minister’s Delegate, (e.g. Director, Case Determination).

The Minister’s Delegate uses this information, in addition to his/her ownresearch, to make the final Restricted PRRA decision. The final decision determines whether the application is allowed or rejected – i.e.whether or not the applicant can be removed to the country of removal (per ss 114(1) of the IRPA). [Respondent’s Emphasis] [60] The Respondent submits that at step 4, according to section 172(1) of the IRPA Regulations, the Minister’s Delegate is boundto consider the materials submitted, but is not bound by the initial PRRA assessment. This

interpretation is consistent with thejurisprudence (Placide, above; Muhammad, above, at paras 29-31, 42; Delgato, above, at para 6). The Respondent states that Li, above,does not support the argument that the jurisdiction of the Minister’s Delegate is limited to weighing the assessments before her.

Further,the Federal Court of Appeal’s statement that the Minister’s Delegate conducts a “weighing exercise” does not mean that the Minister’sDelegate’s jurisdiction is limited as the Applicant suggests. [61] The Respondent refers to the Minister’s Instrument of Designation and Delegation and CIC’s IL3 Manual in support of itsposition that the PRRA Officer does not have the delegated authority to render a final PRRA decision.

This can only be made by thepersons holding the positions listed in the IL3 Manual, which permits the Director, as the Minister’s Delegate, to “consider, allow orreject, an application for protection (PRRA) from a person…whose claim was rejected on the basis of

section F or

Article 1” (Placide,Delgato, both above; Say v Canada (Solicitor General), 2005 FC 739, aff’d 2006 FCA 422 [Say]). Say concerned the jurisdiction of aMinister’s delegate involving a person described in subsection 112(3), were based on a rational reading of the relevant statutes,regulations, manuals and Instruments of Delegation. The Applicant has not demonstrated that this jurisprudence is manifestly wrong(Bell v Cessna Aircraft Co, (BC CA), [1983]149 DLR (3rd) 509 at 511). [62] The Respondent submits that the Applicant’s

interpretation of the scheme would be contrary to the intent of risk assessmentsbecause it could bind an assessment where there is a time lapse between the PRRA and a Minister’s delegate’s decision. It also fails toexplain why both assessments are sent to the delegate for review, regardless of the outcome of the security assessment. Where thesecurity assessment is negative, sending it and the initial PRRA assessment to a Minister’s delegate serves no purpose if its only role isto balance the two assessments.

[ 63 ] The Respondent submits that the Minister’s Delegate is qualified to perform the restricted PRRA assessment, having been hired through a merit-based selection process which includes a demonstrated knowledge of the PRRA process and the IRPA . Analysis [ 64 ] This issue has previously been before this Court.

Based on both the legislation and that jurisprudence, it is my view that the Minister’s Delegate is not bound by the PRRA Officer’s risk assessment. [ 65 ] The Applicant’s PRRA application was processed according to subsections 172(1) and (2) of the IRPA Regulations and the IRPA legislative scheme as described above. Section 172(1) states that before “making a decision to allow or reject” an application described in section 112(3) of the IRPA , a Minister’s delegate “shall consider” the risk and security assessments and written response to them by an applicant.

It does not restrict the consideration to a weighing of the assessments nor state that a Minister’s delegate is bound by them. [ 66 ] The PRRA Operational Manual also describes this process, but as will be seen, not necessarily in the definitive manner(

s) proposed by each party: Applicant not described in A97 If the PRRA officer finds no danger of torture, no risk to life and no risk of cruel and unusual treatment or punishment, the assessment terminates at this point. The officer finalizes the assessment and prepares the refusal letter, which is sent with the file to the CBSA Removals office… Applicant described in A97 If the PRRA officer finds the applicant described in A97, the officer prepares the assessment referred to in R172(2)(

a) and sends it and any supporting documentation to the CBSA removals office. The removals officer prepares supporting documentation regarding the restrictions set out in A112(3)(a),(b),(c), or (d) , and A113(d)(1) or (ii), as applicable, and sends it, as well as the PRRA assessment and supporting documents, to the Coordinator, Danger to the Public/Rehabilitation Case Review, Case Management Branch (CMB), CIC. CMB will manage these cases, and forward the security, organized crime, and modern war crime cases to National Security Division, CBSA, for assessment.

An analyst at Danger to the Public/Rehabilitation, Case Review, or National Security Division, as applicable, prepares an assessment, in accordance with R172(2)(b), with respect to whether the applicant’s presence in Canada is a danger to the public or a danger to the country’s security, or the nature or severity of the acts committed by the applicant are such that the application should be refused. The assessment referred to in R172(2)(b), including the supporting documentation, is returned to the CBSA removals office. The removals officer delivers the assessments referred to in R 172(2)(

a) and (b), and the supporting documentation, to the applicant. Any new extrinsic evidence that is related and central to the assessment is disclosed. The applicant then has 15 days to respond in writing. The applicant is instructed to send any submissions directly to the removals office. The applicant may request an extension of time to respond…. Upon receipt of the applicant’s submissions, the removals officer returns the two assessments, and the supporting documentation, as well as the applicant’s submissions, to the Coordinator, Danger to the Public/Rehabilitation, Case Review, CMB.

An analyst adds a covering memo to the package confirming that the applicant has seen the assessments, ensure that the applicant's submissions, if any, are included, and forwards the file to the C&I Minister's delegate. The C&I Minister’s delegate considers the assessments, the supporting documentation, and the applicant’s submissions, and renders a decision on the application . The decision is then returned to the CBSA removals office, concurrently, if NSD prepared an R172(2)(

b) assessment, NSD will be notified of the decision…. [Emphasis added] [ 67 ] Thus, the PRRA Operation Manual also does not limit the Minister’s Delegate’s role to that of weighing the risk and security assessments. [ 68 ] The Minister’s Delegate in her affidavit dated August 22, 2013, made reference to

section 17.2 of the PRRA Operational Manual. It concerns the circumstances in which persons who are granted stays pursuant to subsections 112(3) and 172(2) (

b) of the IRPA are re-examined, due to a change of circumstance, pursuant to section 172(2) (

a) of the IRPA Regulations . The process to be followed in that event is set out, including: Once in receipt of the submissions of the individuals, the CBSA removal officer will forward the submissions to the Coordinator, Danger to the Public / Rehabilitation CMB for consideration by the C&I Minister’s Delegate, who makes a decision to cancel or maintain the stay based on a balancing of the factors in A97(1) and A113(d)(

i) and (ii) as applicable. The stay will be maintained if the C&I Minister’s Delegate is of the opinion after balancing the risks to the individual against the risk to society that the individual, because of the risk that would be faced on removal, should be allowed to remain in Canada.

However, should the C&I Minister’s Delegate decide that risk to the individual no longer exists, or that the risk that the individual poses to Canada and Canadians outweighs the risk to the individual, the stay will be cancelled… [ 69 ] This suggests that not only may the Minister’s Delegate balance the risk and security assessments, but that he or she may also make a decision as to whether a risk still exists. Clearly if such a decision is made it may, or may not, be in accordance with the PRRA Officer’s risk assessment.

[70] The language of subsection 172(1) of the IRPA Regulations is that, before making a decision to allow or reject an applicationdescribed in subsection 112(3) of the IRPA, the Minister “shall consider the assessments” referred to in subsection 172(2), being thePRRA assessment and the security assessment. The PRRA Operational Manual is also consistent in describing these as assessments andrequiring a Minister’s delegate to consider them prior to rendering a decision. Contrary to the suggestion of the Respondent, a PRRAofficer’s contribution is not described as an “opinion”.

Nor does the PRRA Operational Manual state that the decision of a Minister’sdelegate must be based on the assessments alone as suggested by the Applicant. [71] A plain reading of these provisions does not lead to a conclusion that the Minister’s Delegate’s jurisdiction is circumscribedby the PRRA Officer’s finding as contained in his risk assessment submitted for her consideration.

While the Minister’s Delegate mustconsider, or weigh, these assessments, the provisions do not go further and circumscribe her ability to reconsider their conclusions.Indeed, subsection 172(1) acknowledges that the Minister’s Delegate may allow or reject the application. This is of note because onlypositive risk assessments proceed to the Minister’s Delegate. Thus, as here, she may receive a positive risk assessment, meaning that anapplicant is at risk if returned, and a negative security assessment, meaning that the applicant does not pose a risk to the security ofCanada.

If she were only required to balance these two risks then the outcome would be obvious and foregone. The risk to the Applicantwould outweigh the risk to Canada. She would have no latitude to reject the application on that basis. [72] In my view, the jurisprudence also suggests this finding. In Li, above, one of the issues before the Federal Court of Appealwas whether a PRRA officer was entitled to consider an application pursuant to subsection 113(

d) of the IRPA after he or she determinesthat a person is excluded from protection under

section 98. As to the role of a Minister’s delegate, the decision addressed this onlyperipherally: [10] The PRRA officer concluded that there was a real risk that the Li brothers would be tortured, given the nature of the chargespending against them. She then sent the file on to the Minister’s delegate for consideration of the factors militating against allowing theLi brothers to stay in Canada, that is, the nature and severity of the crimes alleged against them. This weighing exercise has yet to becompeted…. […] [54] …Notwithstanding the PRRA officer’s conclusion that

section 98 applied to the Li brothers, she went on to find that they were atrisk of torture if returned to China and forwarded the file to the Minister’s delegate for weighing of the factors relevant to their removalto China in the face of that risk…. [73] However, the issue of the jurisdiction of a Minister’s delegate to make a decision following the risk and security assessmentswas substantially considered by Justice Shore in Placide, above. [74] In Placide, the applicant was a Haitian citizen who sought judicial review of the decision of a Minister’s delegate denying hisapplication for refugee protection.

Between 1989 and 2005 the applicant had been convicted of forty-four criminal offences and aremoval order was issued against him. He then applied for a PRRA which was granted on the basis that he would face a risk to his life ora risk of cruel or unusual treatment or punishment if returned to Haiti. Subsequently, the Minister’s delegate rejected the applicant’sapplication for protection on the basis that he would not be subjected to danger of torture or a risk to his life or of cruel or unusualpunishment if he were returned.

The Minister’s delegate also found that the applicant was a present and future danger to the Canadianpublic. [75] The Court dismissed the application for judicial review of that decision and, in the context of a change of circumstancesanalysis, noted that the Minister’s delegate did not “reverse” the PRRA officer’s decision and that “the reasons provided by the officerare only an assessment which the Minister’s delegate has to consider in his final decision, but which he or she is not bound by”.

Thedelegate made his own decision as required under the IRPA on the basis of the evidence before him at the time of his decision. The Courtstated that the applicant was attempting to give the PRRA risk assessment “weight that it does not have”. [76] Justice Shore stated the following about the scheme of the relevant provisions: [60] In general, any foreigner who is subject to a removal order that is in force and who is not named in a security certificate or adanger opinion may apply to the Minister for protection (subsection 112(1) of the IRPA). If a foreigner, like Mr.

Placide, is described insubsection 112(3) of the IRPA, refugee protection may not result (subsection 112(3) in limine). Consideration of such a person'sapplication, in contrast to that of a regular application, which is considered on the basis of sections 96 to 98 of the IRPA, is -- in asituation such as Mr. Placide's -- on the basis of the grounds for protection set out in

section 97 and the nature and severity of actscommitted by the applicant or the danger that the applicant constitutes to the security of Canada (subparagraph 113(d)(

i) of the IRPA). [61] Before making a decision, the Minister's delegate must take into consideration the written assessments of the groundsfor protection described in

section 97 and the factors set out in subparagraph 113(d)(

i) of the IRPA (subsection 172(1) of the IRPR). Thetwo assessments are disclosed to the applicant, who has 15 days to file written submissions with the Minister's delegate. If the delegateconcludes that the applicant is not described in

section 97, he or she is not required to take the factors set out in subparagraph 113(d)(i)into consideration and can reject the application for refugee protection (subsection 172(4) IRPR). This process is in fact a codification ofSuresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1 , [2002] 1 S.C.R. 3, 2002 SCC 1, at paras. 122-123). [62] Finally, if, however, the Minister's delegate concludes that the applicant would be subjected to a risk described in

section 97, heor she must assess the factors set out in subparagraph 113(d)(

i) and, if applicable, conduct a balancing exercise to determine whether theapplicant's situation is exceptional enough to warrant his removal to a country where torture is used (paragraph 113(

d) of the IRPA;Suresh, above, at paras. 76-79; Charkaoui (Re), 2005 FC 1670 , [2006] 3 F.C.R. 325, 2005 FC 1670, at paras. 12-13)). [63] In this context, it is obvious that the PRRA officer who conducted the assessment, dated November 16, 2007, merely gaveadvice or made a suggestion that is not binding upon the Minister's delegate. In accordance with

section 6 of the IRPA, the Minister didnot delegate to the PRRA officer but to National Headquarters only the power to dispose of an application for protection described insubsection 112(3) of the IRPA (Immigration Manual, ch. 1L3, CIC Instrument of Designation and Delegation, Item 48 (Delegated

authority - Form an opinion whether, in relation to the eligibility of a claim under subsection 101(2) of the Act, a person who isinadmissible on grounds of serious criminality by reason of a conviction outside Canada is a danger to the public in Canada.) This isdelegated to National Headquarters). [64] In fact, case law requires that the delegate make the decision himself and give reasons for it: "the reasons must also emanatefrom the person making the decision, in this case the Minister, rather than take the form of advice or suggestion" (Suresh, above, at para.126). The process is similar to that of Thomson v.

Canada (Deputy Minister of Agriculture), (SCC), [1992] 1 S.C.R.385, at pages 399 to 401, in which the Court ruled that the holder of a power who receives a recommendation is not required to follow it(case law has several similar examples: Jaballah (Re), 2004 FCA 257 , [2005] 1 F.C.R. 560, 2004 FCA 257, at paras. 17-22(PRRA; obiter); Robinson v. Canada (Canadian Human Rights Commission) reflex, (1995), 90 F.T.R. 43, 52 A.C.W.S. (3d) 1098, atpara. 23; Jennings v.

Canada (Minister of Health) reflex, (1995), 97 F.T.R. 23, 56 A.C.W.S. (3d) 144, at paras. 31-32, aff'd by (1997),211 N.R. 136, 56 A.C.W.S. (3d) 144, leave to appeal to S.C.C. refused, see [1997] S.C.C.A. No. 319; Abdule v. Canada (Minister ofCitizenship and Immigration) (1999), 176 F.T.R. 282, 92 A.C.W.S. (3d) 578 at para. 14). [65] Otherwise, the Minister's delegate would not really be exercising the power conferred on him. The Minister's delegate wouldmerely be approving assessments administratively and giving them force of law.

This would essentially give PRRA officers a decision-making power which the Minister decided to delegate to another officer in the public service. [Emphasis added] [77] Based on Placide, the PRRA Officer’s risk assessment is merely advice or a suggestion which does not bind the Minister’sDelegate, who is permitted to make her own decision with reasons. Further, any balancing of the risk and security assessments onlycomes into play if the Minister’s Delegate determines that a

section 97 risk exists. [78] The Applicant submits that this Court should not follow Placide as it was based on a wrong

section of the Instrument ofDesignation and because the Court in that case failed to appreciate the PRRA officer’s opinion as being formed before the Minister’sdelegate’s opinion. [79] As to the first point, I believe the Applicant refers to paragraph 63, above, which made reference, in parenthesis, to theImmigration Manual, ch. 1L3, CIC Instrument of Designation and Delegation, Item 48. While the reference to Item 48 may have beenmisplaced (the correct reference possibly being

section 68), in my view this is inconsequential. The relevant point is that in accordancewith

section 6 of the IRPA, the Minister did not delegate to the PRRA officer, but only to National Headquarters, the power to dispose ofan application for protection of a person described in subsection 112(3) of the IRPA, which is also the case in this matter (IRPA, section6, CIC Instrument of Delegation Item 68).

In any event, Placide still stands on the basis of its reliance on the other decisions described inparagraph 64 which indicate that delegates are to make the decision themselves and give reasons. [80] As to the second point, I do not believe that this has merit or that the Court in Placide failed to appreciate that the PRRAofficer’s opinion was formed before the Minister’s delegate’s opinion. To the contrary, the Court set out the legislative process in detailas well as a chronology of the facts.

This demonstrates that the Court was well aware of when the PRRA officer’s decision was made. [81] Placide was also followed by Justice Hughes in Delgato, above. In that case, the Board allowed the applicant’s wife’s claimfor refugee protection but found that the applicant was excluded by reason of

Article 1F(

a) of the Convention. The applicant sought aPRRA and the PRRA officer determined that the applicant would be at risk if he were to be removed to Angola. However, a CBSAsecurity assessment concluded that the applicant was complicit in crimes against humanity.

The Minister’s delegate rejected theapplicant’s application for a stay of removal and concluded that, on balance, there was insufficient evidence to demonstrate risk to life orthat the applicant would face more than a mere possibility of cruel and unusual treatment and punishment or torture in Angola. [82] On judicial review of that decision, the applicant advanced a similar argument to that made in this case. Specifically, thatunder the scheme of the IRPA and the IRPA Regulations, the risk decision should have been made by a PRRA officer and not theMinister’s delegate.

Justice Hughes relied on Placide, above and found that the Minister’s delegate makes the final decision on therestricted PRRA application. [83] I would also note that in the earlier decision of Muhammad, above, Justice Boivin relied on Placide in finding that theMinister’s delegate was entitled to conduct her own research because she was not engaging in a mere review of the PRRA officer’sassessment and need not limit herself to the information considered at that level. [84] Based on the foregoing, it is my view that the Minister’s Delegate makes the final decision on the restricted PRRA applicationand was not bound by the PRRA Officer’s risk assessment.

Thus, whether reviewed on the correctness or reasonableness standard, therewas no reviewable error. Issue 3: Were the principles of procedural fairness violated, more specifically: (

i) Is the structure of the decision-making process pursuant to section 112(3) independent and impartial;and, is the Minister’s Delegate an independent decision-maker? (ii) Was there a reasonable apprehension of bias or an abuse of process? Applicant’s Position (

i) Structural Independence and Impartiality, Individual Independence [85] The Applicant submits that the Minister’s Delegate lacks the necessary independence to make an assessment on a risk of

torture.

Section 7 of the Charter is engaged when one can be deported to a country to face a risk of torture, therefore, the principles offundamental justice require that the Applicant is entitled to have his risk assessed by an independent and impartial tribunal. [86] The Applicant refers to Canadian Pacific Ltd v Matsqui Indian Band, (SCC), [1995] 1 SCR 3 [MatsquiIndian Band] and Valente v The Queen, (SCC), [1985] 2 SCR 673 [Valente] which set out the test for independence andimpartiality as including three criteria being security of tenure, financial security and administrative control.

These criteria apply equallyto tribunals although the level of independence can vary. Judicial independence can be both individual and institutional (Provincial CourtJudges Association of New Brunswick v New Brunswick et al, 2005 SCC 44, [2005] 2 SCR 286).

The requirements of independence andimpartiality will vary depending on the nature of the administrative decision (Imperial Oil v Quebec, 2003 SCC 58, [2003] 2 SCR 624;Bell Canada, above). [87] The Applicant states that the Minister’s Delegate’s position does not possess the hallmarks of independence required to satisfya reasonable person that she holds the requisite degree of independence or impartiality for the following reasons: • The Minister’s Delegate is situated in the Case Management Branch (CMB) of CIC which deals with sensitive cases; • The Case Review division provides support and advice on cases to senior management and the Minister of CIC; • The CMB has ministerial advisors who report directly to the Minister; • The CMB participates in litigation management; • The Manager of the CMB, who is the Manager to whom the Minister’s Delegate reports, is also involved in managing sensitivehigh profile cases; • The Manager meets regularly with the delegates to discuss issues related to their cases; • There is no independent scheduling system and no effort is made to insulate delegates from other functions of the CMB; and • The intermingling of the Minister’s Delegate’s function with the other CMB functions undermines the perceptions that she is anindependent and impartial decision-maker. [88] The Applicant submits that the fact that the Minister’s Delegate is selected through a competition does not make herindependent.

Further, in high profile cases where the government has invested political capital in removing individuals from Canada,situating the decision-maker close to the Minister does not create an image that she is independent and impartial. [89] In order to assess whether there is institutional impartiality, the structure for the decision-making process and the decision-makers chosen must be such that they would be perceived by a reasonable person reviewing the matter objectively to be actingimpartially.

In the context of security certificate cases decided by Minister’s delegate’s who almost always found that the applicantfaced no risk, the findings were overturned by this court as being unreasonable. [90] The Applicant submits that while in Ocean Port v British Columbia, 2001 SCC 52, [2001] 2 SCR 781 [Ocean Port], theSupreme Court concluded that, absent Charter considerations, the legislature is free to craft a structure for administrative tribunals, itacknowledged that the Charter may require a more independent structure. [91] The Applicant submits that although this Court has held that a PRRA officer has the requisite level of independence from theMinister to objectively decide risk, this was based on fixed term tenure and such an officer is not as close to the Minister’s office as hisdelegate. [92] The Applicant states that the test for independence and institutional impartiality requires both the existence of institutionalstructures that provide sufficient independence and impartiality and the impartiality of decision-makers, both of which were not met inthese circumstances. (ii) Reasonable Apprehension of Bias or Abuse of Process [93] The Applicant submits that a reasonable and informed person, viewing this matter realistically and practically, would believethat the Minister’s Delegate is incapable of being impartial in her assessment of the Applicant’s restricted PRRA application. [94] The Applicant submits that both Ministers concerned, as well as CBSA, have a direct and personal interest in the outcome ofhis case because of its implications for the CBSA wanted list.

These parties have invested significant political capital in the list and wereat the time of the Decision looking to expand the criteria for inclusion. If the Applicant was found to be at risk as a consequence of beingplaced on the list, this would be embarrassing to the government as it would be counter-productive to its stated goals. [95] The Applicant submits that this interest is further evidenced by Minister Kenney’s many public statements and commentsregarding the CBSA wanted list.

The Minister defended the list in the face of criticism that it violates fairness and is ineffective as it mayexpose individuals to risk. The present case is distinguished from most of the case law because the Minister has referred to the Applicantspecifically and to the CBSA’s list on which he was named (Bertillo v Canada, [1994] FCJ No 1617 (TD)(QL); Dunova v Canada,[2010] FCJ No 511 (TD)(QL)[Dunova]; Cervenakova v Canada, 2010 FC 1281 , [2010] FCJ No 1591 (TD)(QL)[Cervenakova]). The Applicant was also closely monitored by Ministers and senior officials.

The Manager of Case Managementintervened in an unprecedented fashion to expedite the decision-making process from six months to eight weeks. [96] Therefore, given the absence of insulation between the decision-maker and the Minister, and given the interest in the CBSAwanted list and the close proximity of the decision-maker to the Minister, there was a reasonable apprehension of bias.

Respondent’s Submissions (

i) Structural Independence and Impartiality, Individual Independence [97] The Respondent agrees that

section 7 of the Charter is engaged. Therefore, the issue is whether the PRRA legislative schemecomports with the principles of fundamental justice.

This requires procedural fairness, which includes independence and impartiality.Tribunal members are presumed to be impartial (Suresh v Canada (Minister of Citizenship and Immigration), 2002 SCC 1 ,[2002] 1 SCR 3 at paras 44, 113; Bell Canada, above, at para 21; Charkaoui v Canada (Minister of Citizenship and Immigration), 2007SCC 9, [2007] 1 SCR 350 at paras 29, 32; Mugesera v Canada (Minister of Citizenship and Immigration), 2005 SCC 39, [2005] 2 SCR91 at para 13 [Mugesera]; EA Manning Ltd v Ontario Securities Commission, (ON CA); Finch v Assn of ProfessionalEngineers & Geoscientists (BC), (BC CA)). [98] The Respondent submits that there must be an actual breach of natural justice or procedural fairness to trigger judicial reviewand that an apprehended lack of independence is insufficient to justify intervention (Ellis-Don Ltd v Ontario (Labour Relations Board),2001 SCC 4, [2001] 1 SCR 221 at paras 34, 49 [Ellis-Don]).

Independence and impartiality are related but “separate and distinct valuesor requirements” (Valente, above; at p 685; Bell Canada, above, at para 18). The “criteria for independence is not absence of influencebut rather the freedom to decide according to one’s conscience and opinions” (Tremblay v Quebec (Commission des affaires sociales), (SCC), [1992] 1 SCR 952). [99] The decision-maker must appear impartial in the objective view of a reasonable and well-informed observer (Imperial Oil Ltdv Quebec (Minister of the Environment), 2003 SCC 58 , [2003] 2 SCR 624 at para 20).

The test for reasonable apprehension ofbias is whether or not an informed person, viewing the matter realistically and practically and having thought the matter through, wouldthink it more likely than not that the decision-maker would unconsciously or consciously decide an issue unfairly (Committee for Justiceand Liberty et al v National Energy Board et al, (SCC), [1978] 1 SCR 369 at 394 [Committee for Justice]).

The burden ofproof is on the party alleging a real or apprehended breach of the duty of impartiality (Mugesera, above, at para 13), the threshold is ahigh one (R v S (RD), (SCC), [1997] 3 SCR 484 at para 111-113 [R v S(RD]) and the grounds for the apprehensionas well as the evidence to support it must be substantial (Committee for Justice, above, at p 394; Say, above, at para 22). [100] As to institutional bias, the Applicant must demonstrate an apprehension of bias in a “substantial number of cases” (R v Lippé, (SCC), [1991] 2 SCR 114 at 141 [Lippé]; Matsqui, above).

The mindset of a reasonable person is not to be equated withthe mindset of either a losing party or the “unduly suspicious” (Canada (Minister of Citizenship and Immigration) v Huntley, 2010 FC1175 at paras 225-259; Geza v Canada (Minister of Citizenship and Immigration) 2006 FCA 124). Further, substantial deference is owedto the appropriate organization of public servants devoted to the administration of the vast range of responsibilities of the government(Say, above, at para 22).

Absent evidence to the contrary, public servants are presumed to be independent and impartial (Dunova, above;Mohammad v Canada (Minister of Employment and Immigration), (FCA), [1989] 2 FC 363 (FCA) [Mohammad]). [101] On the question of institutional independence, the Respondent submits where an applicant is impugning the independence orimpartiality of a decision-maker, the onus is on the applicant to prove the allegation and not on the Minister to disprove it (Huntley,above, at paras 275-278).

Here, the Applicant has failed to adduce sufficient evidence to prove that the Minister’s Delegate wasinsufficiently independent. (ii) Reasonable Apprehension of Bias or Abuse of Process [102] The Respondent asserts that the evidence establishes that the Minister’s Delegate is adequately insulated from any externalpressures, has an obligation to ensure there is no bias in decision-making, makes her own decisions, and works for CIC and not forCBSA.

The Respondent made lengthy submissions summarizing the evidence in support of this position. [103] As to the February 3, 2012 meeting between CBSA and CIC, the Respondent submits that even if it could be characterized asan attempt to influence the final outcome of the Decision, what transpired at the meeting was never communicated to the Minister’sDelegate. The evidence is that Ms. Lavergne expressed her concerns to Mr. Dupuis. These concerns may have been based on amisunderstanding of the restricted PRRA process and potential lack of oversight of a junior officer. Mr. Dupuis explained that process toher.

As to Ms. Lavergne’s expressed concern about the impact of the positive PRRA assessment on CBSA’s enforcement mandate, theRespondent submits that this is to be expected in the circumstances surrounding the new policy initiative. [104] The Respondent submits that the Applicant’s attempt to demonstrate that CBSA’s interest in maintaining the wanted list led itsofficials to attempt to influence the process is without basis.

While a positive decision for the Applicant could have implications, theevidence is that it would not have undermined the entire program. [105] The Respondent submits that there was never an explicit attempt to try to influence Mr. Dupuis or the Minister’s Delegate or toinfluence the ultimate outcome. Ms. Kramer’s feeling or intuition about the outcome of the meeting on the ultimate decision should beaccorded little weight in light of the evidence that the meeting intended to clarify procedural matters.

There was no factual basis tosupport her intuition. [106] The Respondent submits that as to the communication from the Minister’s Office, this was simply a request for a file statusupdate for the High Profile Case List communications document. There is nothing to suggest any interaction between the Minister’sDelegate and the Minister’s Office regarding the substance of the Decision. The evidence of the Minister’s Delegate was that she did notconsider the communication to be an attempt to influence her decision.

Direct communications with the Minister’s Office, such as mediarelations, question period notes and other requests for information, are handled by other officials in her work unit and are outside thescope of the Minister’s Delegate’s functions. [107] The Respondent submits that simply because the Minister’s Delegate may have been aware of the high profile nature of theApplicant’s case, this does not demonstrate that her Decision was in any way subject to external influence. She is employed in a unitwhich works on such cases and it is not unusual.

Her evidence was that she did not feel any pressure to decide the Applicant’s case in a

particular way as a result of the Minister’s public statements. [ 108 ] The Respondent submits that the requisite link has not been established between the conduct alleged to be inappropriate, the meeting, and an ability to influence the outcome of the Decision. Even if the first restricted PRRA decision was flawed by reason of interference in the form of the meeting, this would have been fully addressed when this Court sent that matter back for redetermination.

The Decision under review is the second restricted PRRA decision, thus the Applicant’s challenge is a collateral attack on the first restricted PRRA decision as there was no similar meeting prior to the determination on May 17, 2013. [ 109 ] The Respondent submits that this Court has already found that a Minister’s delegate is capable of arriving at an independent decision and deciding a PRRA application impartially ( Sing , above, at paras 33-37 ).

Even if the Director, within the scope of her position, advises the Minister of certain matters, this is insufficient to establish a lack of independence ( Sheriff v Canada (Attorney General) , 2006 FCA 139 , [2007] 1 FCR 3). [ 110 ] The Respondent submits that grounds for a perception of a lack of independence and impartiality must be “substantial” ( Say , above).

In Say , this Court considered whether the transfer of the PRRA unit from CIC to the Minister of Public Safety and Emergency Preparedness gave rise to a reasonable apprehension of institutional, systemic or structural bias with respect to processing PRRA applications. It found that a fully informed person would not have a reasonable apprehension that bias would infect decision-makers in the PRRA program in “a substantial number of cases” . Therefore, a decision-maker being part of a government branch is insufficient to support institutional bias.

Summary of Relevant Evidence [ 111 ] It is helpful at the outset to briefly summarize some of the more relevant evidence forming part of the record in this matter: (

i) Minister’s Delegate and CMB [ 112 ] The Minister’s Delegate was hired as a Director, Case Determination, following an internal public service competition process. [ 113 ] Her affidavit evidence was that she was appointed with indeterminate status by CIC in accordance with the PSEA. The job description for the Minister’s Delegate calls for “extensive experience making recommendations and/or decisions under the Immigration and Refugee Protection Act [IRPA]” . [ 114 ] The Minister’s Delegate is situated in the CMB office, which office is divided into the Case Review division and Litigation Management division.

The stated raison d’être of the CMB is “effective management of High Profile, complex, contentious & sensitive cases.” The Case Review division provides support and advice on cases to senior management and the Minister of CIC. It also reviews and manages contentious, complex, high profile and sensitive immigration cases, provides guidance to CIC officers, and collaborates with CIC and CBSA. [ 115 ] The Minister’s Delegate reports to Mr. Dupuis, the Director-General of the CMB, who in turn reports to the Associate Assistant Deputy Minister. Mr.

Dupuis would have regular meetings with the Directors to discuss operational matters and individual files. Mr. Dupuis stated that he had advised the Minister’s Delegates not to discuss their cases with him, that he has never discussed the contents of their decisions and that his practice is to emphasize to the Directors that their decisions are theirs alone. Mr. Dupuis also prepared the mid-year and year-end performance reviews for the Directors of case determination, which included the Minister’s Delegate. [ 116 ] Mr.

Dupuis confirmed that there are two ministerial advisers who are a part of the Case Review Branch and who report to him through their Director. They have a direct connection with the Minister’s Office. [ 117 ] The Minister’s Delegate’s affidavit evidence was that she was aware of the importance of maintaining the independence of a decision-maker and rendering an impartial decision, which was also emphasized in her employment training. CIC’s PRRA operational manual advises PRRA officers of their obligation to ensure that they are not, and do not appear to be biased when exercising their decision-making powers.

The Minister’s Delegate stated that her decisions are always her own and that, generally speaking, the only communications she has with Mr. Dupuis regarding a particular decision concerns who will assume carriage of a particular matter and the timing of the decision. However, she does from time to time consult with peers regarding a particular case, which includes general discussions of the facts and various aspects to be considered. She did not discuss the substance of her Decision in this case with Mr. Dupuis nor did he attempt to discuss it with her.

She also did not communicate with anyone from CBSA about her decision. [ 118 ] The only communication she had with senior officials was a status update regarding the timing of her Decision. She received an email which was forwarded to her from Mr. Dupuis. The email was from Heather Primeau, dated January 30, 2013, and the subject line was “Hpcl question” (Hpcl stood for “high profile cases list”). The email stated that “Kennedy has asked where we are at with the arshad Muhammad prra”. The Minister’s Delegate did not know what Kennedy’s role was but she knew he was with the Minister’s Office.

She stated that such questions occasionally occurred but that she did not have direct communications with Kennedy or the Minister’s Office and did not consider the email to be an attempt to influence her Decision. Mr. Dupuis confirmed that Heather Primeau was his director at Case Review and that “Kennedy” was Kennedy Hong who was in the Case Management Unit of the Minister’s Office.

He also confirmed that the Minster’s Delegate responded to him, providing an update on the status of the restricted PRRA. (ii) Interest in the CBSA Wanted List [ 119 ] With regard to the CBSA wanted list, the evidence establishes that there was considerable government interest in the list and that CBSA considered it to be an important new initiative. The evidence is that the federal government utilizes this list to locate individuals who are suspected war criminals.

The evidence also includes media coverage suggesting that a positive risk opinion might undermine the government’s efforts to remove the individuals who are on the list.

[120] When the wanted list was first established and publicized in July 2011, Minister Kenney stated that those who have beeninvolved in war crimes “arrive here by fraud, they will be identified, they will be located, and they will face the consequences”.

TheMinister further referred to individuals on the list as foreign criminals who had been captured and he thanked all those Canadians whocalled the tip line. [121] The evidence of the Minister’s Delegate was that she was aware of the CBSA wanted list program and had reviewed the newsreports and the Minister’s public statements submitted with the Applicant’s submission. She did not feel any pressure to decide the casein a particular way and political agendas do not interfere w

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