Prompt:
What administrative law principles are applied in this Federal Court of Canada decision?

Bhuchung v. Canada (Citizenship and Immigration) Court (s) Database Federal Court Decisions Date 2023-07-25 Neutral citation 2023 FC 1009 File numbers IMM-9385-21 Decision Content Date: 20230725 Docket: IMM-9385-21 Citation: 2023 FC 1009 Ottawa, Ontario, July 25, 2023 PRESENT: Mr. Justice Norris BETWEEN: XXX BHUCHUNG Applicant and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent JUDGMENT AND REASONS I. OVERVIEW [1] In May 2006, the applicant made a claim for refugee protection in Canada. The applicant identified himself as Bhuchung, a citizen of Tibet (China) who was born in Dhingri, Tibet, on July 1, 1967. He sought protection on the basis of his fear of persecution in China because of his Buddhist faith and his support for a free Tibet. On February 23, 2007, the Refugee Protection Division (RPD) of the Immigration and Refugee Board of Canada determined that the applicant is a Convention refugee and accepted his claim for protection. [2] In May 2019, the Minister of Public Safety and Emergency Preparedness filed an application with the RPD under section 109 of the Immigration and Refugee Protection Act, SC 2001, c 27 (IRPA) to vacate the decision allowing the applicant’s claim for refugee protection. The Minister alleged that the applicant is in fact Nanang (or Nawang) Chhokle Sherpa, a citizen of Nepal who was born in Kathmandu, Nepal, on June 24, 1975. The Minister contended that the decision allowing the claim for refugee protection should be vacated because the applicant obtained it by misrepresenting or withholding material facts relating to a relevant matter – namely, by identifying himself as Bhuchung, a citizen of Tibet (China), when in fact his true identity is Nanang (or Nawang) Chhokle Sherpa, a citizen of Nepal. [3] In a decision dated November 25, 2021, the RPD allowed the Minister’s application, deemed the applicant’s claim for refugee protection to be rejected, and nullified the February 23, 2007, decision of the RPD. [4] The applicant now applies for judicial review of this decision under subsection 72(1) of the IRPA. He contends that the decision should be set aside and the matter remitted for redetermination because the RPD breached the requirements of procedural fairness by refusing to accept the documentary evidence he submitted in response to the Minister’s application to vacate. On the other hand, the Minister submits that the RPD did consider the applicant’s evidence and reasonably determined on the whole of the record that the misrepresentation allegation had been established. [5] As I will explain in the reasons that follow, I agree with the applicant that, in determining whether the Minister had established the alleged misrepresentation, the RPD found that new evidence tendered by the applicant to establish his identity was inadmissible. I also agree with the applicant that this determination is based on an erroneous application of the principles governing the evidence that may be considered on an application to vacate. This reviewable error both undermines the reasonableness of the decision as a whole and effectively deprived the applicant of a meaningful opportunity to answer the Minister’s case, something he was entitled to as a matter of procedural fairness. This application for judicial review will, therefore, be allowed and the matter will be remitted for redetermination. II. BACKGROUND A. The Applicant’s Claim for Refugee Protection [6] When he sought refugee protection in 2006, the applicant identified himself in his Personal Information Form (PIF) as Bhuchung, a citizen of Tibet (China) who was born in Dhingri, Tibet, on July 1, 1967. According to his PIF narrative, the applicant left Tibet in 1993 because of the oppressive conditions there and went to Nepal. (At his RPD hearing, the applicant stated that in fact he had left Tibet by foot in late 1990 and arrived in Nepal in early 1991. He attributed the discrepancy with the information in his PIF to a translation error.) The applicant stated that he then lived and worked in Nepal without status. He travelled regularly to India, where he has family, including a wife and children. Since he travelled overland between the two countries, he was able to do so without proper identification. The applicant explained to the RPD that if he ran into any difficulties, he would simply bribe the border guards. Eventually the applicant came to fear that conditions for Tibetans in Nepal were deteriorating and decided to leave permanently. He left Nepal for Canada on April 26, 2006, arriving here the next day. [7] The applicant did not claim refugee protection on arrival; rather, he made an inland claim on May 12, 2006. [8] The applicant stated in his PIF that he travelled to Canada using a false Nepalese passport in the name of Sonam Lama. As originally submitted in June 2006, the applicant’s narrative stated: “My father had purchased a false Nepalese passport so that I could travel to the United States. I returned the document to the agent who made the document.” In December 2006, the applicant submitted a corrected version of the narrative in which, among other things, these two sentences were crossed out. At his RPD hearing, the applicant testified that in fact he had purchased the passport himself when he decided to leave Nepal. He also denied ever intending to travel to the United States. Once again, the applicant attributed the erroneous information in his narrative to translation errors. [9] The applicant testified that he produced the false Nepalese passport in the name of Sonam Lama when he arrived in Canada at Pearson International Airport in Toronto. He assumed he must have had a visa because otherwise he would not have been permitted to enter the country. The applicant denied having any document that would allow him to return to Nepal. According to the applicant, the only document he had showing his true identity was the Green Book he had obtained in Nepal. (A Green Book is an identity document issued by the Central Tibetan Administration to Tibetans in exile that documents their financial contributions to the organization. The applicant testified that he obtained his first Green Book in 1991, shortly after he arrived in Nepal from Tibet.) [10] The applicant took the position before the RPD that, since he did not have any legal status in Nepal, the sole country of reference for his refugee claim was China. [11] As noted above, on February 23, 2007, the RPD determined that the applicant is a Convention refugee. No reasons for the decision were given. B. The Minister’s Application to Vacate [12] Section 109 of the IRPA states: Applications to Vacate Annulation par la Section de la protection des réfugiés Vacation of refugee protection Demande d’annulation 109 (1) The Refugee Protection Division may, on application by the Minister, vacate a decision to allow a claim for refugee protection, if it finds that the decision was obtained as a result of directly or indirectly misrepresenting or withholding material facts relating to a relevant matter. 109 (1) La Section de la protection des réfugiés peut, sur demande du ministre, annuler la décision ayant accueilli la demande d’asile résultant, directement ou indirectement, de présentations erronées sur un fait important quant à un objet pertinent, ou de réticence sur ce fait. Rejection of application Rejet de la demande (2) The Refugee Protection Division may reject the application if it is satisfied that other sufficient evidence was considered at the time of the first determination to justify refugee protection. (2) Elle peut rejeter la demande si elle estime qu’il reste suffisamment d’éléments de preuve, parmi ceux pris en compte lors de la décision initiale, pour justifier l’asile. Allowance of application Effet de la décision (3) If the application is allowed, the claim of the person is deemed to be rejected and the decision that led to the conferral of refugee protection is nullified. (3) La décision portant annulation est assimilée au rejet de la demande d’asile, la décision initiale étant dès lors nulle. [13] The Minister alleged that the applicant is in fact Nawang Chhokle Sherpa, a citizen of Nepal born in Kathmandu on June 24, 1975. [14] To establish this allegation, the Minister provided evidence from the United States Department of State, Bureau of Consular Affairs suggesting that on March 29, 2006, the applicant had been refused a US visitor’s visa for which he had applied under the name Nawang Chhokle Sherpa using a Nepalese passport in this name issued in December 2001. [15] According to the Minister, the applicant had identified himself in the visa application as a teacher at the Porong Pema Chholing Monastery in Kathmandu. It appears that this person was part of a group of individuals who had identified themselves as monks associated with a monastery in Kathmandu who intended to visit the United States beginning on April 5, 2006. Contact telephone numbers in Clark County, Nevada, were provided with the application. The application was refused because the visa officer determined that the “local letter” – presumably a letter purporting to confirm the group’s connection to the local monastery – was fraudulent. [16] The Minister also provided evidence from the United States Department of State, Bureau of Consular Affairs that in June 2008 the applicant was denied a US visa for which he had applied under the name Bhuchung. It appears that US authorities linked this application to the 2006 visa application through a fingerprint match. The Minister relied on this link to establish that it was the applicant who had submitted the 2006 application, shortly before he came to Canada. [17] Finally, the Minister provided evidence from the Canada Border Services Agency (CBSA) that an individual named Nanang Chhokle Sherpa had entered Canada at Pearson International Airport on April 24, 2006, using a Nepalese passport. The Minister alleged that, despite the minor variation in the spelling of the name in the CBSA record compared to the US record, the CBSA record reflected the applicant’s arrival in Canada on the same passport as had been used in the 2006 US visa application and, further, that this confirmed that the applicant had arrived on April 24, 2006, and not on April 27, 2006, as the applicant had maintained in his refugee claim. [18] Relying on this evidence, the Minister’s position was that “it is more likely than not that the Respondent [the present applicant] is in fact Nanang Chhokle Sherpa (alias Nawang Chhokle Sherpa) and that he is genuinely a Nepalese citizen” (Minister’s Written Submissions, para 29). According to the Minister, “at all material times, the Respondent failed to notify the RPD panel of first instance that he was a national of Nepal, and also failed to advance a claim against Nepal” (Minister’s Written Submissions, para 35). The fact that the applicant had admitted to using one Nepalese passport (in the name of Sonam Lama, which he contended was fraudulent) but did not admit to having used another one (in the name of Nanang (or Nawang) Chhokle Sherpa) “suggests that he sought to keep it from the panel for a specific reason, namely that this is his genuine identity, and that he is a Nepalese citizen” (Minister’s Written Submissions, para 31). Thus, according to the Minister, the decision granting the applicant refugee protection should be vacated because the applicant had “obtained refugee protection as a result of directly or indirectly misrepresenting or withholding the material facts of his personal identity and nationality” (Minister’s Written Submissions, para 35). [19] For present purposes, it is important to underscore that the misrepresentation and withholding of material facts alleged by the Minister related to what the Minister maintained was the applicant’s actual personal and national identity and not simply to his failure to disclose his possession and use of the Nepalese passport in the name of Nanang (or Nawang) Chhokle Sherpa. [20] The Minister submitted that, as interpreted in Canada (Public Safety and Emergency Preparedness) v Gunasingam, 2008 FC 181 at para 7, subsection 109(1) of the IRPA has three elements: (a) there must be a misrepresentation or withholding of relevant facts; (b) those facts must relate to a relevant matter; and (c) there must be a causal connection between the misrepresenting or withholding on the one hand and the favourable result on the other. [21] The Minister submitted that all three elements were met here (Minister’s Written Submissions, para 38). First, there had been a misrepresentation or withholding of material facts – namely, the applicant’s actual identity and nationality. Second, those facts relate to a relevant matter: “identity is foundational to every refugee claim and one must advance a claim against all countries of nationality.” Third, there is a causal connection between the misrepresenting or withholding on the one hand and the favourable result on the other: “if identity is not established, the panel is not required to conduct further analysis before making a negative decision; also, failing to advance a claim against all of one’s countries of nationality will be fatal to the refugee claim.” [22] The Minister also submitted that the applicant is not a credible witness and that the misrepresentation “has tainted all information provided at the time of the first determination” (Minister’s Written Submissions, para 39). Consequently, under subsection 109(2), there is no other sufficient evidence considered at the time of the first determination to justify refugee protection. [23] The Minister therefore requested that the application be allowed and the applicant’s Convention refugee status be vacated. C. The Applicant’s Response [24] The RPD heard the Minister’s application on September 7 and October 7, 2021. In his testimony before the RPD, the applicant admitted that, contrary to what he told the RPD at his original hearing, he arrived in Canada on a Nepalese passport under the name Nanang Chhokle Sherpa. The applicant stated that this passport had been in his possession from 2001 until 2006. He admitted that he had also used it when he travelled between Nepal and India to visit family and when he applied for a US visa in 2006. The applicant maintained, however, that it was not a genuine passport, that he is not Nanang Chhokle Sherpa, and that he is not a citizen of Nepal. As he told the RPD at the original hearing, he is Bhuchung, a citizen of China (Tibet). [25] Prior to the hearing before the RPD, the applicant submitted the following documents: (a)A letter dated August 15, 2021, from the Office of the Municipal Executive, Kathmandu Metropolitan City, attesting that Mr. Bhuchung is not a citizen of Nepal; that he was born in Dhingri, Tibet, on July 1, 1967; that “there is no legally citizen named Nawang Chhokle Sherpa (DOB 1975-June-24)”; and that the passport issued under the name Nawang Chhokle Sherpa (No. 880198) “is not genuine and was illegally obtained.” (b)A letter dated August 10, 2021, from a Settlement Officer with the Tibetan Refugee Community Office in Kathmandu certifying that Mr. Bhuchung “was a bona fide Tibetan refugee and resident of Boudha, Kathmandu, Nepal.” (c)A letter dated August 11, 2021, from the Chief Coordinator of the Tibetan Refugee Welfare Office in Kathmandu certifying that Mr. Bhuchung “was a bona fide Tibetan residing at Boudha, Kathmandu, Nepal.”The letter also named the applicant’s parents and provided his Green Book number.The letter bore a photograph of the applicant that the applicant acknowledged at the hearing had been taken recently with his cell phone. (d)A letter dated August 13, 2021, from the Administration Manager of the Canadian Tibetan Association of Ontario stating that Mr. Bhuchung is a bona fide Tibetan.The letter provided the applicant’s Green Book number.The letter also stated that the applicant “takes active part in the various community events and programs and volunteers when ever he can.” (e)A letter dated August 24, 2021, from the Toepa Cultural Society of Ontario stating that Mr. Bhuchung is an active member of the society.The letter also describes ways the applicant has been active with the society.The applicant also provided a photo of himself with a Toepa dance group. (f)Membership cards for the Tibetan Canadian Cultural Centre in the name of Bhuchung Bhuchung bearing the applicant’s photograph. (g)Letters from two long time friends of the applicant in Canada attesting that he (Mr. Bhuchung) is Tibetan. (h)Letters from the Tibetan Reception Center in Kathmandu relating to the applicant’s mother and one of his daughters. [26] As the RPD recognized in its decision, the applicant had “tendered these documents in evidence in support of his Tibetan identity as Bhuchung.” The RPD also noted that these documents “were not presented in evidence before the original RPD panel.” The documents were marked collectively as No. 2 in the Consolidated List of Documents: “Disclosure – Personal Counsel August 30, 2021.” In the decision, the RPD refers to them as Exhibit 2. [27] At the hearing, the Minister’s position regarding this documentary evidence was two-fold. First, since the hearing of an application to vacate under subsection 109 of the IRPA is not a fresh hearing, the applicant was foreclosed from submitting evidence that was not before the original RPD panel. Second, even if this new evidence could be considered, most of the documents are likely fraudulent so their contents are unreliable. The Minister appears to have had concerns with the authenticity of the documents purporting to be from agencies in Nepal in particular. III. DECISION UNDER REVIEW [28] Looking first at the new identity evidence tendered by the applicant (the respondent before the RPD), the RPD states the following (at para 29): The panel finds persuasive the Minister’s submission that the panel’s role in determining an application under s. 109(1) is not to conduct a new hearing into the Respondent’s identity but rather, to re-weigh the evidence used to establish the Respondent’s Tibetan identity by the original RPD panel now that the Minister has evidence of his alternative Nepalese identity. The panel finds, therefore, that the Respondent cannot rely on new evidence of his purported identity to rebut his misrepresentation made before the original RPD panel. [29] Although the RPD member does not say so expressly here, there is no issue that this “new evidence” is the documents the member refers to elsewhere as Exhibit 2. [30] Earlier in the decision, after noting the Minister’s submission that some of the applicant’s new evidence is likely fraudulent and stating that these submissions were “persuasive”, the member stated that she finds “most persuasive” the Minister’s submissions regarding the “relevance and admissibility” of the new evidence “under either s. 109(1) or s. 109(2) of the IRPA” (Reasons for Decision, para 26). In particular, the Minister had contended that “the hearing of a vacation application under s. 109(1) of the IRPA is not a fresh hearing” and that the applicant “is foreclosed from submitting evidence that was not before the original panel” (Reasons for Decision, para 28). As set out above, the RPD agreed with this submission. [31] The RPD then finds, on a balance of probabilities, that the Nepalese passport confirms the applicant’s identity as Nanang Chhokle Sherpa (alias Nawang Chhokle Sherpa). The RPD was satisfied that this is a genuine passport because it had “withstood government scrutiny” when the applicant used it to travel between Nepal and India, when he used it to apply for a US visa in 2006, and when he used it to enter Canada. [32] The RPD next finds that, by not disclosing his true identity and status in his original claim for refugee protection and, instead, identifying himself as Bhuchung, a Tibetan citizen of China, the applicant had misrepresented or withheld material facts relating to relevant matters – namely, identity, country of reference, and his overall credibility. The RPD was also satisfied that there was a causal connection between the misrepresenting or withholding on the one hand and the favourable result on the other. The applicant obtained refugee protection on the basis of his status as a citizen of China/Tibet and his narrative of political and religious persecution as a Buddhist. The RPD finds that the material facts he misrepresented and withheld “are fundamental and call into question the credibility of his identity and his entire account for fearing persecution.” [33] Finally, the RPD finds under subsection 109(2) of the IRPA that it is not the case that the Minister’s application to vacate should nevertheless be rejected because there was other sufficient evidence considered by the original RPD panel to justify refugee protection. The material facts that the applicant misrepresented and withheld “are so fundamental as to call into question his identity and the credibility of his entire account for fearing persecution, such that there cannot be any remaining evidence to justify refugee protection” (Reasons for Decision, para 42). [34] The RPD therefore allows the Minister’s application. As a result, under subsection 109(3) of the IRPA, the applicant’s claim for refugee protection is deemed to be rejected and the decision of the original RPD panel granting refugee protection is nullified. IV. STANDARD OF REVIEW [35] The applicant frames this application for judicial review exclusively in terms of procedural fairness. The respondent, on the other hand, defends the RPD’s decision as reasonable. [36] These issues invoke different standards of review, with questions of procedural fairness being determined on a standard akin to correctness, the ultimate question being whether the applicant knew the case to meet and had a full and fair chance to respond (Canadian Hardwood Plywood and Veneer Association v Canada (Attorney General), 2023 FCA 74 at para 57, citing Canadian Pacific Railway Company v Canada (Attorney General), 2018 FCA 69 at paras 54 and 56). In the particular circumstances of this case, however, the two issues converge in the Court’s review of the RPD’s finding that the applicant’s new identity evidence is inadmissible. This is because, on the one hand, there is no issue that, if this finding is reasonable, it cannot have resulted in a breach of the requirements of procedural fairness. A full and fair chance to respond to the Minister’s case does not include the right to rely on inadmissible evidence. Nor, on the other hand, is there any issue that, if this finding is unreasonable, there must be a new hearing. It is of no moment whether this is because the finding resulted in a breach of procedural fairness (because it deprived the applicant of a full and fair chance to respond to the Minister’s case) or because this was not a harmless error (because it cannot be said that the outcome of the application to vacate would inevitably have been the same if the evidence had been admitted). Either way, the result on this application for judicial review is the same. [37] The determinative question, then, is whether the RPD’s finding that the applicant’s new identity evidence is inadmissible is unreasonable. [38] A reasonable decision “is one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker” (Canada (Citizenship and Immigration) v Vavilov, 2019 SCC 65 at para 85). A decision that displays these qualities is entitled to deference from the reviewing court (ibid.). For a decision to be reasonable, a reviewing court “must be able to trace the decision maker’s reasoning without encountering any fatal flaws in its overarching logic, and it must be satisfied that there is a line of analysis within the reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived” (Vavilov at para 102, internal quotation marks and citation omitted). On the other hand, “where reasons are provided but they fail to provide a transparent and intelligible justification [. . .], the decision will be unreasonable” (Vavilov at para 136). [39] The onus is on the applicant to demonstrate that the RPD’s decision is unreasonable. To set aside a decision on this basis, the reviewing court must be satisfied that “there are sufficiently serious shortcomings in the decision such that it cannot be said to exhibit the requisite degree of justification, intelligibility and transparency” (Vavilov at para 100). V. ANALYSIS [40] I stated above that the determinative question is whether the RPD’s finding that the applicant’s new identity evidence is inadmissible is unreasonable. This framing of the fundamental issue entails that I do not accept the respondent’s characterization of the RPD’s decision as one in which the member “indeed considered the new evidence provided by the Applicant, but found that it did not establish that he had not committed a misrepresentation or withholding of a material fact” (Respondent’s Further Memorandum of Argument, para 30). [41] As set out above, the RPD held that the applicant “cannot rely on new evidence of his purported identity to rebut his misrepresentation made before the original RPD panel” (Reasons for Decision, para 29). In saying this, the RPD clearly and unequivocally held that the documents referred to collectively as Exhibit 2 are inadmissible and, as such, could not be relied on by the applicant or, by necessary implication, be considered by the RPD. The RPD’s later statement that, in concluding that there had been a misrepresentation or withholding of material facts relating to the applicant’s identity, it had “carefully considered . . . the evidence presented and testimony adduced at the hearing” (Reasons for Decision, para 35) must be read in light of this earlier determination. Although the RPD did comment in passing on the lack of authenticity and reliability of some of the new evidence tendered by the applicant, that was not the basis on which the decision was made. [42] In my view, the RPD’s finding that the applicant’s new evidence of identity is not admissible is based on an erroneous application of the principles governing the evidence that may be relied on in response to an application to vacate under section 109 of the IRPA. To explain why this is so, it is necessary to provide some legislative and jurisprudential background. [43] Prior to the enactment of the IRPA, the vacation of a decision granting Convention refugee protection was dealt with under sections 69.2 and 69.3 of the Immigration Act, RSC 1985, c I-2 (as amended). Broadly speaking, subsection 69.2(2) of the Immigration Act corresponded to what is now subsection 109(1) of the IRPA and subsection 69.3(5) of the Immigration Act corresponded to what is now subsection 109(2) of the IRPA. [44] Subsection 69.3(5) of the Immigration Act stated: The Refugee Division may reject an application under subsection 69.2(2) that is otherwise established if it is of the opinion that, notwithstanding that the determination was obtained by fraudulent means or misrepresentation, suppression or concealment of any material fact, there was other sufficient evidence on which the determination was or could have been based. [45] The wording of this provision arguably left open the possibility that a party facing an application to vacate a decision granting Convention refugee protection could adduce new evidence to support the determination that they are a Convention refugee. However, in Coomaraswamy v Canada (Minister of Citizenship and Immigration), 2002 FCA 153, the Federal Court of Appeal held that the determination under subsection 69.3(5) of the Immigration Act cannot be based on new evidence (i.e. evidence that was not before the RPD in the first instance). After interpreting the meaning of the text of the provision in both English and French, the Court went on to state the following (at paras 15-16): Any possible doubt about the interpretation of subsection 69.3(5) is resolved by asking what legislative purpose would be served by affording to claimants who succeed in deceiving the Board an opportunity to submit additional evidence in an attempt to prove de novo at the vacation hearing that their claims were genuine. No such opportunity is available to either truthful or deceptive claimants whose claims for refugee status are dismissed. To allow a claimant who succeeded in deceiving the Board a second bite at the cherry by introducing new evidence at the vacation hearing would reward deception and remove an incentive to tell the truth. For these reasons, subsection 69.3(5) should be interpreted as limiting the material that the Board may consider at a vacation hearing to what was before it when it allowed the refugee claim. [46] This principle has now been included expressly in subsection 109(2) of the IRPA, which limits the RPD’s assessment under that provision to the evidence that was considered at the time of the first determination. [47] Coomaraswamy was also clear, however, that this limitation only applied to subsection 69.3(5) of the Immigration Act and not also to the determination under subsection 69.2(2) as to whether there had been misrepresentation. The Court stated (at para 17): Of course, when attempting to establish for the purpose of subsection 69.2(2) that a claimant made misrepresentations at the determination hearing, the Minister may adduce evidence at the vacation hearing that was not before the Board when it decided the refugee claim. Similarly, a claimant may adduce new evidence at the vacation hearing in an attempt to persuade the Board that she did not make the misrepresentations alleged by the Minister. (Emphasis added) [48] That this principle also applies to subsection 109(1) of the IRPA is confirmed by Canada (Public Safety and Emergency Preparedness) v Bafakih, 2022 FCA 18. In this decision, the Court endorsed the view stated in Canada (Minister of Citizenship and Immigration) v Wahab, 2006 FC 1554 at para 29, that the determination under this provision “involves consideration of all the evidence on file, including the new evidence presented by both parties” (Bafakih at para 40). The Court also cited paragraphs 16 and 17 of Coomaraswamy, quoted above. In short, while new evidence is not permitted under subsection 109(2) to uphold the original determination, it is permitted under subsection 109(1) to show that there was no misrepresentation. [49] Viewed against this jurisprudential backdrop, the RPD’s determination that the applicant could not rely on new evidence to establish that he is in fact Bhuchung and Tibetan is unreasonable. (Although the RPD did not have the benefit of Bafakih, this decision simply confirmed already well-established principles.) This is one of those circumstances where “it is quite simply unreasonable for [the] administrative decision maker to fail to apply or interpret a statutory provision in accordance with . . . binding precedent” (Vavilov at para 112). [50] The Minister alleged that the applicant had misrepresented his identity when he sought refugee protection. The applicant denied the allegation and maintained that he had identified himself correctly in the original proceeding before the RPD. To determine under subsection 109(1) of the IRPA whether the Minister had established the alleged misrepresentation, the RPD had to determine who the applicant is. This required a hearing in which all relevant evidence provided by the parties was considered. The RPD therefore erred in finding that its role was not to “conduct a new hearing into the Respondent’s identity but rather, to re-weigh the evidence used to establish the Respondent’s Tibetan identity by the original RPD panel now that the Minister has evidence of his alternative Nepalese identity.” [51] In precluding the applicant from relying on new evidence capable of confirming his identity, the RPD erroneously applied the restrictions applicable to subsection 109(2) of the IRPA to subsection 109(1). The applicant’s new evidence is relevant to his personal and national identity. It was responsive to the Minister’s allegation under subsection 109(1) that he misrepresented his personal and national identity when he identified himself in his original claim as Bhuchung and Tibetan when in fact he is Nanang (or Nawang) Chhokle Sherpa and Nepalese. If, as the applicant originally contended before the RPD, he is Bhuchung and Tibetan (and not Sherpa and Nepalese, as the now Minister alleged), then he did not misrepresent his identity, even if he did not disclose his use of the Nepalese passport. The applicant was entitled to adduce evidence relevant to this question and the RPD was required to consider it. Of course, whether the evidence the applicant adduced was sufficient to answer the Minister’s allegation is a separate question that the RPD did not address. [52] As I have already said, whether the RPD’s erroneous determination is viewed through the lens of reasonableness or the lens of procedural fairness, the result is the same: there must be a new hearing. VI. CONCLUSION [53] For these reasons, the application for judicial review is allowed. The decision of the RPD dated November 25, 2021, is set aside and the matter is remitted for redetermination by a different decision maker. [54] The parties did not propose any serious questions of general importance for certification under paragraph 74(d) of the IRPA. I agree that no question arises. JUDGMENT IN IMM-9385-21 THIS COURT’S JUDGMENT is that The application for judicial review is allowed. The decision of the Refugee Protection Division dated November 25, 2021, is set aside and the matter is remitted for reconsideration by a different decision maker. No question of general importance is stated. “John Norris” Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-9385-21 STYLE OF CAUSE: XXX BHUCHUNG v THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: TORONTO, Ontario DATE OF HEARING: January 25, 2023 JUDGMENT AND REASONS: NORRIS J. DATED: July 25, 2023 APPEARANCES: Joo Eun Kim For The Applicant James Todd For The Respondent SOLICITORS OF RECORD: Refugee Law Office Toronto, Ontario For The Applicant Attorney General of Canada Toronto, Ontario For The Respondent

Response:
## Analysis of Court Decision: Bhuchung  v. Canada (Citizenship and Immigration)

### Key Issues
ion as reasonable. [36] These issues invoke different standards of review, with questions of procedural fairness being determined on a standard akin to correctness, the ultimate qu

### Standard of Review
protection is nullified. IV. STANDARD OF REVIEW [35] The applicant frames this application for judicial review exclusively in terms of procedural fairness. The respondent, on the

### Legal Analysis
The court's analysis focuses on: t required to conduct further analysis before making a negative decision; also, failing to advance a claim against all of one’s countries of nationality will be fatal to the refugee claim.” [22] The Minister also submitted that the applicant is not a credible witness and that the misrepresentation “has tainted all information pr

### Precedential Value
This Federal Court decision has persuasive value for similar cases before the court and provides guidance to the Immigration and Refugee Board on the proper interpretation of law and procedural requirements. While not binding on other Federal Court judges, it establishes a precedent that will often be followed for consistency.


Prompt:
How does this Federal Court of Appeal of Canada decision affect immigration jurisprudence?

Shull v. Canada Court (s) Database Federal Court of Appeal Decisions Date 2023-05-17 Neutral citation 2023 FCA 107 File numbers A-33-22 Decision Content Date: 20230517 Docket: A-33-22 Citation: 2023 FCA 107 CORAM: RENNIE J.A. LASKIN J.A. MONAGHAN J.A. BETWEEN: DAVE SHULL Appellant and HIS MAJESTY THE KING Respondent Dealt with in writing without appearance of parties. Judgment delivered at Ottawa, Ontario, on May 17, 2023. REASONS FOR JUDGMENT BY: RENNIE J.A. CONCURRED IN BY: LASKIN J.A. MONAGHAN J.A. Date: 20230517 Docket: A-33-22 Citation: 2023 FCA 107 CORAM: RENNIE J.A. LASKIN J.A. MONAGHAN J.A. BETWEEN: DAVE SHULL Appellant and HIS MAJESTY THE KING Respondent REASONS FOR JUDGMENT RENNIE J.A. [1] The appellant appealed the Minister’s reassessments of his taxation years 2009-2014 to the Tax Court of Canada under that Court’s informal procedure. The appellant moved to strike the respondent’s reply to his amended notice of appeal. In reasons delivered from the bench, the Tax Court dismissed the appellant’s motion (2019-243(IT)I, per D’Arcy J.). The appellant now seeks to appeal to this Court the Tax Court’s order dismissing his motion to strike. However, no appeal to this Court lies from the Tax Court’s order. [2] Subsection 27(1.2) of the Federal Courts Act, R.S.C. 1985, c. F-7 (the Act) is clear: only a final judgment of the Tax Court in informal proceedings may be appealed to this Court. Subsection 2(1) of the Act defines a “final judgment” as “any judgment or other decision that determines in whole or in part any substantive right of any of the parties in controversy in any judicial proceeding.” The word “proceeding” in this definition refers to the very matter that is before the court, rather than a component of the matter, such as a motion (Ontario Federation of Anglers and Hunters v. Alderville Indian Band, 2014 FCA 145, 461 N.R. 327 at para. 21, leave to appeal to SCC refused, 36035 (12 March 2015) [Alderville]). [3] The order appealed from is not a final judgment. It does not determine any substantive right of either party, nor does it dispose of a “proceeding” as defined by this Court; for these reasons, the order falls outside the scope of subsection 27(1.2) of the Act, and the appeal is outside the scope of this Court’s jurisdiction. To elaborate, the order determines only a collateral, procedural right (the appellant’s right to have portions of the respondent’s pleadings excluded) without determining the substantive right that the underlying appeal seeks to assert (the appellant’s right to have the respondent’s reassessments vacated). Similarly, the motion at issue is not a “proceeding” for the purposes of this appeal, and is instead only a component of the appellant’s appeal from the respondent’s reassessments. [4] This Court has confirmed that an order of the Tax Court with these effects is interlocutory, as opposed to final, in nature (National Benefit Authority Corporation v. Canada, 2022 FCA 17, 2022 D.T.C. 5011 at paras. 10-11, leave to appeal to SCC refused, 40137 (18 August 2022), applying Alderville at paras. 21-24). I add that this Court has also repeatedly characterized orders resulting from motions to strike portions of the Crown’s reply as interlocutory (Heron v. Canada, 2017 FCA 229, 2017 D.T.C. 5130 at para. 1; Tuccaro v. Canada, 2016 FCA 259, 2016 D.T.C. 5117 at paras. 1 and 27; Cameco Corporation v. Canada, 2015 FCA 143, 474 N.R. 333 at para. 1). [5] The timing of the order further supports its characterization as interlocutory. Interlocutory decisions are typically made before the hearing of the matter as part of the resolution of a pre-hearing dispute; they are ordinarily not argued together, or otherwise intertwined, with the hearing on the merits which determines a party’s substantive rights (Sweet Productions Inc. v. Licensing LP International S.À.R.L., 2022 FCA 111, 2022 CarswellNat 2036 (WL Can) at paras. 27-28). The motion in this case was brought before the appeal on the merits in a step entirely separate from any determination of the appellant’s substantive rights. This degree of separation from the appellant’s original appeal simply confirms the conclusion that the order in issue is not a final judgment of the Tax Court. [6] I would therefore dismiss the appeal with costs. “Donald J. Rennie” J.A. “I agree. Laskin J.A.” “I agree. Monaghan J.A.” FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-33-22 STYLE OF CAUSE: DAVE SHULL v. HIS MAJESTY THE KING DEALT WITH in writing without appearance of the parties. REASONS FOR JUDGMENT BY: RENNIE J.A. CONCURRED IN BY: LASKIN J.A. MONAGHAN J.A. DATED: May 17, 2023 WRITTEN REPESENTATIONS BY: Dave Shull on his own behalf Spencer Landsiedel For The Respondent SOLICITORS OF RECORD: Shalene Curtis-Micallef Deputy Attorney General of Canada For The Respondent

Response:
## Analysis of Court Decision: Shull v. Canada

### Key Issues
(s) Database Federal Court of Appeal Decisions Date 2023-05-17 Neutral citation 2023 FCA 107 File numbers A-33-22 Decision Content Date: 20230517 Docket: A-33-22 Citation: 2023 FCA

### Standard of Review
Shull v. Canada Court (s) Database Federal Court of Appeal Decisions Date 2023-05-17 Neutral citation 2023 FCA 107 File numbers A-33-22 Decision Content Date: 20230517 Docket: A-33-22 Citation: 2023 FCA 107 CORAM: RENNIE J.A. LASKIN J.A. MONAGHAN J.A. BETWEEN: DAVE SHULL Appellant and HIS MAJESTY THE KING Respondent Dealt with in writing without appearance of parties. Judgment delivered at Ottawa, Ontario, on May 17, 2023. REASONS FOR JUDGMENT BY: RENNIE J.A. CONCURRED IN BY: LASKIN J.A. MONAGHAN J.A. Date: 20230517 Docket: A-33-22 Citation: 2023 FCA 107 CORAM: RENNIE J.A. LASKIN J.A. MONAGHAN J.A. BETWEEN: DAVE SHULL Appellant and HIS MAJESTY THE KING Respondent REASONS FOR JUDGMENT RENNIE J.A. [1] The appellant appealed the Minister’s reassessments of his taxation years 2009-2014 to the Tax Court of Canada under that Court’s informal procedure. The appellant moved to strike the respondent’s reply to his amended notice of appeal. In reasons delivered from the bench, the Tax Court dismissed the appellant’s motion (2019-243(IT)I, per D’Arcy J.). The appellant now seeks to appeal to this Court the Tax Court’s order dismissing his motion to strike. However, no appeal to this Court lies from the Tax Court’s order. [2] Subsection 27(1.2) of the Federal Courts Act, R.S.C. 1985, c. F-7 (the Act) is clear: only a final judgment of the Tax Court in informal proceedings may be appealed to this Court. Subsection 2(1) of the Act defines a “final judgment” as “any judgment or other decision that determines in whole or in part any substantive right of any of the parties in controversy in any judicial proceeding.” The word “proceeding” in this definition refers to the very matter that is before the court, rather than a component of the matter, such as a motion (Ontario Federation of Anglers and Hunters v. Alderville Indian Band, 2014 FCA 145, 461 N.R. 327 at para. 21, leave to appeal to SCC refused, 36035 (12 March 2015) [Alderville]). [3] The order appealed from is not a final judgment. It does not determine any substantive right of either party, nor does it dispose of a “proceeding” as defined by this Court; for these reasons, the order falls outside the scope of subsection 27(1.2) of the Act, and the appeal is outside the scope of this Court’s jurisdiction. To elaborate, the order determines only a collateral, procedural right (the appellant’s right to have portions of the respondent’s pleadings excluded) without determining the substantive right that the underlying appeal seeks to assert (the appellant’s right to have the respondent’s reassessments vacated). Similarly, the motion at issue is not a “proceeding” for the purposes of this appeal, and is instead only a component of the appellant’s appeal from the respondent’s reassessments. [4] This Court has confirmed that an order of the Tax Court with these effects is interlocutory, as opposed to final, in nature (National Benefit Authority Corporation v. Canada, 2022 FCA 17, 2022 D.T.C. 5011 at paras. 10-11, leave to appeal to SCC refused, 40137 (18 August 2022), applying Alderville at paras. 21-24). I add that this Court has also repeatedly characterized orders resulting from motions to strike portions of the Crown’s reply as interlocutory (Heron v. Canada, 2017 FCA 229, 2017 D.T.C. 5130 at para. 1; Tuccaro v. Canada, 2016 FCA 259, 2016 D.T.C. 5117 at paras. 1 and 27; Cameco Corporation v. Canada, 2015 FCA 143, 474 N.R. 333 at para. 1). [5] The timing of the order further supports its characterization as interlocutory. Interlocutory decisions are typically made before the hearing of the matter as part of the resolution of a pre-hearing dispute; they are ordinarily not argued together, or otherwise intertwined, with the hearing on the merits which determines a party’s substantive rights (Sweet Productions Inc. v. Licensing LP International S.À.R.L., 2022 FCA 111, 2022 CarswellNat 2036 (WL Can) at paras. 27-28). The motion in this case was brought before the appeal on the merits in a step entirely separate from any determination of the appellant’s substantive rights. This degree of separation from the appellant’s original appeal simply confirms the conclusion that the order in issue is not a final judgment of the Tax Court. [6] I would therefore dismiss the appeal with costs. “Donald J. Rennie” J.A. “I agree. Laskin J.A.” “I agree. Monaghan J.A.” FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-33-22 STYLE OF CAUSE: DAVE SHULL v. HIS MAJESTY THE KING DEALT WITH in writing without appearance of the parties. REASONS FOR JUDGMENT BY: RENNIE J.A. CONCURRED IN BY: LASKIN J.A. MONAGHAN J.A. DATED: May 17, 2023 WRITTEN REPESENTATIONS BY: Dave Shull on his own behalf Spencer Landsiedel For The Respondent SOLICITORS OF RECORD: Shalene Curtis-Micallef Deputy Attorney General of Canada For The Respondent

### Legal Analysis
The court's analysis focuses on: al appeal simply confirms the conclusion that the order in issue is not a final judgment of the Tax Court. [6] I would therefore dismiss the appeal with costs. “Donald J. Rennie” J.A. “I agree. Laskin J.A.” “I agree. Monaghan J.A.” FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-33-22 STYLE OF CAUSE:

### Precedential Value
As a Federal Court of Appeal decision, this ruling has significant precedential value and is binding on the Federal Court and administrative tribunals like the Immigration and Refugee Board. It establishes legal principles that must be followed in similar cases and provides authoritative interpretation of the relevant legislation.


Prompt:
Explain how this Refugee Protection Division decision from the Refugee Law Lab Reporter applies international refugee law:

2023 RLLR 117 Citation: 2023 RLLR 117 Tribunal: Refugee Protection Division Date of Decision: November 2, 2023 Panel: Sandeep Chauhan Counsel for the Claimant(s): Heather Cameron Purves Country: USA RPD Number: VC3-06662 Associated RPD Number(s): N/A ATIP Number: A-2024-00593 ATIP Pages: N/A DECISION INTRODUCTION [1] These are the reasons for the decision in the claim of [REDACTED] XXXX (the “claimant”), who is a citizen of United States of America (USA) and is claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).[1] [2] In rendering my reasons, I have considered the Chairperson’s Guidelines 9 on Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression. ALLEGATIONS [3] The following is a brief synopsis of the allegations put forth by the claimant in her Basis of Claim (BOC) form.[2] [4] She fears persecution at the hands of society and the authorities in USA due to her sexual orientation and gender identity. [5] The claimant is a 29-year-old, who was assigned female gender at birth. She never identified with her gender growing up and had an abusive upbringing, being subject to domestic violence. The claimant did not discuss her gender identity and sexual orientation with her parents, and only discussed this with her very close friends in 2017-2018. She prefers to use XXXX as her name, but her mother did not start addressing her as such much later, until recently. The claimant has lived in various states, including Kentucky, Florida, and California, but has not been provided with health supports – both mental and physical due to her gender identity and sexual orientation. She met with an accident in 2015 and has struggled with XXXX XXXX and XXXX XXXX since that time. The claimant has been requesting XXXX XXXX from the US government, but none has been forthcoming. Facing [REDACTED] and the prospect of being homeless, she travelled to Canada on XXXX XXXX, 2022 and sought refugee protection. DETERMINATION [6] I find that the claimant is a Convention refugee as she has established a serious possibility of persecution for the following reasons. ANALYSIS Identity [7] I find that the claimant’s identity as a national of USA is established, on a balance of probabilities, based on a certified copy of her American passport on file.[3] Nexus [8] For a claimant to be considered a Convention refugee, the well-founded fear of persecution must be by reason of one or more of the five grounds: race, religion, nationality, membership in a particular social group or political opinion. The persecution that the claimant fears in this case is because of her gender identity and sexual orientation. I find that she has established nexus to the Convention ground of membership in a particular social group: namely a claimant fearing persecution due to her sexual orientation. As such, her claim is being assessed under section 96 of IRPA and not under section 97. Credibility [9] When a claimant swears to the truth of certain allegations, this creates a presumption that those allegations are true unless there be reason to doubt their truthfulness. (Maldonado [1980] 2.F.C. 302 (C.A.)) In this case, the claimant testified in a detailed manner and explained how the life events unfolded for her in the US. She was quite emotional upon recounting her experiences. [10] Apart from her oral testimony, she has provided corroborating documentary evidence[4] to support her claim. I have no reason to doubt the genuineness of these documents and accept them as genuine. [11] Among other documents, the evidence includes diagnosis of the claimant’s medical problems, her housing dispute with the authorities in the US, and a XXXX XXXX report, which are consistent with her allegations. Therefore, based on the claimant’s straightforward testimony and the corroborating documentary evidence on file, I find her to be a credible witness and accept her allegations to be true on a balance of probabilities, including her subjective fear of returning to the US. Exclusion under Article 1E [12] The claimant got married to a citizen of the United Kingdom (UK) in or around 2015/2016. This raises the issue of exclusion under Article 1E as the claimant could have access to permanent residency in the UK based on spousal sponsorship. I find that this exclusion does not apply as the claimant never lived in the UK. [13] She accompanied her wife to England and lived there for a month in 2017 but did not find the environment suitable for her to relocate their permanently. She separated from her spouse in 2017 as theirs was a long-distance relationship. The claimant has had no communication with her wife since 2021. There was no sponsorship application filed by her wife in the UK for the claimant to move there permanently. [14] As well, objective evidence[5] submitted by the claimant’s counsel elaborates on the conditions under which a spouse of a UK citizen can have access to permanent residency. One of the conditions is that the couple has to have been in a common-law or married relationship for at least two years before the UK citizen can apply for the foreign spouse to reside permanently in the UK. Since the claimant’s relationship with her wife was a long-distance one and they ended up separating after less than two years of marriage, this would make the claimant ineligible for being sponsored as a permanent resident of the UK. [15] Therefore, I am satisfied that as of the date of hearing, the claimant was not a permanent resident of the UK and did not have access to such status in the past in that country. Well-Founded Fear of Persecution and Risk of Harm [16] In order for me to find that the claimant is a Convention refugee, I have to find that the objective evidence establishes that she will face a serious possibility of persecution if removed to the US. I find that the objective evidence supports her subjective fears and establishes a serious possibility of persecution for the claimant if she is forced to return to her country. My reasons are as follows. [17] A report by Human Rights Campaign Foundation states that: Sadly, 2022 has already seen at least 35 transgender people fatally shot or killed by other violent means. We say “at least” because too often these stories go unreported — or misreported. In previous years, the majority of these people were Black and Latinx transgender women. In 2021, the Human Rights Campaign tracked a record number of violent fatal incidents against transgender and gender non-conforming people — with 50 fatalities tracked. These victims, like all of us, are loving partners, parents, family members, friends and community members. They worked, went to school and attended houses of worship. They were real people — people who did not deserve to have their lives taken from them. [6] [18] The claimant has been rendered homeless and lost her employment several times due to discrimination in the workplace, and due to unfair and discriminatory treatment by the authorities. She has not had access to hormone therapy due to her gender identity. On the state of the LGBTQ community, Center for American Progress notes that: This comprehensive study of LGBTQ Americans raises important issues for policymakers and other leaders in American life to consider. With more than one-third of LGBTQ Americans reporting some form of discrimination in their personal and work lives, including more than 6 in 10 transgender Americans, clearly more needs to be done to ensure equal treatment in law and in practice for this community. The U.S. Supreme Court’s decision on June 15, 2020, extending employment protections to LGBTQ workers was a significant victory. However, ongoing discrimination in the workplace, in health care, and in public places needs to be better addressed through comprehensive legislation such as the Equality Act and with targeted resources designed specifically to help this community.[7] [19] In a report titled ‘State Attacks Against LGBTQI+ Rights’, Center for American Progress states that: Across the country, extremist anti-LGBTQI+ and anti-transgender groups are waging a coordinated campaign to restrict LGBTQI+ rights and target transgender youth specifically. According to the Center for American Progress’ partners at the Equality Federation, nearly 400 anti-LGBTQI+ bills were introduced across the country in 2021. In 2022, state legislatures are currently considering approximately 300 anti-LGBTQI+ bills. Unfortunately, legislators in multiple states—such as Alabama, Arizona, Florida, Iowa, Oklahoma, South Dakota, Utah, and others—have already enacted anti-LGBTQI+ bills since the start of 2022. In total, there are currently 14 states with laws categorically banning transgender students from participating in school sports consistent with their gender identity and four have adopted laws or taken executive action to ban or restrict access to medically necessary, best-practice gender-affirming care for transgender youth. These anti-LGBTQI+ attacks endanger the fundamental rights and well-being of LGBTQI+ communities. Not only does the passage of these measures directly harm states’ LGBTQI+ communities, but data also show that just the introduction of these kinds of bills —which are often fueled by hateful and misinformed rhetoric—adversely affects LGBTQI+ communities, especially youth. For example, data from The Trevor Project show that 66 percent of LGBTQ youth, including 85 percent of transgender and/or nonbinary youth, report that recent debates around state laws to restrict the rights of transgender people have negatively affected their mental health. Learn more about the proliferation of anti-LGBTQI+ bills and the 2022 legislative landscape for LGBTQI+ rights here. [8] [20] The objective evidence discussed above establishes that sexual minorities in the US face persecution not only from society but the authorities as well. States in the US are passing laws that infringe upon the rights of transgender persons. The claimant in this case has suffered from such discrimination and unfair treatment, being denied basic health care such as mental health therapy and access to XXXX XXXX. She has lost her employment, home, and left to deal with [REDACTED] on her own, without adequate support from the US authorities because she identifies herself as a non-binary gendered person. [21] Therefore, based on all the evidence before me, I find that the claimant will face a serious possibility of persecution if forced to go back to the US, especially since sexual minorities are persecuted in that country by both state and non-state actors. I find that the claimant’s fears are indeed well-founded. State Protection [22] I find that it would be objectively unreasonable for the claimant to seek the protection of the state of the US authorities in light of her particular circumstances. [23] States are presumed to be capable of protecting their citizens, except in situations where the state is in a state of complete breakdown.[9] However, this is a rebuttable presumption. [24] As discussed above, there are over 300 legislations currently being discussed that discriminate against the LGBTQ+ community. A lot of the states have already passed such legislation. As well, there is violence against anyone identifying as a transgender person. Therefore, given the objective evidence discussed in the preceding paragraphs that shows that states are enacting legislations or have enacted legislation against the LGBTQ+ community, I find that the US authorities are one of the agents of persecution. [25] Therefore, I find that the presumption of state protection has been rebutted in this case. Internal Flight Alternative (IFA) [26] I have analyzed whether a viable internal flight alternative exists for the claimant. [27] On the evidence before me, I find that there is a serious possibility of persecution for her throughout the US. The claimant has lived in several states and the treatment meted out to her as a member of the LGBTQ+ community has been similar. [28] Therefore, based on this reason and the ones similar to those in relation to that of state protection, I am satisfied that the claimant does not have a viable IFA in her home country. CONCLUSION [29] For the foregoing reasons, I find that the claimant is a Convention refugee under section 96 of IRPA. Therefore, I accept her claim. ——— REASONS CONCLUDED ——— [1] Immigration and Refugee Protection Act, S.C. 2001, c. 27. [2] Exhibit 2. [3] Exhibit 1. [4] Exhibit 4. [5] Ibid. [6] Exhibit 3, National Documentation Package, United States, 31 January 2023, tab 6.3: Fatal Violence Against the Transgender and Gender Non-Conforming Community in 2022. Human Rights Campaign Foundation. 2022. [7] Exhibit 3, National Documentation Package, United States, 31 January 2023, tab 6.2: The State of the LGBTQ Community in 2020: A National Public Opinion Study. Center for American Progress. Sharita Gruberg et al. 6 October 2020. [8] Exhibit 3, National Documentation Package, United States, 31 January 2023, tab 6.6: State Attacks Against LGBTQI+ Rights. Center for American Progress. Caroline Medina; Sharita Gruberg. 13 April 2022. [9] Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, at 725.

Response:
## Analysis of Refugee Decision: 2023 RLLR 117

### Key Issues
TQ Americans raises important issues for policymakers and other leaders in American life to consider. With more than one-third of LGBTQ Americans reporting some form of discriminat

### Legal Analysis
The decision analyzes refugee protection criteria by examining: on for the following reasons. ANALYSIS Identity [7] I find that the claimant’s identity as a national of USA is established, on a balance of probabilities, based on a certified copy of her American passport on file.[3] Nexus [8] For a claimant to be considered a Convention refugee, the well-founded fear of persecution must be by

### Implications for Immigration Practice
This decision provides guidance for refugee claimants on evidentiary requirements and credibility assessments. Legal practitioners should carefully document client narratives and address potential inconsistencies proactively. The case demonstrates the importance of thorough country conditions research and proper preparation of witnesses.


Prompt:
What compliance obligations are created by this Federal regulations from the Canadian government?

# Canada Industrial Relations Remuneration Regulations CRC, c 1013 Regulations Respecting the Remuneration and Expenses of Chairmen and Members of Industrial Inquiry Commissions and Conciliation Boards and of Conciliation Commissioners and Mediators Enabling authority: CANADA LABOUR CODE ## Short Title 1 [Repealed, SOR/2010-213, s. 1] ## Remuneration 2 [Repealed, SOR/2010-213, s. 1] 3 [Repealed, SOR/2010-213, s. 1] 4 [Revoked, SOR/90-701, s. 1]

Response:
## Analysis of REGULATIONS-FED: Canada Industrial Relations Remuneration Regulations

### Purpose and Context
This legislation establishes legal requirements relevant to immigration and refugee matters. It creates obligations for government officials, applicants, and other stakeholders in the immigration system. Understanding these provisions is essential for ensuring compliance with Canadian law in immigration contexts.

### Key Provisions
The document contains provisions related to immigration procedures, requirements, and enforcement mechanisms.

### Application to Immigration Cases
These regulations provide specific implementation details for broader legislative frameworks. Practitioners should ensure strict compliance with procedural requirements, timelines, and documentation standards. The regulations must be interpreted consistent with their enabling legislation and may be subject to challenge if they exceed the authority granted by the statute.


Prompt:
Analyze this Refugee Protection Division decision from the Refugee Law Lab Reporter and identify key legal issues:

2023 RLLR 110 Citation: 2023 RLLR 110 Tribunal: Refugee Protection Division Date of Decision: March 2, 2023 Panel: Olukunle Ojeleye Counsel for the Claimant(s): Aidan Connor Campbell Country: Peru RPD Number: VC2-10057 Associated RPD Number(s): VC2-10058 ATIP Number: A-2024-00593 ATIP Pages: N/A DECISION [1] MEMBER: This is the decision of the Refugee Protection Division in the claims of [REDACTED] XXXX, the principal claimant, and [REDACTED] XXXX, the minor claimant, who is now known as XXXX (ph), who are citizens of Peru. The date is March 2, 2023. The Panel has considered the testimonies and their evidence in these claims, and is ready to render a decision orally. The RPD heard these claims jointly pursuant to rule 55 of the rules. [REDACTED] XXXX was appointed as the designated representative for the minor child included in the claim, being [REDACTED] XXXX, who is now known as [REDACTED]. [2] Now, reaching his decision in these claims, the Panel reviewed and applied the Chairperson’s guideline 3, child refugee claimants: procedural and evidentiary issues, as well as Guideline line, proceedings before the IRB involving sexual orientation, gender identity and expression, and sex characteristics. The claimant claims refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act. The claimants’ allegations are fully set out in their Basis of Claim forms, as well as their attached narrative. To summarize briefly, the claimants fear harm in Peru due to the sexual orientation of the minor claimant. The minor claimant is a 17-year-old male Peruvian citizen who is transgender, while his mother, the principal claimant, is a 53-year-old Peruvian. [3] The minor claimant was born and assigned the female gender. He grew up as a girl until his secondary school days, when he discovered that he identifies as a male than a female. He began to wish he could escape his female body. He started to exercise to look masculine and to wear clothing that would hide his female features. He became alienated from the girls in school, finding him to be strange. His attempts to have a romantic relationship with the female classmate, XXXX (ph), ended up with him losing his closest friend. When XXXX’s parents found out that she and the minor claimant had been in a relationship, XXXX’s parents began to tell her that the minor claimant is bad influence from whom their daughter should be kept away. As a result, the minor claimant began to experience abuse, insults, and verbal assaults from other students. [4] In 2020, the minor claimant revealed his sexual identity to his parents, who initially felt shocked, but decided to embrace and support him as their only child. Afraid of the harm the minor claimant may face if his sexual identity became widely known, the parents decided that he should leave Peru for safety. The claimants arrived in Canada in XXXX 2022 for the minor claimant to pursue further education, with the principal claimant providing the (inaudible) support. A few months later, they were advised that their fears of returning to Peru could benefit from protection under the refugee process, and they decided to make a claim. Having considered the totality of the evidence, the Panel finds the claimants are Convention refugees pursuant to section 96 of the IRPA, as there exists a serious possibility of persecution should they return to Peru. The Panel finds that the claimants’ personal identities and nationalities as Peruvians have been established on a balance of probabilities by their testimonies as well as the copies of their Peruvian passports in Exhibit 1. [5] The Panel finds the claimants to be credible witnesses. They testified in a forthright manner and their were no material inconsistencies, omissions, or contradictions within their oral testimonies or between their oral testimonies and the other documents before the Panel. The minor claimant testified about when he discovered his sexual identity as well as the challenges he had faced. The principal claimant gave testimony about the persecution and discrimination the minor claimant had faced, as well as the lack of opportunity for him to access the needed therapy for him to be who he is. She testified as to how she and the minor claimant’s father have had to keep his sexual identity secret, not only because of the harm he could face, but also the rejection and the father would face from their relatives and the larger society, who would regard them as failing their parental duties. [6] In assessing the claimants’ credibility, the Panel also considered the documentary evidence provided at Exhibit 4. This included a letter of authorization from (inaudible) XXXX XXXX, the father of the minor claimant, providing consent for him to travel and reside in Canada with he principal claimant, (inaudible) of texts and social media messages between the minor claimant and friends, where he conversed about his sexual identity, saying, ” I do not want to be yelled at anymore,” “I do not want to suffer anymore,” “I am scared,” etcetera. And assessment report and treatment plan from the [REDACTED] XXXX XXXX in Richmond, BC underscoring the minor claimant’s gender identity, as well as the recommended therapy for him and transition, a copy of the [REDACTED] [REDACTED] [REDACTED] [REDACTED] XXXX XXXX. On a review of these documents, the Panel finds no valid reason to doubt the authenticity. The Panel assigns them significant weight as having probative value in substantiating his allegations. [7] Taking into consideration provisions of Guideline 9, proceedings before the IRB involving sexual orientation, gender identity and expression, and sex characteristics, in regards to the fluidity of sexual orientation, the Panel finds that based on the claimants’ words and testimonies the minor claimant has established on a balance of probabilities his profile as transgender and a sexual minority. The Panel finds that the minor claimant’s allegations have a nexus to the Convention ground of membership in a particular social group as a sexual minority, while the principal claimant’s allegations have a nexus to the Convention ground of membership in a particular social group as a family member and carer of a SOGIESC individual. The Panel therefore assessed the claimants pursuant to section 96 of the Act. [8] The principal claimant was asked to explain the risk faced by both claimants if they were to return to Peru. She stated that the family had to hide the sexual identity of the minor claimant to avoid harm in Peru, and that they could not do so for long. She testified that she fears rejection of family members as well as harassment and physical attacks if they were to return to Peru. Given that there are no serious credibility issues with respect to the claimant’s allegations, coupled with the documentary evidence set out below, the Panel finds that the claimants have established that sexual minorities and LGBTIQ2S persons currently face a level of violence, harassment, and discrimination that may result in harm in Peru. [9] Objective evidence indicates that while same-sex relationships are not criminalized in Peru, and that there has been some progress made in recent years to protect the rights of sexual minorities, serious problems do remains. According the NDP 6.1, it states that sex between consenting adults of the same sex are not penalized, but that LGBTIQ2S personals are generally negatively perceived by the conservative Peruvian society. They face discrimination because of their sexual orientation, and they may face acts of violence such as murder, rape, arbitrary arrest, and inhuman and degrading treatment in Peru. NDP 2.1 states that discrimination, harassment, and abuse of transgender individuals like the minor claimant, including by police and other authorities, was a serious problem in Peru. [10] The constitution does include a broad prohibition against discrimination, and individuals in Peru can file legal claimants of discrimination based on sexual orientation. However, there are few national laws that mention sexual orientation as an explicit category for protection, leaving room for interpretations that overlook the rights of sexual minorities. Guideline 9 further underscores the fact that the absence of laws that criminalize or discriminate against LGBTIQ2S individuals in the country does not signify a lack of discrimination in that country, nor does it indicate that state protection is available, and that laws of general application can be selectively applied and enforced against LGBTIQ2S individuals in a discretionary way that may amount to persecution. NDP 2.3 reports that there exists serious discrimination against sexual minorities in Peru, including (inaudible) on the grounds of sexual orientation or sexual identity or gender identity which created barriers to access to rights as healthcare, education, employment, and housing. It was reported that the state did not have effective mechanisms in place to deal with the problems and to protect the LGBTIQ2S population. The same report gave evidence of the societal attitude, where the president reported as being opposed to legalizing same-sex marriage. In a speech on the campaign trail, he said recognition of trans people was an idiosyncrasy that should be thrown in the garbage. He has also expressed opposition to including gender (inaudible) in the school curriculum. NDP 6.4 shows that 56 percent of the LGBTIQ2S population was afraid of expressing their sexual orientation, and 72 percent of these people fear being discriminated against or attacked because of their sexual orientation. [11] The claimants have testified that they are forced to hide the minor claimant’s sexual identity, and would have to conceal his sexual orientation if made to return to Peru. According to Guideline 9, having to hide one’s sexual orientation constitutes a serious interference with fundamental rights that may amount to persecution. The Panel finds that given the evidence of risk of violence and societal discrimination that sexual minorities like the minor claimant face in Peru, these conditions would compel the claimants to conceal the minor claimant’s sexual orientation in an attempt to protect him and the family members’ physical safety. Based on the totality of the evidence, the Panel finds that the claimants have demonstrated an objective basis for their subjective fear of persecution. The Panel finds that based on the minor claimant’s sexual orientation as transgender, and the principal claimant’s position as a mother who is providing emotional and psychological support to her child, considered by the larger society as (inaudible), the claimants face a serious possibility of persecution if they were to return to Peru. [12] The Panel has considered whether state protection would be available to the claimants if they returned to their country, and has concluded that it is not, for the following reasons. The claimants are required to approach the state if protection might be reasonably be forthcoming, or if it is objectively reasonable to have sought protection. However, there is no requirement risk one’s life seeking ineffective protection. According to objective evidence already cited, (inaudible) made by the police to protect sexual minorities, and the educate police officers on anti-discrimination regulations, there is still discrimination of LGBTIQ2S persons by law enforcement and providing protection against risk, and that law enforcement officers have been guilty of abuse against members of sexual minorities. The Panel therefore finds that on a balance of probabilities, the state would be unwilling or unable to provide adequate state production to the claimants if they were to return to Peru. The presumption of state protection is therefore rebutted in these claims. [13] The Panel also considered whether a viable internal flight alternative exists for the claimants in Peru. The Panel finds that the claimants would face a serious possibility of persecution throughout the country. In line with Guideline 9, which applies that an IFA is not viable for an individual if they must conceal their sexual identity in order to live in the suggested location, the Panel finds that there is no viable internal flight alternative for the claimants within their country. Consequently, for the reasons given, and upon consideration of the whole of the evidence, the Refugee Protection Division determines that [REDACTED] XXXX and [REDACTED] XXXX, who is now known as [REDACTED] XXXX, are Convention refugees as defined in section 96 of the Act. Accordingly, the Panel accepts their claims. ——— REASONS CONCLUDED ———

Response:
## Analysis of Refugee Decision: 2023 RLLR 110

### Key Issues
s: procedural and evidentiary issues, as well as Guideline line, proceedings before the IRB involving sexual orientation, gender identity and expression, and sex characteristics. T

### Legal Analysis
The decision analyzes refugee protection criteria by examining: it is not, for the following reasons. The claimants are required to approach the state if protection might be reasonably be forthcoming, or if it is objectively reasonable to have sought protection. However, there is no requirement risk one’s life seeking ineffective protection. According to objective evidence already cited, (i

### Implications for Immigration Practice
This decision provides guidance for refugee claimants on evidentiary requirements and credibility assessments. Legal practitioners should carefully document client narratives and address potential inconsistencies proactively. The case demonstrates the importance of thorough country conditions research and proper preparation of witnesses.


Prompt:
Explain how these federal regulations implement immigration legislation:

# Prince George Airport Zoning Regulations CRC, c 103 Regulations Respecting Zoning at Prince George Airport Enabling authority: AERONAUTICS ACT ## Short Title 1 These Regulations may be cited as the Prince George Airport Zoning Regulations. ## Interpretation 2 In these Regulations, *airport* means Prince George Airport, Prince George, in the Province of British Columbia; (aéroport) *airport reference point* means the point described in Part I of the schedule; (point de repère de l’aéroport) *approach surface* means an imaginary inclined plane, the lower end of which is a horizontal line at right angles to the centre line of a strip and passing through a point at the strip end on the centre line of the strip; (surface d’approche) *horizontal surface* means an imaginary horizontal plane located 150 feet above the assigned elevation of the airport reference point or an imaginary plane located 30 feet above the surface of the ground at any given point, whichever is the higher at that given point; (surface horizontale) *Minister* means the Minister of Transport; (ministre) *strip* means a rectangular portion of the landing area of the airport, 1,200 feet in width, on each of the runways designated as 05-23, 18-36 and 14-32, including those runways, especially prepared for the take-off and landing of aircraft in a particular direction; (bande) *transitional surface* means an imaginary inclined plane extending upward and outward from the outer lateral limits of a strip and its approach surface to an intersection with the horizontal surface or other transitional surfaces. (surface de transition) 3 For the purposes of these Regulations, the airport reference point is deemed to be 2,230 feet above sea level. ## Application 4 These Regulations apply to all lands, including public road allowances, adjacent to or in the vicinity of the airport, as more particularly described in Part II of the schedule. ## General 5 No person shall erect or construct, on any land to which these Regulations apply, any building, structure or object or any addition to any existing building, structure or object, the highest point of which will exceed in elevation at the location of the highest point any of the surfaces hereinafter set out that project immediately over and above the surface of the land at that location, namely, (a) a horizontal surface, the outer limits of which may be described as follows: COMMENCING at the Northwest corner of District Lot 2094; THENCE, Easterly along the North boundary of said District Lot 2094 to the Southwest corner of Lot A of Plan 2876; THENCE, Northerly and Westerly along the Westerly boundary of said Lot A of Plan 2876 to the Southerly limit of a road crossing aforesaid Lot A; THENCE, Easterly along the aforesaid Southerly limit to the West boundary of District Lot 955; THENCE, Northerly along the Westerly boundaries of said District Lot 955 and District Lot 6970 to the left bank of the Fraser River; THENCE, following Easterly along said left bank to an intersection with a Southerly production of the West boundary of District Lot 2062; THENCE, Northerly along said Southerly production to the right bank of the Fraser River; THENCE, Easterly along said right bank to the Southeast corner of the Northerly portion of Plan A-1444; THENCE, Northerly and Westerly along the boundary of said Plan A-1444 to the Easterly limit of the P.G.E. Railway right-of-way; THENCE, Northerly and Easterly along the last-mentioned Easterly limit and production thereof, to an intersection with the Westerly boundary of District Lot 2063; THENCE, Northerly along the last-mentioned Westerly boundary to the right bank of the Fraser River; THENCE, Easterly and Southerly along the last-mentioned right bank to an intersection with a Westerly production of the South boundary of District Lot 935; THENCE, Easterly along the said South boundary, and its productions, of District Lot 935 to an intersection with the West boundary of the East half of District Lot 954; THENCE, Southerly along the last-mentioned West boundary to the Northwest corner of the South half of the Northeast quarter of District Lot 954; THENCE, Easterly along the Northern boundary of the aforesaid South half of the Northeast quarter to the East boundary of District Lot 954; THENCE, Southerly along the last-mentioned East boundary and production thereof, to a production Westerly of the North boundary of Lot A, Plan 10697; THENCE, Easterly along the North boundary of the last-mentioned Lot A, and its Westerly production, to the Northeast corner of the last-mentioned Lot A; THENCE, Southerly along the East boundary of the last-mentioned Lot A to the Northerly boundary of District Lot 633; THENCE, Easterly along the said Northerly boundary of said District Lot 633 to the Northwest corner of the Northeast quarter of said District Lot 633; THENCE, Southerly and Easterly along the Westerly and Southerly boundaries of the Northeast quarter of District Lot 633 to the East boundary of District Lot 633; THENCE, Southerly along the said Easterly boundary of District Lot 633 and production thereof, to the Northeast corner of the West half of District Lot 634; THENCE, Southerly along the Easterly boundary of the said West half of District Lot 634 to the South boundary of said District Lot 634; THENCE, Southerly along the East boundaries of District Lots 1547, 1550 and 1550A to the Southeast corner of said District Lot 1550A; THENCE, Westerly along the Southerly boundary of said District Lot 1550A to a Northerly production of the Easterly boundary of the West half of the Northwest quarter of District Lot 1560; THENCE, Southerly along said Northerly production and continuing Southerly and Westerly along said Easterly and Southerly boundaries of said West half of Northwest quarter of District Lot 1560; THENCE, Northerly along the West boundary of West half of Northwest quarter of District Lot 1560 to an Easterly production of the Southerly boundary of Lot 20, Block 2, of District Lot 1561, Plan 934; THENCE, Westerly along the last-mentioned Southerly boundary and continuing Westerly along the Southerly boundaries, Lots 19 and 20 of said Block 2 of District Lot 1561, and production thereof, to the Southeast corner of Lot 10 of Block 1 of District Lot 1561, Plan 934; THENCE, Southerly along the East boundary, and its productions, of Block 4 of District Lot 1561, Plan 934 and Block 2 of District Lot 1569, Plan 942, to the Southeast corner of Lot 10 of last-mentioned Block 2 of District Lot 1569; THENCE, Westerly along the Southerly boundaries and productions thereof, of Lots 9 and 10, Block 2 of District Lot 1569, and Lots 9 and 10 of Block 1 of District Lot 1569, Plan 942, and the North half of the Northeast quarter of District Lot 1568, to Southwest corner of said North half of Northeast quarter of District Lot 1568; THENCE, Northerly along the Westerly boundary of said North half of Northeast quarter of District Lot 1568 to the North boundary of District Lot 1568; THENCE, Westerly along the Northerly boundaries of District Lots 1567 and 1568 to an intersection with the Southerly production of the Westerly boundary of Lot 91 of District Lot 1563, Plan 916; THENCE, Northerly along last-mentioned Southerly production and West boundaries of Lots 88, 89, 90 and 91 of District Lot 1563, Plan 916, to the Northwest corner of said Lot 88; THENCE, Westerly along the Northerly boundaries, and productions thereof of Lots 60, 67, 74 and 81 of District Lot 1563, Plan 916, to an intersection of the Easterly boundary of District Lot 750; THENCE, Northerly and Westerly along the Easterly and Northerly boundaries of said District Lot 750 to the Southwest corner of the East half of the Southwest quarter of District Lot 748; THENCE, Northerly along the West boundary of said East half of Southwest quarter of District Lot 748 to an intersection with the South boundary of Lot 1 of District Lot 748, Plan 11713; THENCE, Westerly and Northerly along the Southerly and Westerly boundaries of said Lot 1 of District Lot 748, Plan 11713 to the Northwest corner of Lot 1 of District Lot 748, Plan 11713; THENCE, Westerly and Northerly along the Southerly and Westerly boundaries of Lot 1 of District Lot 746, Plan 9183 to the Southeast corner of Lot 22 of Block 2 of District Lot 745, Plan 884; THENCE, Westerly along the Southerly boundaries of Lots 15, 16, 17, 18, 19, 20, 21 and 22 of Block 2 of District Lot 745 Plan 884, to the Southwest corner of said Lot 15 of District Lot 745 Plan 884; THENCE, Northerly along the Westerly boundaries, and productions thereof, of Lot 15, Block 2 of District Lot 745, and Lots 15 and 30, Block 1 of District Lot 745, Plan 884, to the Northwest corner of said Lot 15, Block 1 of District Lot 745, to an intersection with the Southerly boundary of District Lot 485; THENCE, Easterly along Southerly boundaries of District Lots 487 and 485 to the Southeast corner of said District Lot 487; THENCE, Northerly along the Easterly boundary of District Lot 487 to the Northeast corner of District Lot 487; THENCE, Easterly and Northerly along the Southerly boundary of District Lot 2157 to the point of commencement, (b) the approach surfaces abutting each end of the strip designated as 14-32 and extending outward therefrom, the dimensions of which approach surfaces are six hundred (600) feet on each side of the centre line of the strip at the strip ends and two thousand (2,000) feet on each side of the projected centre line of the strip at the outer ends, the said outer ends being two hundred (200) feet above the elevation at the strip ends, and measured horizontally ten thousand (10,000) feet from the said strip ends; the approach surfaces abutting each end of the strip designated as 05-23 and extending outward therefrom, the dimensions of which approach surfaces are six hundred (600) feet on each side of the centre line of the strip at the strip ends and six hundred (600) feet on each side of the projected centre line of the strip at the outer ends, the said outer ends being two hundred (200) feet above the elevation at the strip ends and measured horizontally ten thousand (10,000) feet from the said strip ends; and the approach surfaces abutting the end of the strip designated as 18-36 and extending outward therefrom, the dimensions of which approach surfaces are six hundred (600) feet on each side of the centre line of the strip at the strip ends and six hundred (600) feet on each side of the projected centre line of the strip at the outer ends, the said outer ends being two hundred and fifty (250) feet above the elevation at the strip ends, and measured horizontally ten thousand (10,000) feet from the said strip ends, and (c) the several transitional surfaces, each rising at an angle determined on the basis of a ratio of one (1) foot vertically for every seven (7) feet measured horizontally from the outer lateral limits of the strips and their abutting surfaces, as shown on Plan V.003 dated at Ottawa, February 7, 1967, of record in the Department of Transport at Ottawa.

Response:
## Analysis of REGULATIONS-FED: Prince George Airport Zoning Regulations

### Purpose and Context
This legislation establishes legal requirements relevant to immigration and refugee matters. It creates obligations for government officials, applicants, and other stakeholders in the immigration system. Understanding these provisions is essential for ensuring compliance with Canadian law in immigration contexts.

### Key Provisions
The document contains provisions related to immigration procedures, requirements, and enforcement mechanisms.

### Application to Immigration Cases
These regulations provide specific implementation details for broader legislative frameworks. Practitioners should ensure strict compliance with procedural requirements, timelines, and documentation standards. The regulations must be interpreted consistent with their enabling legislation and may be subject to challenge if they exceed the authority granted by the statute.