Date: 19991123 Docket: IMM-6313-98
Winnipeg, Manitoba, this 23`d day of November 1999 Present: The Honourable Mr. Justice Campbell
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
- and -
THE IMMIGRATION AND REFUGEE BOARD - APPEAL DIVISION, and PINDER SINGH BRAR,
Respondents
REASONS FOR ORDER AND ORDER
CAMPBELLJ.
[1] The issue in the present judicial review is whether the decision of the Immigration and Refugee Board, Appeal Division ("Appeal Division") dated November 24, 1998 discloses a reviewable error with respect to the finding made of equivalence between United States and Canadian legislation.
[2] It is uncontested that Mr. Brar entered the United States at Pembina, North Dakota, on August 2, 1995, and was granted admission into the United States after presenting to U. S. customs officials an Indian passport in the name of Gurjit Singh Sidhu and false Canadian landed immigrant papers.
Page 2
[3] As a result, Mr. Brar plead guilty in the United Statesto a criminal charge as follows:
"On or about August 2, 1995, in -the District of North Dakota, PINDER SINGH BRAR, when applying for admission to the United States, knowingly evaded and attempted to evade the immigration laws by appearing under an assumed name, that is, Gurjit Singh Sidhu, without disclosing his true identity;
In violation of Title 18, United States Code, Section 1546(a)."
[4] Further as a result, in Canada, beginning with an Immigration Officer's report made May 22,
1996, the provisions of s.27(1)(a.1)(1) of the Immigration Act (the "Act") were applied which read as follows:
Removal After Admission
27(1) Reports on Permanent Residents - An immigration officer or a peace officer shall forward a written report to the Deputy Minister setting out the details of any information in the possession of the immigration officer or peace officer indicating that a permanent resident is a person who
(a. l) outside Canada,
(i) has been convicted of an offence that, if committed in Canada, constitutes an offence that may be punishable under any Act of Parliament by a maximum term of imprisonment of ten years or more, . . . [Emphasis added]
[5] Subsequently, on June 18, 1997, an adjudicator found equivalence in s.403 of the Criminal
Code of Canada` (the "Code"), and, accordingly, issued a deportation order against Mr. Brar. Mr. Brar appealed this finding to the Appeal Division.
'Section 403 of the Criminal Code reads as follows:
403. Everyone who fraudulently personates any person, living or dead,
(a) with intent to gain advantage for himself or another person,
(b) with intent to obtain any property or an interest in any property, or
(c) with intent to cause disadvantage to the person whom he personates or another person, is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years or an offence punishable on summary conviction.
Page 3
[6] With respect to the decision of the Appeal Division regarding the applicability of
s.27(j)(a.l)(i) of the Act, the applicant argues that a fundamental error was committed in the
following finding made:
Arguably, evading immigration laws by the use of an assumed identity may be included within the more general and broader s. 403 of the Criminal Code. In particular, it may be subsumed within the second element of that offence, that is, the intent to gain personal advantage. However, I find that while the elements of the American law are included or subsumed in the more general Criminal Code provision, there remains the requirement that the specific elements be compared, and those provisions which are most similar are to be found to have equivalence.
[Emphasis added]
[7] Thus, the Appeal Division moved away from the finding of equivalence of s.403 of the Code, to a focus on the equivalence of two provisions of the Act, namely, s.94(1)(b)Z and s.94(1)(h)3. This was an important move because s.403 of the Code carries the potential of imprisonment for 10 years while the provisions under the Act do not.
[ 8] Consequently, the Appeal Division found only s.94(1)(b) of the Act is equivalent to Title 18,
2 Section 94(1)(b) reads as follows:
94. (1) Every person is guilty of an offence who ...
(b) comes into Canada or remains in Canada by use of a false or improperly obtained passport, visa or other document pertaining to the admission of that person or by reason of any fraudulent or improper means or misrepresentation of any material fact.
3 Section 94(1)(h) reads as follows:
94. (1) Every person is guilty of an offence who ...
(h) knowingly makes any false or misleading statement at any examination, inquiry or hearing under this Act or in connection with the admission of any person or the application for admission by any person.
Page 4 U.S.C.S. 1546(a),and,therefore,thattherequirementsofs.27(1)(a.1)(i)ofthe'Act had not been met with the result that the deportation order with respect to Mr. Brar previously made under this provision was invalid in law.
I agree with the Applicant's argument that the quoted finding of the Appeal Division is made
without legislative or precedential authority. Consequently, I find it is a reviewable error in law. Section 27(1)(a. 1)(i) of the Act allows the finding of equivalence with "any Act of Parliament." That is, it might very well be in a given case that a number of Canadian provisions are found to be equivalent. There is no legal requirement to find the equivalent that is "most similar" and make the decision with respect to that provision only. Therefore, the question to be answered with respect to s.27(1)(a.1)(i) is: are any of the equivalents found punishable by imprisonment for 10 years or more?
[10] I agree with the Applicant that the error found is significant, and one warranting setting aside the Appeal Division's order. On the redetermination, I find that there are two issues to be specifically determined taking into consideration Urie J.'s decisions in Branson v. Canada (Minister of Employment and Immigration), [1981] to 2 F. C. 141 (C.A.) and Hill v. Canada (Minister of Employment and Immigration), [1987] 1 Imm.L.R. (2d) 1 (F.C.A.).
[11] First, s.I564(a) of the U.S. legislation is an omnibus provision which provides many ways in which a person can commit the offence of "fraud and misuse of visas, permits, and other
Page 5
documents."' Within this lengthy,,pxovision, one way is the personation of a person either alive or
dead, and another way is appearing under an assumed, and pos.-Y'diy fictitious, -~?ame. Mr. Brar only
plead guilty to the latter way. Section 403 of the Code, for example, specifically refers only to the
former way. I direct that a decision be made as to whether in assessing equivalence the focus is properly only on the actual misconduct to which Mr. Brar plead guilty, thus possibly excluding s.403
of the Code as an equivalent.
4 Section 1546 reads as follows:
1546. Fraud and misuse of visas, permits, and other documents
(a) Whoever knowingly forges, counterfeits, alters, or falsely makes any immigrant or nonimmigrant visa, permit, border crossing card, alien registration receipt card, or other document prescribed by statute or regulation for entry into or as evidence of authorized stay or employment in the United States, or utters, uses, attempts to use, possesses, obtains, accepts, or receives any such visa, permit, border crossing card, alien registration receipt card, or other document prescribed by statute or regulation for entry into or as evidence of authorized stay or employment in the United states, knowing it to be forged, counterfeited, altered, or falsely made, or to have been procured by means of any false claim or statement, or to have been otherwise procured by fraud or unlawfully obtained; or
Whoever, except under direction of the Attorney General or the Commissioner of the Immigration and Naturalization Service, or other proper officer, knowingly possesses any blank permit, or engraves, sells, brings into the United States, or has in his control or possession any plate in the likeness of a plate designed for the printing of permits, or makes any print, photograph, or impression in the likeness of any immigrant or nonimmigrant visa, permit or other document required for entry into the United States or has in his possession a distinctive paper which has been adopted by the Attorney General or the Commissioner of the Immigration and Naturalization Service for the printing of such visas, permits or documents; or
Whoever, when applying for an immigrant or nonimmigrant visa, permit, or other document required for entry into the United States, or for admission to the United States personates another, or falsely appears in the name of a deceased individual or evades or attempts to evade the immigration laws by appearing under an assumed (or fictitious) name without disclosing his true identity, or sells or otherwise disposes of, or offers to sell or otherwise dispose of or utters, such visa, permit, or other document, to any person not authorized by law to receive such document; or [Emphasis added]
Whoever knowingly makes under oath, or as permitted under penalty of perjury under section 1746, title 28, United States Code, knowingly subscribes; true, any false statement with respect to a material fact in any application, affidavit, or other document required by the immigration laws or regulations prescribed thereunder, or knowingly presents any such application, affidavit, or other document containing any such false statement -
Shall be fined under this title or imprisoned for more than five years, or both.
Page 6 [12] Second, the Applicant argues that it is open to the. Minister to prove Mr. Brar's actual conduct, not]ust the conduct to which he plead guilty, as the basia for a finding under s.27(1)(a.1)(i). This argument is based on an allegation that, indeed, Mr. Brar did personate a living person and the result of doing so was the charge to which he plead guilty. If this argument is raised before the Appeal Division in the redetermination, I direct that a decision on its merits be made.
ORDER
For the reasons expressed, I order that the decision of the Appeal Division is set aside and the matter is referred back to a differently constituted panel of the Appeal Decision for redetermination in compliance with the directions given.
"Douglas Campbell"
Judge
Winnipeg, Manitoba November 23, 1999
FEDERAL COURT OF CANADA TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: IMM-6313-98
STYLE OF CAUSE: THE MINISTER OF CITIZENSHIP AND IMMIGRATION v.
THE IMMIGRATION AND REFUGEE BOARD - APPEAL DIVISION,and PINDER SINGH BRAR,
PLACE OF HEARING: Winnipeg, Manitoba
DATE OF HEARING: November 22, 1999
REASONS FOR ORDER
AND ORDER OF THE COURT: The Honourable Mr. Justice Campbell
DATED: November 23, 1999
APPEARANCES
Sharlene Telles-Langdon for the Applicant Department of Justice
Winnipeg MB R3C OS6
Baerbell Langner-Pennell for the Respondent
SOLICITORS OF RECORD
Zaifman Associates
5th floor, 191 Lombard Avenue
Winnipeg MB R3B 0X1 for the Applicant
Morris Rosenberg
Deputy Attorney General of Canada for the Respondent