Date: 20050503
Docket: IMM-8333-04
Citation: 2005 FC 609
Ottawa, Ontario, May 3, 2005
PRESENT: THE HONOURABLE MR. JUSTICE BLANCHARD
BETWEEN:
MINH CHI NGO
Applicant
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
INTRODUCTION
[1] The Applicant seeks judicial review of a decision of the Immigration Appeal Division of the Immigration and Refugee Board (the "Appeal Division"), rendered on September 10, 2004 , granting the appeal of the Minister of Citizenship and Immigration, wherein the Applicant was found to be a a person described in paragraph 36 (1)c) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, (the "IRPA") and as a consequence issued an expulsion order against the Applicant.
[2] The Applicant asks this Court to set aside the decision of the Appeal Division and requests a new hearing.
BACKGROUND FACTS
[3] The Applicant left Vietnam in 1997, travelling to France. While in France, a company dealing in informatics invited him to come to Canada. He arrived on December 20, 1997, with a visitor's visa.
[4] Approximately a month and a half after his arrival, the Applicant learned that he was wanted by the Vietnamese authorities. He later met a former girlfriend and the couple married in Canada in March 1998. The Applicant's wife subsequently applied to sponsor her husband, who also sought to obtain refugee status in 2002.
[5] On June 5, 2001, a report prepared pursuant to section 27 of the Immigration Act, R.S.C. 1985, c. I-2, concluded that the Applicant was a person inadmissible to Canada by virtue of subparagraph 19(1)(c.1)(ii) of the same Act.
| 19. Inadmissible persons (1) No person shall be granted admission who is a member of any of the following classes :
(c.1) persons who there are reasonable grounds to believe
(ii) have committed outside Canada an act or omission that constitutes an offence under the laws of the place where the act or omission occurred and that, if committed in Canada, would constitute an offence that may be punishable under any Act of Parliament by a maximum term of imprisonment of ten years or more,
except persons who have satisfied the Minister that they have rehabilitated themselves and that at least five years have elapsed since the expiration of any sentence imposed for the offence or since the commission of the act or omission, as the case may be; |
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19. Personnes non admissibles (1) Les personnes suivantes appartiennent à une catégorie non admissible :
c.1) celles dont il y a des motifs raisonnables de croire qu'elles ont, à l'étranger :
(ii) soit commis un fait - acte ou omission - qui constitue une infraction dans le pays où il a été commis et qui, s'il était commis au Canada, constituerait une infraction qui pourrait être punissable, aux termes d'une loi fédérale, d'un emprisonnement maximal égal ou supérieur à dix ans, sauf si elles peuvent justifier auprès du ministre de leur réadaptation et du fait qu'au moins cinq ans se sont écoulés depuis la commission du fait; |
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[6] This conclusion was drawn in light of information that the Applicant was wanted in Vietnam for fraud contrary to section 134 of the Penal Code of the Socialist Republic of Vietnam. An arrest warrant was allegedly emitted by the authorities of Ho Chi Minh city on February 13, 1998. The Applicant was alleged to have defrauded the equivalent of millions of Canadian dollars.
[7] An investigation was conducted by the Immigration Section between November 28, 2001, and September 20, 2002. During this time, the IRPA came into force and the initial claim was modified to state that the Applicant was an inadmissible person pursuant to paragraph 36(1)(c) of the IRPA.
| 36. Serious criminality (1) A permanent resident or a foreign national is inadmissible on grounds of serious criminality for
(c) committing an act outside Canada that is an offence in the place of where it was committed and that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years. |
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36. Grande criminalité (1) Emportent interdiction de territoire pour grande criminalité les faits suivants :
c) commettre, à l'extérieur du Canada, une infraction qui, commise au Canada, constituerait une infraction à une loi fédérale punissable d'un emprisonnement maximal d'au moins 10 ans.
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[8] Following the investigation, panel member Michel Beauchamp decided, on September 20, 2002, that the allegations levelled against the Applicant were unfounded. The Minister appealed this decision pursuant to subsection 63(5) of the IRPA. The hearing before the Appeal Division was held on October 21, 2003. Panel member Di Pietro granted the appeal and emitted a deportation order against the Applicant.
[9] On January 13, 2005, leave to commence the withing judicial review application was granted.
IMPUGNED DECISION
[10] The Appeal Division stated that, in order to determine if the Applicant is an inadmissible person pursuant to paragraph 36(1)(c) of the IRPA, section 33 has to be taken into consideration. It reads :
| 33. Rules of interpretation The facts that constitute inadmissibility under sections 34 to 37 include facts arising from omissions and, unless otherwise provided, include facts for which there are reasonable grounds to believe that they have occurred, are occurring or may occur. |
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33. Interprétation Les faits - actes ou omissions - mentionnés aux articles 34 à 37 sont, sauf disposition contraire, appréciés sur la base de motifs raisonnables de croire qu'ils sont survenus, surviennent ou peuvent survenir. |
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[11] The Appeal Division concluded that the allegations contained in the report from Interpol and the arrest warrant show reasonable grounds to believe that the Applicant did commit those crimes. The Appeal Division rejected the Commissioner's conclusion that this evidence, which he concluded was sufficient to establish reasonable grounds, was displaced by his finding that Vietnam does not respect the rule of law. The Appeal Division held that it could not accept this conclusion, even though there is evidence of human rights violations in Vietnam, in light of the Applicant's testimony that his actions were aimed at enabling a business to indirectly borrow funds from a state bank, which is contrary to Vietnamese law.
[12] The Appeal Division concluded that there was sufficient evidence in the present case to justify the conclusion that the Applicant falls within the ambit of paragraph 36(1)(c) of the IRPA. The appeal was consequently allowed and a deportation order was filed against the Applicant pursuant to subsection 67(2) of the IRPA and paragraph 229(1)(c) of the Immigration and Refugee Protection Regulations, SOR/2002-227 (the "Regulations").
ISSUES
[13] A number of issues are raised by the Applicant in the application. In my view only one warrants consideration since it is determinative of the application. For the reasons that will follow, the Appeal Division erred in failing to consider whether the same actions committed in Canada would constitute fraud within the meaning of section 380 of the Criminal Code of Canada.
ANALYSIS
[14] A determination of inadmissibility under section 36 of the IRPA is based on a "reasonable grounds" standard of proof, which lies at midpoint between mere suspicion and the balance of probabilities: Chiau v. Canada (Minister of Citizenship and Immigration), [1998] 2 F.C. 642. It is a bona fide belief in a serious possibility based on credible evidence.
[15] More specifically, in the case of subsection 36(1), which provides that a foreign national is inadmissible to Canada on grounds of serious criminality, the applicable threshold is the seriousness of the crime according to the Canadian standard: Brannson v. Canada (Minister of Employment and Immigration), [1981] 2 F.C. 141. The decision-maker essentially has to appreciate the perceived gravity of the offence the person is alleged to have committed from a Canadian point of view.
[16] Case law from this Court establishes that equivalency can be determined in three ways: Hill v. Canada (Minister of Employment and Immigration), [1987] F.C.J. No. 47, online: QL; Dayan v. Canada (Minister of Employment and Immigration), [1987] 2 F.C. 569; Steward v. Canada (Minister of Employment and Immigration), [1988] 3 F.C. 452.
1) by comparing the precise wording in each statute both through documents and, if available, through the evidence of experts in the foreign law in order to determine the essential elements of the respective offences;
2) by examining the evidence, both oral and documentary, to ascertain whether that evidence is sufficient to establish that the essential elements of the offence in Canada had been proven in the foreign proceedings, whether precisely described in the initiating documents or in the statutory provision in the same words or no;
3) by a combination of the two.
[17] The Appeal Division simply held that, if committed in Canada, the offence which the Applicant allegedly committed in Vietnam would constitute an offence contrary to section 380 of the Criminal Code, R.S.C. 1985, c. C-46.
| 380. Fraud (1) Every one who, by deceit, falsehood or other fraudulent means, whether or not it is a false pretence within the meaning of this Act, defrauds the public or any person, whether ascertained or not, of any property, money or valuable security or any service,
(a) is guilty of an indictable offence and liable to a term of imprisonment not exceeding ten years, where the subject-matter of the offence is a testamentary instrument or the value of the subject-matter of the offence exceeds five thousand dollars; or |
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380. Fraude (1) Quiconque, par supercherie, mensonge ou autre moyen dolosif, constituant ou non un faux semblant au sens de la présente loi, frustre le public ou toute personne, déterminée ou non, de quelque bien, service, argent ou valeur :
a) est coupable d'un acte criminel et passible d'un emprisonnement maximal de dix ans, si l'objet de l'infraction est un titre testamentaire ou si la valeur de l'objet de l'infraction dépasse cinq mille dollars; |
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[18] The illegal behaviour alleged in the present circumstances consists of the Applicant borrowing funds from the state bank to pass it over to other companies, thereby permitting them to have access to funds exceeding the legal limit imposed on company financing. Allegedly, the Vietnamese government caps the limit of funds borrowed, by making it illegal to exceed this limit, in order to prevent the private sector from expanding too quickly.
[19] In my view the Appeal Division erred in failing to consider whether the same actions committed in Canada would constitute fraud within the meaning of the Criminal Code. In the present case, even if the Appeal Division had concluded that the Applicant assisted a company in obtaining funds indirectly, it was required to assess whether these same actions would be a crime if committed in Canada. The Appeal Division failed to do so in the instant case.
[20] The Applicant relies on the decisions of the Supreme Court of Canada in Zlatic v. The Queen, [1993] 2 S.C.R. 29, and Théroux v. The Queen, [1993] 2 S.C.R. 5, to argue that no proof was made that the elements of fraud existed in the present case. The Applicant consequently submits that, even if he had assisted a company to in indirectly making funds available to him, he did nothing more than take advantage of a legal loop hole. Nothing in Canadian law would prevent him from doing so.
[21] The Appeal Division only briefly mentioned that the acts allegedly committed by the Applicant constitute fraud within the meaning of section 380 of the Criminal Code. However, no analysis of the essential elements of the offences was conducted by the Appeal Division as required in accordance with the jurisprudence of this Court.
[22] It is the equivalency of the offence that must be examined, not the equivalency of the law: Steward, supra. In the instant case even if it were established that the acts of the Applicant would lead to an offence of fraud under Vietnamese Law, this does not necessarily lead to a conclusion that the same acts committed in Canada would constitute an offence under section 380 of the Criminal Code of Canada. Though it is not for this Court to conduct the equivalency analysis, in my view it is highly doubtful, on the facts of this case, that equivalency would be established under Canadian law.
[23] The Appeal Division's omission to properly evaluate the equivalency of the offence, when determining whether the Applicant is inadmissible to Canada for reasons of serious criminality, constitutes a reviewable error. It matters not on what standard such a determination is reviewed, failure to properly conduct an equivalency assessment in cases under paragraph 36(1)(c) of the IRPA is fatal.
[24] For the above reasons, the application for judicial review will be allowed. The September 10, 2004, decision of the Appeal Division is set aside and the matter is remitted to the Appeal Division for reconsideration before a separately constituted panel.
[25] I have considered the Applicant's request for costs. The circumstances are not so exceptional as to warrant an award of costs against the Respondent. In the exercise of my discretion I decline to award costs.
[26] The parties have had the opportunity to raise a serious question of general importance as contemplated by section 74(d) of the Immigration and Refugee Protection Act, S.C. 2001, Chapter 27, and have not done so. I do not propose to certify a serious question of general importance.
ORDER
THIS COURT ORDERS that:
1. The application for judicial review is allowed.
2. The September 10, 2004, decision of the Appeal Division is set aside and the matter is remitted to the Appeal Division for reconsideration before a separately constituted panel.
3. No costs are allowed.
4. No serious question of general importance is certified.
"Edmond P. Blanchard"
Judge
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-8333-04
STYLE OF CAUSE: Minh Chi Ngo v. MCI
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: April 19, 2005
REASONS FOR ORDER BY: BLANCHARD, J.
DATED: May 3, 2005
APPEARANCES BY:
Mrs. Vonnie E. Rochester For the Applicant
Mr. Ian Demers For the Respondent
SOLICITORS OF RECORD:
Mrs. Vonnie E. Rochester For the Applicant
John H. Sims, Q.C. For the Respondent
Deputy Attorney General of Canada
Montréal, Quebec