Federal Court Decisions

Date: 20140213

Docket:

IMM-3364-13

 

Citation: 2014 FC 113

Ottawa, Ontario, February 13, 2014

PRESENT:    The Honourable Mr. Justice Shore

BETWEEN:
IVAN SIMKOVIC
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent

 

REASONS FOR JUDGMENT AND JUDGMENT

[1]               The Applicant left his country of origin without telling anyone that he was leaving. Recognizing that the Applicant, a university educated professional, did not attempt to regularize his status in Canada for more than sixteen years, nor did he attempt to return to his country of origin; the Applicant did not ask for refugee status during that entire sixteen year period in Canada. Allegedly unaware of his indictment and sentence for tax fraud in his country of origin, the Applicant also alleges that neither his mother nor his sister, who had come to Canada for a visit, had shared with him their knowledge of the trial held in his regard as well as the judgment and sentence that was rendered therein.

 

[2]               Although the counsel of the Applicant points to a Kafkaesque situation of the judicial system in Slovakia, having quoted from the Refugee Protection Division (RPD] of the Immigration and Refugee Board Certified Tribunal Record [CTR], affirmations to the effect that the Prime Minister of Slovakia, Iveta Radicova, who had said at the relevant time-frame to this matter: “I do not believe in judiciary”; and, also: “we need a big judiciary reform”, in the Slovak Prime Minister’s direct reference to corruption therein (CTR, vol 3 at p 458; CTR, vol 2 at pp 230-233 inclusive; CTR, vol 2 at pp 242-244 in that regard, which includes the State Department Country Condition Report); however, in and of itself, that does not discount uncontradicted evidence in regard to the participation of the Applicant in the economic crime for which he was indicted and sentenced. A decision of this Court cannot solely take into account a Country Condition Report or other documentation in that regard without taking into account direct uncontradicted evidence in respect of an applicant. Therefore, even if problems exist with the “judicial system” in the generic, the uncontradicted evidence in regard to the Applicant has led the Court to determine that the decision of the RPD, on its face and in its substance, with regard to its reasoning on the basis of all of the evidence therein, was reasonable as interpreted within the framework of a trilogy of decisions from the Supreme Court of Canada: Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190, Alberta (Information and Privacy Commissioner) v Alberta Teachers' Association, 2011 SCC 61, [2011] 3 SCR 654 and Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 SCR 708.

 

[3]               The fact that the Applicant’s country of origin, Czechoslovakia, was being divided into two, between the Czech and Slovak Republics, when the Applicant fled, is not sufficient as a reason to flee his former country, although changes were to take place, as the Applicant did not have any political profile, nor any political antecedents, whatsoever.

 

[4]               Although the RPD decision has one line, at paragraph 53, wherein an inadvertence had taken place: “Although the company is noted as Slovakia’s ‘largest tax dodger’, there is no commentary about the company being involved in any illegal activities, other than the tax arrears” [emphasis added], that does not change the reasonableness of the entire decision, which is composed of eighty seven paragraphs.

 

[5]               This judgment is in response to an application for judicial review of the decision of the RPD that found that the Applicant is not a “Convention Refugee” or “a person in need of protection” as defined in sections 96 and 97, respectively, of the Immigration and Refugee Protection Act, SC 2001 c 27 [IRPA], as he is excluded under 1F(b) of the Convention relating to the Status of Refugees [Convention].

 

[6]               Article 1F(b) specifies, in part:

 

(Schedule to the Immigration and Refugee Protection Act – Sections E and F of Article 1 of the United Nations Convention relating to the Status of Refugees.)

 

[7]               The RPD, after a hearing held on three separate days and, subsequently, written submissions, determined that the Applicant is excluded from refugee protection pursuant to Article 1F(b) for reasons that include the following:

a)      On the basis of detailed documents from Slovakia that the Applicant had committed crimes before he arrived in Canada, it was determined that the claimant was convicted of “tax diminishment” contrary to section 148, subsections (1) and (5) of the Slovak Penal Code of the government Slovakia;

b)      In the hearing before the RPD, it was determined that the above was equivalent to an act of “fraud” under subsection 380(1) of the Criminal Code of Canada;

c)      Although the Applicant rejected the alleged crimes attributed to his person, he did not dispute that such was the outcome of his current legal situation in Slovakia;

d)     The Applicant alleged that he was, as a partner in a business enterprise, a victim, of unscrupulous individuals who had misled him and that criminal acts had taken place unbeknownst to him through the doing of others;

e)      The RPD had had presented to it, excerpts from the Canadian Criminal Code which indicate that the acts of the Applicant are criminal in nature in Canada. Also, the crime is considered “a serious non-political crime outside of the country of refuge prior to his admission to that country as a refugee”;

f)       Section 98 of the IRPA specifies:

 

g)      Section 380 of the Criminal Code of Canada, RCS, 1985, c C-46, reads :

 

h)      Section 380.1 of the Criminal Code of Canada specifies:

 

i)        If the criminal act as perpetrated was committed in Canada, it would be considered an indictable offence with a maximum sentence of fourteen years;

j)        The judgment from Slovakia is explicit in explaining the basis on which the conclusions were reached:

•         The Applicant is said to have as a partner, in Coreco, the company with which he was associated, entered into contracts with a liquor producer/distributor for a large quantity of rum. The rum was to be exported and not sold domestically in Slovakia. Such goods would be exempt from sales tax, while domestic sales necessitate the payment of the sales tax;

•         Contrary to the laws of Slovakia, the rum was sold in Slovakia; and, thus, the Applicant “caused by these actions and by not paying sales tax, damages to the state, reported by the Revenue Office of Bratislava, in the total amount of 4,406,160,106 Sk”, by which the “criminal offense of tax evasion” was committed (at para 26). This is the equivalent of over 180,000.00 Canadian dollars. Not only was the Applicant to receive a sentence of imprisonment for five years but prohibited from performing business activities subsequently for five years. Thereby, the RPD determined that the Minister had established that the Applicant has committed a serious non-political crime.

k)      Jurisprudence has clearly established that the “reasonable grounds to believe” standard requires something more than mere suspicion but less than the standard applicable in civil matters of proof on the balance of probabilities (Chiau v Canada (Minister of Citizenship and Immigration), [2001] 2 FC 297 at para 60 (CA));

l)        Furthermore, reasonable grounds exist when an objective basis exists on compelling and credible information (Sabour v Canada (Minister of Citizenship and Immigration) (2000), 195 FTR 59, 9 Imm LR (3d) 61 (FCTD)).

 

[8]               It is significant that the Applicant stated that he did sign the initial contract for the purchase of rum in the company’s name to which he was a partner; he, also acknowledged that the contract was for products for export; and, he was cognizant that the exports, in question, were sold for a lesser price; and, thus not taxable at the point of purchase from the producer. The Applicant did not submit any proof that the rum had been, in fact, for export; and the Applicant, also, acknowledged that his company had been paid for the transactions in which he was engaged.

 

[9]               The Federal Court of Appeal in Xie v Canada (Minister of Citizenship and Immigration), 2004 FCA 250, [2004] 1 FCR 304, has held that the RPD can rely upon an indictment on an arrest warrant to conclude that reasonable grounds exist whereby a refugee claimant has committed a crime. The Slovakian Court extracts, in this case, do have details of the allegations themselves, and, evidence in that respect, finding that the Applicant had evaded taxes, after having heard witnesses who had testified thereon, and, subsequent, also, to documentary evidence in that regard.

 

[10]           Although the Applicant argues as to weaknesses in the evidence in respect of the Slovakian indictment and judgment, the evidence on file does establish a prima facie case or “serious reasons to consider” that the Applicant had committed a serious non-political crime in Slovakia.

 

[11]           It is not for the RPD to conduct a criminal trial beyond a reasonable doubt or on a balance of probabilities. The indictment and the judgment from Slovakia do support the RPD’s determination of serious reasons for considering that the Applicant had committed a crime (Sing v Canada (Minister of Citizenship and Immigration), 2005 FCA 125).

 

[12]           The RPD’s decision, further to analysis by this Court, does demonstrate that the RPD, in this case, deserves deference (Febles v Canada (Minister of Citizenship and Immigration), 2012 FCA 324).

 

[13]           An offence punishable by a term of ten years, if committed in Canada, is a serious crime. A serious crime can include an economic crime (Jayasekara v Canada (Minister of Citizenship and Immigration), 2008 FCA 404, [2009] 4 FCR 164).

 

[14]           The Applicant was convicted of defrauding the Slovakian government the equivalent of more than $180,000 in taxes. That was not contradicted with any substantial evidence from the Applicant.

 

[15]           It is important to clearly specify that the RPD had conducted a thorough and clear analysis in its assessment of the seriousness of the crime:

a)      The elements of the crime;

b)      The mode of prosecution;

c)      The penalty prescribed;

d)     The facts of the conviction;

e)      Any mitigating and aggravating circumstances in respect of the conviction.

(Jayasekara, above, at para 44).

 

[16]           The elements of the crime had been established. Although the trial was conducted in absentia, that was due to the Applicant having left Slovakia in 1992 to come to Canada. The Applicant’s personal circumstances had been considered as had the fact that he had participated with others in the crime, including the potential for rehabilitation and the fact that he had had no previous criminal record. In reaching its sentence of five years, the serious social nature of the crime was taken into consideration. All of the above factors, including the fact that the Applicant left Slovakia avoiding prosecution, had been under consideration.

 

[17]           In addition, the Applicant could not provide anything to support his allegation that the RPD erred in finding he could be excluded as Slovakia could not enforce the judgment due to prescription as to the time sequence which had elapsed. That had not been established by the Applicant. That argument does not, in essence, assist the Applicant as that would mean he could return to Slovakia, with the criminal matter in question in Slovakia, no longer to his detriment due to the prescription which was raised by the Applicant in respect of discounting the sentence, even if it is existed. That prescription issue works both ways in this case, both to his detriment if he states that he cannot go back, the matter is not prescribed; if it is prescribed, then he could go back. The Applicant cannot have it both ways.

 

[18]           The RPD conducted “a full and proper hearing”. The RPD has an inquisitorial role, given to its members to ensure that clarity is obtained on issues within the RPD’s jurisdiction in conduct that is conducive to such a hearing (Arica v Canada (Minister of Employment and Immigration) (1995), 182 NR 392 (FCA)).

 

[19]           As to an allegation of bias of the RPD’s member, as expressed by the Applicant, the transcript clearly demonstrates that extensive and energetic questioning took place without any reasonable apprehension of bias on the part of the RPD member. The RPD member, as per the transcript, simply did all that was possible to understand the evidence for the purposes of analysis and determination.

 

[20]           The RPD did not err in its determination. Serious reasons for consideration do exist that the Applicant had committed a serious non-political crime prior to his admission to Canada. Also, the Applicant failed to show that the RPD was either biased or had engaged in irrelevant considerations in his regard as per his allegation (Wewaykum Indian Band v Canada, 2003 SCC 45, [2003] 2 SCR 259; Committee for Justice and Liberty v Canada (National Energy Board), [1978] 1 SCR 369).

 

[21]           For all of the above reasons, the Applicant’s application for judicial review is dismissed.

 

JUDGMENT

THIS COURT ORDERS that the Applicant’s application for judicial review be dismissed with no question of general importance for certification.

 

 

"Michel M.J. Shore"

 

 

FEDERAL COURT

SOLICITORS OF RECORD

 

DOCKET:	IMM-3364-13
STYLE OF CAUSE:	IVAN SIMKOVIC v THE MINISTER OF CITIZENSHIP AND IMMIGRATION

 

PLACE OF HEARING:

                                                            Vancouver, British Columbia

 

DATE OF HEARING:

                                                            January 29, 2014

 

REASONS FOR JUDGMENT AND JUDGMENT:

                                                            SHORE J.

DATED:

                                                            february 13, 2014

APPEARANCES:

Andrew Z. Wlodyka	For The Applicant
Helen Park	For The Respondent

 

SOLICITORS OF RECORD:

Wlodyka MacDonald Teng Barristers and Solicitors Vancouver, British Columbia	For The Applicant
William F. Pentney Deputy Attorney General of Canada Vancouver, British Columbia	For The Respondent