Right now, marriage fraud investigations are a very low priority for CBSA given lack of resources. Why not allow victims or those who have information on marriage fraud have a specific, wll publicized complaint process where they can file a form to set the process in motion? It should be very simple if the estranged spouse is the victim.
CBSA urged to act on marriage fraud complaints - Politics - CBC News
Sunday, October 30, 2011
Saturday, October 29, 2011
US IMMIGRATION LAWYER AWAITING EXTRADITION IN ALLEGED MASSIVE FRAUDULENT SCHEME
The ongoing saga of a US immigration lawyer who fled to Toronto continued this week in Federal Court, where he was ordered to remain in detention pending his extradition hearing. The decision below has a good summary of he criteria used for release of a person pending an extradition hearing.
Between
The Attorney General of Canada on behalf of the United States
of America, Respondent, and
Earl Seth David, a.k.a. Earl Avraham David, Applicant
· s.
· (a) · (b) · (c)
United States of America v. David
IN THE MATTER OF an Application Pursuant to s. 18 of the
Extradition Act, S.C. 1999, c. 18 for the Judicial Interim
Release of Earl Seth David, a.k.a. Earl Avraham David
Extradition Act, S.C. 1999, c. 18 for the Judicial Interim
Release of Earl Seth David, a.k.a. Earl Avraham David
Between
The Attorney General of Canada on behalf of the United States
of America, Respondent, and
Earl Seth David, a.k.a. Earl Avraham David, Applicant
[2011] O.J. No. 4729
2011 ONSC 6360
Court File No. Ex-209/11
Ontario Superior Court of Justice
M.D. Forestell J.
Heard: October 21, 2011.
Judgment: October 25, 2011.
Court File No. Ex-209/11
Ontario Superior Court of Justice
M.D. Forestell J.
Heard: October 21, 2011.
Judgment: October 25, 2011.
(48 paras.)
· RULING ON JUDICIAL INTERIM RELEASE
M.D. FORESTELL J.:--
Background
1 Earl Seth David was arrested pursuant to a provisional warrant and is sought for extradition by the United States for fraud. It is alleged that Mr. David was the architect of an immigration fraud that was perpetrated from 1996 to 2009. The allegation is that Mr. David and his co-conspirators filed fraudulent applications to the U.S. Department of Labor on behalf of foreign nationals who paid for the applications.
2 Mr. David brings this application for release pending his extradition hearing.
Evidence
Nature of the Evidence
3 A Record of the Case has not yet been filed. The Respondent filed, as part of its record on this application, a letter from the United States Attorney with carriage of the file setting out information and concerns relevant to bail. In addition to the information in the 'bail letter', I received the affidavit of Detective Constable Jeffrey Treusch filed in support of the application for provisional warrant. The affidavit of Detective Constable Treusch attaches as an exhibit the Request for Provisional Arrest setting out the background of the alleged offences.
4 The Applicant, Mr. David, filed a record containing his own affidavit and affidavits of the two proposed sureties: his wife, Salome Fernandez Palomo and his uncle, Israel Sheldon Langner.
5 Mr. David, his wife and uncle all gave viva voce evidence at the hearing.
The Allegations
6 The Request for Provisional Arrest sets out a two-page summary of the allegations against the Applicant. The summary reads in part as follows:
· Earl Seth David, a.k.a "Earl Avraham David," ("Earl David") operated a New York City law firm known as Earl David and Associates (the "Law Firm") from 1996 through 2009. Under Earl David's direction and during that time period, the Law Firm submitted thousands of fraudulent labor certification applications as well as fraudulent immigration applications to the United States Department of Labor ("USDOL") and the United States Citizenship and Immigration Services ("USCIS")
· An investigation into the criminal activities committed by employees and associates of the Law Firm revealed one of the largest immigration fraud schemes in the history of the United States. The subjects of the investigation include attorneys, paralegals, translators, business owners, tax preparers, government officials and accountants. Numerous different schemes have been uncovered during the course of the investigation including, among others, (1) the creation of sham companies to support labor applications submitted to the USDOL, and (2) USCIS and USDOL filings submitted on behalf of aliens with fraudulent tax documents, fraudulent work experience letters and other fictitious documentation.
· Multiple witnesses and aliens (who submitted applications through the law firm) can identify Earl David as the principal operator of the law firm who orchestrated and carried out the fraud scheme. For example, cooperating witnesses will testify that Earl David created fraudulent companies and generated fraudulent documentation to support the fraudulent USCIS and USDOL applications. The witness testimony is corroborated by independent record checks and documents seized pursuant to a number of search warrants and grand jury subpoenas - showing thousands of USCIS and USDOL applications to be fraudulent.
· Earl David fled to Canada in 2006 after subpoenas were served on a number of businesses who acted as employer-sponsors for many of the fraudulent USCIS and USDOL applications filed by Earl David and employees of the law firm. Earl David continued to operate the law firm after fleeing to Canada by filing applications electronically and by communicating with co-conspirators by e-mail, telephone and fax. In Earl David's absence, fifteen individuals associated with the law firm have been indicted for violations of U.S. law as a result of their involvement in fraud ongoing (sic) the scheme at the law firm. Eleven of these individuals have been convicted of fraud related crimes; two have pending cases; and two are fugitives. Eight search warrants have been executed resulting in the seizure of five hundred and forty-five boxes of evidence and sixteen computers. As a result of this investigation, $80,000 cash was seized and $944,240.51 forfeited.
7 The request for provisional arrest asserts that Mr. David left the United States in 2006 following the execution of search warrants, but continued to be involved in the scheme remotely. The request for provisional arrest asserts that Mr. David did not return to the United States after 2006. It also set out the belief of the prosecution that Mr. David has access to large sums of money and the ability to obtain false travel documents.
8 The bail letter filed by the respondent in this application repeats much of the request for provisional warrant but also provides additional detail and sets out the concerns of the prosecution with respect to bail. Counsel for Mr. David concedes that the bail letter is admissible,1 but cautions against undue weight being given to its contents. Mr. Byers, counsel for Mr. David, properly points out that the letter lacks detail where such detail could be favourable to Mr. David. For example, the letter states that "up to $30,000.00" was charged for applications but does not set out the lower end of the price range nor the number of applications at the lower rather than the higher end of the range. The letter suggests that Mr. David may face a sentence of ten years, but does not provide the sentences imposed on the eleven other members of the scheme who have been convicted.
9 The bail letter sets out the position and concerns of the prosecution in the United States on the issue of bail. As such, it is an opinion or argument rather than evidence. I have relied on the affidavit of Detective Constable Treusch and the attached request for the provisional warrant in considering the application. I have not relied on the bail letter in the circumstances.
Evidence of the Applicant
10 Mr. David's affidavit, filed on this application, sets out his personal history and his connection to Canada.
11 Mr. David has dual citizenship in the United States and Canada. His mother was Canadian and his father American. His mother came to Toronto to give birth to Mr. David but returned immediately with her son to the United States. Mr. David lived in the United States for his entire life up to 2004 or 2005. In his affidavit he swears that he began to move to Toronto in 2004 and made the permanent move in 2005. He states that since moving to Canada permanently in 2005 he has only left the country once to go to Mexico and meet his new wife's family. He says, "Other than that, I have remained in the country for the last six years."
12 In his viva voce evidence Mr. David elaborated on the details of his move to Canada. He testified that he began moving to Toronto in 2004. His wife bought a condominium in Toronto and he was coming back and forth. He moved permanently in 2005. He testified that November 2005 was the last time that he was in the United States.
13 Mr. David explained that his reason for moving to Toronto was connected to his suspension from the New York and New Jersey bar in 2004. He testified that he began moving in 2004 after he was suspended. Mr. David testified that he was suspended from the bar as a result of his involvement in a fraudulent scheme from 1992 to 1996. He had been granted immunity from prosecution in return for testifying for the prosecution. However, a judge in one of the trials reported his conduct to the New York bar and he was subsequently suspended for 15 months. The suspension from the New York bar resulted in a reciprocal suspension from the New Jersey bar. He was required to apply for the suspension to be lifted after the 15-month period. The New Jersey suspension has been lifted and Mr. David has been practising foreclosure defence in the State of New Jersey. The New York suspension remains in place.
14 Under cross-examination Mr. David insisted that he only practiced in New Jersey and only practiced foreclosure defence. However, when specifically asked if he practiced immigration law he responded that "may have filled out forms" with biographic details only. He testified that someone asked him to do this - someone who used to work for him at the Earl David Law Firm.
15 Mr. David was confronted with a sworn statement that was filed on his behalf in the Supreme Court of New Jersey Disciplinary Review Board. The statement was part of a petition for reinstatement to the New Jersey bar. In the statement, Mr. David had certified as follows: "I currently reside at 280 Rector Place, suite 3G New York, N.Y. 10280. My telephone number is 908-907-0953. Since my suspension, I have lived at the same address." The statement is dated March 13, 2006, signed and certified to be true. In his testimony before me Mr. David confirmed that he made the statement and certified it to be true. He testified that the address noted in the statement was a mailing address.
16 Mr. David was married in 1992 to Nathalie Encaoua and they had a son who is now 16 and lives in Florida with his mother. They divorced in 1999. Mr. David says in his affidavit that he pays child support. When cross-examined on this point Mr. David stated that he paid a lump sum of $30,000.00 towards child support and this amount was accepted. He is not currently paying child support. He states that he maintains a regular relationship with his son and that his son comes to Canada to visit on occasion. Under cross-examination he said that his son came to visit him for the first time in 2007 - two years after he left the United States. He did not see his son for two years after he came to Toronto. He never visited his son in Florida.
Evidence of the Sureties
17 Ms. Paloma, Mr. David's wife, filed an affidavit and gave evidence at the hearing. Ms. Paloma is a landed immigrant who came to Canada approximately eight years ago. She testified that she first met Mr. David in 2008, began living with him around January or February 2010 and married him December 14, 2010. Ms. Paloma is seven months pregnant with a due date in late December.
18 Ms. Paloma testified that she and Mr. David travelled to Mexico City in 2008 for Mr. David to meet her parents. Her parents continue to reside in Mexico City. She visited them most recently in August of 2011.
19 Ms. Paloma testified that she and Mr. David have started a cleaning business but that it does not generate any income. They rely on Mr. David's legal practice for their income. They purchased a house in July 2011. They have approximately $100,000.00 in equity in the house and Ms. Paloma was willing to sign as a surety for that amount.
20 The affidavit filed by Ms. Paloma proposed a release plan that involved Mr. David continuing to carry on his legal practice. In the hearing, that plan was abandoned and it was proposed that Mr. David have no access to computers or to any device that would permit him to access the Internet. It was also proposed that he not be permitted to do any banking and that he be under house arrest. While Ms. Paloma had not previously been responsible for the banking, she assured the Court that she could conduct all banking and could ensure that her husband not have access to any computers.
21 The second proposed surety is Mr. David's uncle, Israel Sheldon Langner. Mr. Langner is 82 years old and a Canadian citizen. He operates a transportation brokerage business and has done so for about 10 years. Mr. Langner filed an affidavit stating that he had GICs worth about $240,000 and would be willing to pledge $100,500.00 of this amount to act as a surety for his nephew. This is the only money to which he has access right now. In his affidavit Mr. Langner offered to have regular contact with Mr. David and check in daily if necessary. At the hearing, the plan proposed to the Court was that Mr. Langner would move in with Mr. David and his wife in order to provide supervision of the proposed house arrest.
Legal Framework
22 Judicial interim release pending an extradition hearing is governed by sections 18 and 19 of the Extradition Act, S.C. 1999, c. 18. Section 19 of the Act makes Part XVI of the Criminal Code, R.S.C., 1985, c. C-46 applicable to judicial interim release pending an extradition hearing. The onus is on the Crown to show cause why Mr. David should be detained pending his extradition hearing. The Crown seeks the detention of Mr. David.
23 Section 515(10) of the Criminal Code sets out the primary, secondary and tertiary grounds upon which detention may be justified.
515(10) For the purposes of this section, the detention of an accused in custody is justified only on one or more of the following grounds:
where the detention is necessary to ensure his or her attendance in court in order to be dealt with according to law;
where the detention is necessary for the protection or safety of the public, including any victim of or witness to the offence, having regard to all the circumstances including any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice; and
if the detention is necessary to maintain confidence n the administration of justice, having regard to all of the circumstances, including (i) the apparent strength of the Crown's case, (ii) the gravity of the offence, (iii) the circumstances surrounding the offence including whether a firearm was used, and (iv) the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment or, in the case of an offence that involves, or whose subject-matter is a firearm, a minimum punishment of imprisonment of three years or more.
24 As observed by Trotter J. in United States of America v. Ugoh,2 because of Canada's international treaty obligations, the risk of absconding must be examined even more carefully in extradition cases than it might be in domestic proceedings.
25 In cases involving allegations that a fugitive is part of a large organization, our courts have expressed concern for the potential for flight with false documents and hidden assets.3 This concern reflects the observation of Chief Justice Lamer in R. v. Pearson4 that most accused do not have the means to abscond, but that those who are part of a sophisticated organization and have access to wealth are more likely to abscond. While Chief Justice Lamer's comments were directed at drug traffickers, they are equally applicable to those accused of being part of a sophisticated fraud.
26 The Crown seeks the detention of Mr. David on all three grounds, but particularly on the primary that Mr. David presents a serious flight risk in light of the sophisticated and well-organized scheme in which he is alleged to have been involved and the access to fraudulent documents and on the secondary grounds that he has continued his involvement in the fraudulent scheme through the use of the Internet and electronic documents since coming to Canada.
27 Mr. David submits that the proposed plan of full-time supervision by two reliable sureties, house arrest and conditions to prevent access to the Internet or banking, should satisfy concerns on all three grounds.
Analysis
Primary Grounds
28 The seriousness of the charges and the strength of the case for the prosecution in the United States are factors to be considered in assessing the risk of flight. While I am not in a position to assess the ultimate strength of the case against Mr. David, for the purpose of the bail hearing, the case for the prosecution appears to be strong. The prosecution has cooperating witnesses and documentation to support its allegation that Mr. David was actively involved in preparing fraudulent applications. The charges appear to be serious and while I do not rely on the bail letter provided, I can infer that if convicted Mr. David would face a period of incarceration.
29 Mr. David's flight to Canada is a significant factor to be considered in assessing the risk of further flight. The respondent links Mr. David's move to Canada to the execution of search warrants in the investigation of the fraudulent scheme. It is the respondent's position that Mr. David fled the United States to avoid prosecution and has avoided ever returning for the same reason.
30 Mr David testified that he moved to Canada because he had been suspended from practice and his lawyer for the disciplinary proceedings recommended that he leave the jurisdiction. Mr. David elaborated on this in his testimony, saying that clients continued to call him after his suspension and wanted him to work on their cases. His lawyer told him to disconnect his phone. He decided that he should remove himself from the jurisdiction to avoid contact with clients while suspended and also to start over. Mr. David portrayed his motivation for moving to Toronto as being a desire to comply with the terms of his suspension. He insisted that he began the move shortly after the suspension and made it permanent in 2005.
31 I do not find Mr. David's testimony credible with respect to the timing or motivation for his move to Toronto. He verified in a statement to the Supreme Court of New Jersey Disciplinary Review Board in March 2006 that he was residing in New York and had done so since his suspension in 2004. This directly contradicts his testimony before me and his affidavit filed in this Court. I infer that Mr. David, in his evidence before me, was trying to characterize his move to Toronto as unrelated to the fraud investigation and unrelated to a desire to avoid prosecution. I have no reliable information on precisely when Mr. David moved to Toronto. I accept the evidence of his now wife that she met him in Toronto in 2008 and the evidence of his uncle that Mr. David moved to Toronto four, five or six years ago. I cannot determine the timing of the move except to accept that it was sometime within the last six years. I do not accept that the move was motivated by a desire to avoid contact with former clients or to ensure compliance with his terms of suspension. Mr. David, on his own evidence, has maintained contact with his law firm in New York and has been doing work for that firm since his move and in spite of his suspension. He has removed himself only from the supervision of the United States Courts but not from his former firm.
32 Mr. David's connection to this jurisdiction is also a factor to be considered in assessing the risk of flight. Mr. David is a Canadian citizen. However, he has little connection to Canada. He was raised in the United States. He practiced as a lawyer in the United States. His only immediate family member is a brother who lives in the United States. His wife lives in Canada but is not a Canadian citizen and has only been in Canada for 8 years. Ms. Paloma has family in Mexico and a substantial connection to that country. Ms. Paloma does not have family, work or substantial assets in Canada beyond the $100,000.00 equity in the house that she owns with Mr. David.
33 I accept that Mr. David has a close relationship with his uncle, Mr. Langner. However, this is a rather tenuous connection to the jurisdiction when one considers that Mr. David lacks any other significant roots in this community.
34 The nature of the allegations supports the inference that Mr. David has access to significant funds and that he has the means to access false documents. These factors also increase the risk of flight.
35 Having considered these factors I have concluded that there is a considerable risk of flight.
Secondary Grounds
36 The Crown has also raised concerns on the secondary grounds.
37 Mr. David testified that he practiced law in New Jersey but did so from Toronto. He testified that he practiced exclusively foreclosure defence. However, he conceded that he 'filled out forms upon request' when lawyers from the Earl David firm asked him to do so for immigration clients. He stated that he filled in biographic details on forms downloaded from the Internet. It was put to him that he continues to fill out these forms and his response was "upon request".
38 Mr. David is not permitted to practice law in New York, but on his evidence continues to have involvement with his former firm and to perform work for them. While I cannot conclude that Mr. David was committing offences when he filled out immigration forms for his former associates in New York, his conduct raises serious concerns about the likelihood that he would obey restrictions imposed by this Court when he appears to have little regard for the terms of his suspension from the New York bar.
39 A further concern on the record before me is that Mr. David has previously been involved in a fraudulent scheme. He became involved in the previous scheme in 1992, a mere four years after his call to the bar. That fraudulent scheme involved Mr. David opening a bank account in Canada and writing cheques from the account to cash. The cash was used by a co-conspirator to bribe brokers. He became a witness for the prosecution after being contacted by the prosecution about his role in 1996. The current scheme is said to have run from 1996 to 2009. Therefore, while Mr. David has no criminal record, he has admittedly been involved in a fraudulent scheme for a period of four years in the past. The current allegations cover a time period of 13 years immediately following the end of the other fraudulent scheme. Mr. David's activities in 'filling out forms' at the request of another lawyer have continued, on his evidence, after his move to Canada. His activities in his law practice are conducted from his home through the Internet and over the telephone.
40 Counsel for Mr. David properly points out that the fact that Mr. David made a deal for immunity from prosecution does not mean that he was guilty of fraud or would have been convicted if prosecuted. While I accept this argument I can infer from the record before me that Mr. David allowed himself to be used as a means to commit a fraud by establishing a bank account in Canada for use in a fraudulent scheme in the United States. He is now again in Canada, operating a law practice remotely and performing work 'on request' for persons from his law firm in New York. He has done so despite the attempt by the New York State bar to suspend him from practising.
41 In light of the above factors I have concerns on the secondary grounds.
Tertiary Grounds
42 Detention on the tertiary grounds is justified where the detention is necessary in order to maintain confidence in the administration of justice, having regard to all the circumstances, including the apparent strength of the prosecution's case, the gravity of the nature of the offence, the circumstances surrounding its commission and the potential for a lengthy term of imprisonment.
43 As I found in my consideration of the primary grounds, the case for the prosecution is strong, the offence serious and the potential penalty is significant. The circumstances surrounding the commission of the offence point to a sophisticated organization. However, all of these factors have already been considered in relation to the primary grounds. My concern in this case is not with undermining confidence in the justice system by ordering the release of Mr. David, but with the substantial risk of flight and the risk that Mr. David will commit offences if released.
Adequacy of the Proposed Plan of Release
44 Having concluded that there exist serious concerns on the primary and secondary grounds I must consider whether the proposed plan of release adequately addresses those concerns.
45 I cannot conclude that the plan of release is adequate. While the sureties appear well-meaning, the success of the plan rests on the honesty and reliability of Mr. David. Removing computers from the house will not preclude Mr. David from conducting business by telephone or by mail. Ms. Paloma, from her evidence, has relied entirely on her husband to manage their finances. She was unaware of the transfer of money to one of Mr. David's co-conspirators earlier this year. She did not know what rent they were paying at the apartment before they bought their house. While she may have the intention of fully informing herself about her husband's financial dealings, the success of that endeavour depends on Mr. David. I have no confidence in the honesty of Mr. David in light of his conduct in misleading the court.
46 I am of the view that Mr. David is a very significant flight risk in light of his flight to Canada to avoid prosecution, his tenuous connection to this country and the likelihood that he could access false documents and hidden assets. Mr. David has shown himself to be willing to mislead the court and I do not believe that he would feel bound to comply with terms of a release imposed by this Court any more than he has felt bound to tell the truth to the Court. I am not of the view that $200,000.00 pledged by his uncle and wife would cause Mr. David to feel bound to comply or to remain in the jurisdiction. He is alleged to have been part of a multi-million dollar fraud. The amount available for bail is not sufficient to compel the compliance of Mr. David. Nor am I of the view that the presence of his pregnant wife would keep him in the jurisdiction. Mr. David fled the United States and did not see his 10-year old son for two years on his evidence. He has shown himself to be willing to abandon family members to avoid prosecution.
Conclusions
47 In light of the risk of flight and the risk of further offences if Mr. David were released, I have concluded that Mr. David must be detained pending his extradition hearing. The proposed plan is inadequate to meet the concerns given Mr. David's tenuous connection to Canada and the manner in which he is alleged to have committed the offences remotely through the Internet. I find that Mr. David's assurance that he would abide by terms imposed by the court not to be reliable. He has misled this Court or the court in New Jersey with respect to his residence. He misled this Court as to whether he paid child support. He misled this Court about his relationship with his son characterizing it as 'regular' when he did not see his son for two years. I am of the view that he came to Canada not to make a new start, but to evade prosecution and to continue his law practice without oversight or restriction. Ultimately, even with very good sureties, it is the applicant's ability to comply with terms that is the overriding consideration for the Court. I do not find that Mr. David would be amenable to supervision.
48 Therefore I find that the Crown has shown cause that Mr. David must be detained pending his extradition hearing. The hearing should be expedited and a hearing date set as soon as possible in light of Mr. David's detention.
M.D. FORESTELL J.
1 See United States of America v. Mordi, [2010] O.J. No. 5204 (S.C.J.)
2 [2011] O.J. No. 1383 (S.C.J.) para. 13
3 See United States of America v. Gillingham, [2007] O.J. No. 1270 (S.C.J.), paras. 8-10
4 [1992] 3 S.C.R. 665 at paras. 61 and 62
Friday, October 28, 2011
CONCERNS OVER EMPLOYER'S ABILITY TO PAY RESULT IN SKILLED WORKER REFUSAL
Thsi i sa classical case of "win the battle, lose the war": the court quashed the finding of misrepresentation but upheld the visa refusal in a Skilled Worker application over concerns that the employer's ability to pay the employee was limited.
Xu v. Canada (Minister of Citizenship and Immigration)
Between
Guofei Xu, Applicant, and
The Minister of Citizenship and Immigration, Respondent
[2011] F.C.J. No. 1432
2011 FC 784
Docket IMM-6324-10
Federal Court
Toronto, Ontario
Barnes J.
Heard: June 23, 2011.
Judgment: June 27, 2010.
(19 paras.)
_______________________________________
REASONS FOR JUDGMENT AND JUDGMENT
1 BARNES J.:-- This is an application by Guofei Xu seeking judicial review of a decision by a visa officer in Beijing, China refusing her application for a permanent resident visa in the skilled worker category. The visa officer found that Ms. Xu had misrepresented an offer of arranged Canadian employment and, in the result, she was determined to be inadmissible under ss 40(1) of the Immigration Refugee and Protection Act, SC 2001, c27, (IRPA).
Background
2 Guofei Xu is a citizen of the People's Republic of China (China). In 2005 she began studies at Laurentian University and the following year she graduated with a diploma in Global Business Administration. In early 2007, Ms. Xu obtained a work permit from the Respondent and shortly thereafter she began working for The Manco Group (Manco) as an office coordinator in Toronto. After her work permit expired in January 2008, Ms. Xu returned to China.
3 In December 2008 Manco offered Ms. Xu permanent employment as an office coordinator in its Toronto office with a plan to involve her in the set up of an affiliated office in China. The offer of employment included a starting salary of $39,800.00 per annum and benefits. On December 18, 2008 Manco applied to Service Canada for an Arranged Employment Opinion (AEO) and on March 8, 2009 the AEO was issued with the following caveat:
• This positive AEO, including the annex, must be submitted by the skilled worker to CIC as part of her permanent residency application. This AEO confirmation is only one of CIC's many requirements in issuing a permanent resident visa. It does not authorize the individual to enter, remain or work in Canada. That decision is the responsibility of the CIC.
4 Ms. Xu made her application for a permanent resident visa in the Federal Skilled Worker Class in May 2009. In order to verify the genuineness of Manco's offer of employment, a visa officer at the Canadian Embassy in Beijing, China asked Ms. Xu to provide corroborating income tax information for Manco and photographs of its business premises.
5 The President of Manco, Tony Mansour, responded by letter dated October 15, 2009. He provided the available documentation and pointed out that two of the requested Canada Revenue Agency (CRA) forms were not applicable to Manco. On December 17, 2009 the visa officer requested Manco's 2008 T2 corporate tax return and payroll list and its 2008 Business Notice of Assessment. By letter dated January 20, 2010 Mr. Mansour refused to provide the additional requested documentation on the following basis:
• We were surprised to know that you are requesting additional corporate tax information from us. Please be advised that we are a private corporation and are not obliged to disclose such information/documentation to any government agencies other than Revenue Canada. We are just trying to re-employ an employee whom we hired before, for an ordinary position of office coordinator, not a senior position with very high salary. And we have sufficient financial resources to cover that.
• Moreover, for your information, when we applied for the AEO for Belinda to Service Canada, as Applicant in that application, we have followed Service Canada's instructions and provided complete information and documentation to them.
• Back in October 2009, as request by you, we already provided to your office a lot of additional information and documents including our payroll information concerning the specific payroll account that Belinda is to be placed. We believe that would be sufficient enough for you to make your judgment. Therefore, we believe that you are asking too much and not in a position to provide such further documentation as you requested.
• [Emphasis in the original]
6 The visa officer was not satisfied with Manco's response and sent a fairness letter on March 30, 2010 to Ms. Xu setting out the following concerns:
• I have reasonable grounds to believe that you have not fulfilled the requirement put upon you by section 16(1) of the Immigration and Refugee Protection Act which states:
• 16(1) A person who makes an application must answer truthfully all questions put to them for the purpose of the examination and must produce a visa and all relevant evidence and documents that the officer reasonably requires.
• Specifically, I have concerns that the offer of employment in the Arranged Employment Opinion is not genuine and has been obtained solely for the purpose of meeting the requirements of the Skilled Worker Program and subsequently receiving permanent resident status in Canada.
• I have reviewed the financial and tax documents provided from your intended employer in Canada, The Manco Group. Based on these documents, I am not satisfied that this employer has the ability and intent to pay the wage offered ($39,800 per year) as per the Arranged Employment Opinion for the following reasons:
• - Based on the 2008 T4 Summary of Remuneration provided, the total employment income paid to employees was $51,925 with a total number of 4 T4 slips filed. This is an average of $12,981 per T4 slip filed.
• - Although requested, you did not provide a copy of the 2008 T2 - Corporation Income Tax Return and Business Notice of Assessment from your intended employer.
• - Although requested, you did not provide a payroll list indicating present employees and salaries paid from your intended employer.
• Based on the above, I also have concerns that you are not likely to accept and carry out the employment offered upon arrival in Canada.
• Please note that if it is found that you have engaged in misrepresentation in submitting your application for permanent residence in Canada, you may be found to be inadmissible under section 40(1)(a) of the Immigration and Refugee Protection Act. A finding of such inadmissibility would render you inadmissible to Canada for a period of two years according to section 40(2)(a):
• 40(1) A permanent resident or a foreign national is inadmissible for misrepresentation
• (a)
for directly or indirectly misrepresenting or withholding material facts relating to a relevant matter that induces or could induce an error in the administration of this Act
• 40(2) The following provisions govern subsection (1):
• (a)
the permanent resident or the foreign national continues to be inadmissible for misrepresentation for a period of two years following, in the case of a determination outside Canada, a final determination of inadmissibility under subsection (1) or, in the case of determination in Canada, the date the removal order is enforced.
• I would like to give you an opportunity to respond to this information. I will afford you 30 days from the receipt of this letter to make any representations in this regard. Please use the address noted at the top of the letter for all correspondence and clearly indicate your file number. If you do not respond to this request within the time outlined above, your application will be refused.
7 Mr. Mansour responded by letter dated April 9, 2010 stating that he was "shocked" by the suggestion of a misrepresentation. He attempted to explain the significance of some of the information he had previously provided but he again refused to submit Manco's corporate tax information on the basis that he was "not obliged" to do so. He concluded with the statement that the visa officer's allegation of misrepresentation "is truly insulting and groundless".
8 Once again the visa officer was unsatisfied with Manco's response and Ms. Xu's application for a visa was rejected by letter dated June 11, 2010. The visa officer's file notes provide the following rationale for the decision:
• I HAVE CONSIDERED THE ABOVE INFORMATION, BUT IT HAS NOT ALLEVIATED MY CONCERNS THAT THIS IS NOT A GENUINE OFFER OF EMPLOYMENT. WE HAVE NOT RECEIVED SUFFICIENT INFORMATION FROM THE AEO EMPLOYER TO BE SATISFIED THAT THIS COMPANY HAS SUFFICIENT RESOURCES TO HIRE THE APPLICANT AT THE WAGE STATED IN THE AEO ($39,800 PER YEAR). THE APPLICANT WAS ASKED TO PROVIDE A COPY OF THE 2008 T2 CORPORATION INCOME TAX RETURN, THE BUSINESS NOTICE OF ASSESSMENT, AND THE PAYROLL LIST FROM THE AEO EMPLOYER. NONE OF THESE WERE PROVIDED, AND THEREFORE IT IS NOT POSSIBLE TO HAVE AN ACCURATE PICTURE OF THE COMPANY'S FINANCIAL HEALTH IN ORDER TO DETERMINE WHETHER THE COMPANY INDEED HAS THE RESOURCES TO PAY THE APPLICANT'S SALARY.
• IN MY OPINION, THE APPLICANT HAS MISREPRESENTED THE FACT THAT THERE IS A GENUINE OFFER OF EMPLOYMENT BY PROVIDING AN ARRANGED EMPLOYMENT OPINION FROM A COMPANY THAT, BASED ON FINANCIAL DOCUMENTS PROVIDED, DOES NOT HAVE THE ABILITY TO PAY THE WAGE OFFERED IN THE AEO. THIS COULD HAVE LED TO AN ERROR IN THE ADMINISTRATION OF THE ACT BECAUSE IT COULD HAVE LED AN OFFICER TO BE SATISFIED THAT THE APPLICANT MET THE REQUIREMENTS OF THE ACT WITH RESPECT TO BEING ELIGIBLE FOR PROCESSING AS A SKILLED WORKER UNDER THE MINISTERIAL INSTRUCTIONS, AND ALSO WITH RESPECT TO POINTS AWARDED FOR ARRANGED EMPLOYMENT.
• AS THIS IS NOT A GENUINE OFFER OF EMPLOYMENT, I HAVE ALSO REMOVED THE 15 POINTS ASSOCIATED WITH AN AEO, BRINGING THE APPLICANT'S POINTS TOTAL TO 58.
• I THEREFORE RECOMMEND THAT THE APPLICANT BE MADE INADMISSIBLE TO CANADA UNDER SECTION A40 OF THE ACT.
9 It is from this decision that this application for judicial review arises.
Issue
10 Was the visa officer's decision unreasonable and made without appropriate regard to the evidence?
Analysis
11 I agree with counsel for the Respondent that the issues raised on this application are ones of mixed fact and law which attract the deferential standard of review of reasonableness: see Cao v Canada (MCI), 2010 FC 450, 367 FTR 153.
12 Ms. Xu contends that the visa officer's decision was unreasonable and made without due regard to the evidence. She argues that the visa officer failed to consider Manco's explanations of the tax information it had produced which, in her view, ought to have displaced any concern that Manco's offer of employment was not genuine.
13 The fundamental problem with this is that Manco's attempted explanation of its submitted tax information did not make a convincing case for its ability to employ Ms. Xu particularly in the face of its deliberate refusal to submit the corporate tax information requested by the visa officer.
14 The employer may have been correct in its assertion that it had no legal obligation to provide the supporting payroll and income tax evidence requested by the visa officer. This information was, however, clearly relevant and reasonably considered to be necessary to address the visa officer's stated concern about the genuineness of the employment offer. It was not the employer's role to decide what information would be sufficient to establish the genuineness of its employment offer and the visa officer had no obligation to accept Manco's assurances in the absence of the requested corroborating evidence. In the face of the intransigence of the employer, it should not have been a surprise to anyone involved that Ms. Xu's application was rejected.
15 The suggestion that the visa officer did not consider the employer's explanation of its submitted tax records is belied by the visa officer's express file references to that information. The heart of the visa officer's decision was that Manco had deliberately refused to produce material payroll information and that it was "not possible to have an accurate picture of the company's financial health in order to determine [if it had] the resources to pay [Ms. Xu's] salary". This was the basis for the visa officer's removal of 15 points from the eligibility assessment leaving Ms. Xu with insufficient points to qualify. These were eminently reasonable conclusions and there is no basis to set them aside on judicial review.
16 The visa officer's misrepresentation finding is, however, problematic. A finding of misrepresentation under section 40 of the IRPA is a serious matter which should not be made in the absence of clear and convincing evidence: see Baseer v Canada, 2004 FC 1005, 256 FTR 318. While a withholding of material information may be a basis for a finding of misrepresentation, here the refusal was that of Manco and not Ms. Xu. There is nothing in the record to show that Ms. Xu was complicit in the employer's decision - a decision which was apparently made for business reasons. The visa officer's decision makes a completely unsupported leap from the reasonable finding of insufficiency of evidence to one of misrepresentation. A misrepresentation is not proved where the evidence is found only insufficient to establish the necessary criteria for admissibility. As a result, I find that the misrepresentation finding was made without regard to the evidence and must be set aside.
17 What remains is the visa officer's decision to reject Ms. Xu's visa application on the merits. As noted above, there is no basis to interfere with that part of the decision.
Conclusion
18 This application for judicial review is allowed in part. The visa officer's finding of a misrepresentation under section 40 of the IPRA is set aside but the underlying finding that Ms. Xu had failed to establish an entitlement to a permanent resident visa is upheld.
19 Neither party proposed a certified question and no issue of general importance arises on this record.
JUDGMENT
THIS COURT'S JUDGMENT is that the visa officer's finding of a misrepresentation under section 40 of the IPRA is hereby set aside but in all other respects the application is dismissed.
BARNES J.
Xu v. Canada (Minister of Citizenship and Immigration)
Between
Guofei Xu, Applicant, and
The Minister of Citizenship and Immigration, Respondent
[2011] F.C.J. No. 1432
2011 FC 784
Docket IMM-6324-10
Federal Court
Toronto, Ontario
Barnes J.
Heard: June 23, 2011.
Judgment: June 27, 2010.
(19 paras.)
_______________________________________
REASONS FOR JUDGMENT AND JUDGMENT
1 BARNES J.:-- This is an application by Guofei Xu seeking judicial review of a decision by a visa officer in Beijing, China refusing her application for a permanent resident visa in the skilled worker category. The visa officer found that Ms. Xu had misrepresented an offer of arranged Canadian employment and, in the result, she was determined to be inadmissible under ss 40(1) of the Immigration Refugee and Protection Act, SC 2001, c27, (IRPA).
Background
2 Guofei Xu is a citizen of the People's Republic of China (China). In 2005 she began studies at Laurentian University and the following year she graduated with a diploma in Global Business Administration. In early 2007, Ms. Xu obtained a work permit from the Respondent and shortly thereafter she began working for The Manco Group (Manco) as an office coordinator in Toronto. After her work permit expired in January 2008, Ms. Xu returned to China.
3 In December 2008 Manco offered Ms. Xu permanent employment as an office coordinator in its Toronto office with a plan to involve her in the set up of an affiliated office in China. The offer of employment included a starting salary of $39,800.00 per annum and benefits. On December 18, 2008 Manco applied to Service Canada for an Arranged Employment Opinion (AEO) and on March 8, 2009 the AEO was issued with the following caveat:
• This positive AEO, including the annex, must be submitted by the skilled worker to CIC as part of her permanent residency application. This AEO confirmation is only one of CIC's many requirements in issuing a permanent resident visa. It does not authorize the individual to enter, remain or work in Canada. That decision is the responsibility of the CIC.
4 Ms. Xu made her application for a permanent resident visa in the Federal Skilled Worker Class in May 2009. In order to verify the genuineness of Manco's offer of employment, a visa officer at the Canadian Embassy in Beijing, China asked Ms. Xu to provide corroborating income tax information for Manco and photographs of its business premises.
5 The President of Manco, Tony Mansour, responded by letter dated October 15, 2009. He provided the available documentation and pointed out that two of the requested Canada Revenue Agency (CRA) forms were not applicable to Manco. On December 17, 2009 the visa officer requested Manco's 2008 T2 corporate tax return and payroll list and its 2008 Business Notice of Assessment. By letter dated January 20, 2010 Mr. Mansour refused to provide the additional requested documentation on the following basis:
• We were surprised to know that you are requesting additional corporate tax information from us. Please be advised that we are a private corporation and are not obliged to disclose such information/documentation to any government agencies other than Revenue Canada. We are just trying to re-employ an employee whom we hired before, for an ordinary position of office coordinator, not a senior position with very high salary. And we have sufficient financial resources to cover that.
• Moreover, for your information, when we applied for the AEO for Belinda to Service Canada, as Applicant in that application, we have followed Service Canada's instructions and provided complete information and documentation to them.
• Back in October 2009, as request by you, we already provided to your office a lot of additional information and documents including our payroll information concerning the specific payroll account that Belinda is to be placed. We believe that would be sufficient enough for you to make your judgment. Therefore, we believe that you are asking too much and not in a position to provide such further documentation as you requested.
• [Emphasis in the original]
6 The visa officer was not satisfied with Manco's response and sent a fairness letter on March 30, 2010 to Ms. Xu setting out the following concerns:
• I have reasonable grounds to believe that you have not fulfilled the requirement put upon you by section 16(1) of the Immigration and Refugee Protection Act which states:
• 16(1) A person who makes an application must answer truthfully all questions put to them for the purpose of the examination and must produce a visa and all relevant evidence and documents that the officer reasonably requires.
• Specifically, I have concerns that the offer of employment in the Arranged Employment Opinion is not genuine and has been obtained solely for the purpose of meeting the requirements of the Skilled Worker Program and subsequently receiving permanent resident status in Canada.
• I have reviewed the financial and tax documents provided from your intended employer in Canada, The Manco Group. Based on these documents, I am not satisfied that this employer has the ability and intent to pay the wage offered ($39,800 per year) as per the Arranged Employment Opinion for the following reasons:
• - Based on the 2008 T4 Summary of Remuneration provided, the total employment income paid to employees was $51,925 with a total number of 4 T4 slips filed. This is an average of $12,981 per T4 slip filed.
• - Although requested, you did not provide a copy of the 2008 T2 - Corporation Income Tax Return and Business Notice of Assessment from your intended employer.
• - Although requested, you did not provide a payroll list indicating present employees and salaries paid from your intended employer.
• Based on the above, I also have concerns that you are not likely to accept and carry out the employment offered upon arrival in Canada.
• Please note that if it is found that you have engaged in misrepresentation in submitting your application for permanent residence in Canada, you may be found to be inadmissible under section 40(1)(a) of the Immigration and Refugee Protection Act. A finding of such inadmissibility would render you inadmissible to Canada for a period of two years according to section 40(2)(a):
• 40(1) A permanent resident or a foreign national is inadmissible for misrepresentation
• (a)
for directly or indirectly misrepresenting or withholding material facts relating to a relevant matter that induces or could induce an error in the administration of this Act
• 40(2) The following provisions govern subsection (1):
• (a)
the permanent resident or the foreign national continues to be inadmissible for misrepresentation for a period of two years following, in the case of a determination outside Canada, a final determination of inadmissibility under subsection (1) or, in the case of determination in Canada, the date the removal order is enforced.
• I would like to give you an opportunity to respond to this information. I will afford you 30 days from the receipt of this letter to make any representations in this regard. Please use the address noted at the top of the letter for all correspondence and clearly indicate your file number. If you do not respond to this request within the time outlined above, your application will be refused.
7 Mr. Mansour responded by letter dated April 9, 2010 stating that he was "shocked" by the suggestion of a misrepresentation. He attempted to explain the significance of some of the information he had previously provided but he again refused to submit Manco's corporate tax information on the basis that he was "not obliged" to do so. He concluded with the statement that the visa officer's allegation of misrepresentation "is truly insulting and groundless".
8 Once again the visa officer was unsatisfied with Manco's response and Ms. Xu's application for a visa was rejected by letter dated June 11, 2010. The visa officer's file notes provide the following rationale for the decision:
• I HAVE CONSIDERED THE ABOVE INFORMATION, BUT IT HAS NOT ALLEVIATED MY CONCERNS THAT THIS IS NOT A GENUINE OFFER OF EMPLOYMENT. WE HAVE NOT RECEIVED SUFFICIENT INFORMATION FROM THE AEO EMPLOYER TO BE SATISFIED THAT THIS COMPANY HAS SUFFICIENT RESOURCES TO HIRE THE APPLICANT AT THE WAGE STATED IN THE AEO ($39,800 PER YEAR). THE APPLICANT WAS ASKED TO PROVIDE A COPY OF THE 2008 T2 CORPORATION INCOME TAX RETURN, THE BUSINESS NOTICE OF ASSESSMENT, AND THE PAYROLL LIST FROM THE AEO EMPLOYER. NONE OF THESE WERE PROVIDED, AND THEREFORE IT IS NOT POSSIBLE TO HAVE AN ACCURATE PICTURE OF THE COMPANY'S FINANCIAL HEALTH IN ORDER TO DETERMINE WHETHER THE COMPANY INDEED HAS THE RESOURCES TO PAY THE APPLICANT'S SALARY.
• IN MY OPINION, THE APPLICANT HAS MISREPRESENTED THE FACT THAT THERE IS A GENUINE OFFER OF EMPLOYMENT BY PROVIDING AN ARRANGED EMPLOYMENT OPINION FROM A COMPANY THAT, BASED ON FINANCIAL DOCUMENTS PROVIDED, DOES NOT HAVE THE ABILITY TO PAY THE WAGE OFFERED IN THE AEO. THIS COULD HAVE LED TO AN ERROR IN THE ADMINISTRATION OF THE ACT BECAUSE IT COULD HAVE LED AN OFFICER TO BE SATISFIED THAT THE APPLICANT MET THE REQUIREMENTS OF THE ACT WITH RESPECT TO BEING ELIGIBLE FOR PROCESSING AS A SKILLED WORKER UNDER THE MINISTERIAL INSTRUCTIONS, AND ALSO WITH RESPECT TO POINTS AWARDED FOR ARRANGED EMPLOYMENT.
• AS THIS IS NOT A GENUINE OFFER OF EMPLOYMENT, I HAVE ALSO REMOVED THE 15 POINTS ASSOCIATED WITH AN AEO, BRINGING THE APPLICANT'S POINTS TOTAL TO 58.
• I THEREFORE RECOMMEND THAT THE APPLICANT BE MADE INADMISSIBLE TO CANADA UNDER SECTION A40 OF THE ACT.
9 It is from this decision that this application for judicial review arises.
Issue
10 Was the visa officer's decision unreasonable and made without appropriate regard to the evidence?
Analysis
11 I agree with counsel for the Respondent that the issues raised on this application are ones of mixed fact and law which attract the deferential standard of review of reasonableness: see Cao v Canada (MCI), 2010 FC 450, 367 FTR 153.
12 Ms. Xu contends that the visa officer's decision was unreasonable and made without due regard to the evidence. She argues that the visa officer failed to consider Manco's explanations of the tax information it had produced which, in her view, ought to have displaced any concern that Manco's offer of employment was not genuine.
13 The fundamental problem with this is that Manco's attempted explanation of its submitted tax information did not make a convincing case for its ability to employ Ms. Xu particularly in the face of its deliberate refusal to submit the corporate tax information requested by the visa officer.
14 The employer may have been correct in its assertion that it had no legal obligation to provide the supporting payroll and income tax evidence requested by the visa officer. This information was, however, clearly relevant and reasonably considered to be necessary to address the visa officer's stated concern about the genuineness of the employment offer. It was not the employer's role to decide what information would be sufficient to establish the genuineness of its employment offer and the visa officer had no obligation to accept Manco's assurances in the absence of the requested corroborating evidence. In the face of the intransigence of the employer, it should not have been a surprise to anyone involved that Ms. Xu's application was rejected.
15 The suggestion that the visa officer did not consider the employer's explanation of its submitted tax records is belied by the visa officer's express file references to that information. The heart of the visa officer's decision was that Manco had deliberately refused to produce material payroll information and that it was "not possible to have an accurate picture of the company's financial health in order to determine [if it had] the resources to pay [Ms. Xu's] salary". This was the basis for the visa officer's removal of 15 points from the eligibility assessment leaving Ms. Xu with insufficient points to qualify. These were eminently reasonable conclusions and there is no basis to set them aside on judicial review.
16 The visa officer's misrepresentation finding is, however, problematic. A finding of misrepresentation under section 40 of the IRPA is a serious matter which should not be made in the absence of clear and convincing evidence: see Baseer v Canada, 2004 FC 1005, 256 FTR 318. While a withholding of material information may be a basis for a finding of misrepresentation, here the refusal was that of Manco and not Ms. Xu. There is nothing in the record to show that Ms. Xu was complicit in the employer's decision - a decision which was apparently made for business reasons. The visa officer's decision makes a completely unsupported leap from the reasonable finding of insufficiency of evidence to one of misrepresentation. A misrepresentation is not proved where the evidence is found only insufficient to establish the necessary criteria for admissibility. As a result, I find that the misrepresentation finding was made without regard to the evidence and must be set aside.
17 What remains is the visa officer's decision to reject Ms. Xu's visa application on the merits. As noted above, there is no basis to interfere with that part of the decision.
Conclusion
18 This application for judicial review is allowed in part. The visa officer's finding of a misrepresentation under section 40 of the IPRA is set aside but the underlying finding that Ms. Xu had failed to establish an entitlement to a permanent resident visa is upheld.
19 Neither party proposed a certified question and no issue of general importance arises on this record.
JUDGMENT
THIS COURT'S JUDGMENT is that the visa officer's finding of a misrepresentation under section 40 of the IPRA is hereby set aside but in all other respects the application is dismissed.
BARNES J.
INVESTOR DID NOT MEET REGULATORY REQUIREMENTS
Rare case on Investors recently decided. the Court focused on the officer's decision on lack of business experience. Decisions in investor cases are few, so this case has important ramifications.
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Baloul v. Canada (Minister of Citizenship and Immigration)
Between Hana Baloul, Applicant, and
The Minister of Citizenship and Immigration, Respondent
The Minister of Citizenship and Immigration, Respondent
[2011] F.C.J. No. 1437
2011 FC 1151
Docket IMM-7232-10
Federal Court
Montréal, Quebec
Noël, acting C.J.
Heard: October 5, 2011.
Judgment: October 14, 2011.
Docket IMM-7232-10
Federal Court
Montréal, Quebec
Noël, acting C.J.
Heard: October 5, 2011.
Judgment: October 14, 2011.
(27 paras.
REASONS FOR JUDGMENT AND JUDGMENT
1 NOËL, acting C.J.:-- Hana Baloul, the applicant, seeks judicial review of a decision dated October 18, 2010, in which an immigration officer at the Canadian Embassy in Paris refused to grant the applicant status as a permanent resident in the investor class under the provisions of the Immigration and Refugee Protection Act, SC 2001, c 26 [IRPA]. Leave was granted on July 7, 2011.
I. Background
2 Ms. Baloul submitted an application for permanent residence at the Canadian Consulate General in Buffalo, New York, in November of 2003. Based on her supporting documentation, Ms. Baloul was deemed to meet the definition of investor for the years 2000 to 2002 (Trial Record at 291, Computer Assisted Immigration Processing System [CAIPS] notes for November 2, 2005).
3 According to the CAIPS notes on record, the application could not proceed, as the background results for Ms. Baloul's husband were still pending. An interview with Mr. Baloul was scheduled for August 26, 2008, and his attendance was confirmed on June 3, 2008. The interview was held as scheduled, but Mr. Baloul did not attend, unable to secure a visitor visa to the United States. As a result, the file was transferred to the Canadian embassy in Paris, where Mr. Baloul could more easily attend from his home in Brussels, Belgium (Trial Record at 291, 292 and 304, CAIPS notes for September 6, 2006, April 7, June 3, August 26, and September 10, 2008).
4 The applicant's version of the facts differs from the account found in the Trial Record. Ms. Baloul explains she was asked to attend the interview in Buffalo, was told her interview went well, and that she would be advised of the agent's decision shortly thereafter. But she also indicates being asked near the end of the interview why her husband was absent and that she replied that the notice of interview did not request his presence. It was then suggested that her husband could be interviewed in Europe. At any rate, Ms. Baloul received notice on November 10, 2008, that her application was transferred to the Canadian Embassy in Paris (Applicant's Record at 11-12, Applicant's Affidavit at paras 11-13).
5 In August of 2010, the applicant received a notice to attend an interview in Paris, scheduled for October 14, 2010. Ms. Baloul and her husband attended the interview and a final decision was rendered by the immigration officer on October 18, 2010.
II. Applicable Law and Impugned Decision
6 Section 90 of the Immigration and Refugee Protection Regulations, SOR 2002/227 [IRPR] provides that a foreign national applying for permanent residency as a member of the investor class must meet the definition of "investor" as set out in subsection 88(1) of the IRPR. The first of three criteria require the foreign national to have "business experience", defined as a minimum of two years of experience in either "the management of a qualifying business and the control of a percentage of equity of the qualifying business" or "management of at least five full-time job equivalents per year in a business".
7 In her decision, the immigration officer wrote that the applicant had not satisfied her of her business experience, failing to demonstrate that she took part in the management of Marwan Oulabi Company: "You, yourself, described yourself as a human resources supervisor and a control quality operator during the interview. You failed to demonstrate that you were fully involved as a decision maker in this company" (Applicant's Record at 6).
III. Position of the Parties
8 The applicant's arguments can be grouped into two categories. First, the applicant questions the immigration officer's analysis of the evidence, claiming she ignored or misconstrued relevant evidence, made unreasonable inferences, and considered irrelevant and extraneous matters. The second set of arguments raises questions of procedural fairness, with respect to both the notice given as to the purpose of the interview and the language difficulties and resulting need for translation.
9 For its part, the respondent submits that the immigration officer's analysis was reasonable, relying on contradictions and inconsistencies emanating from the applicant's oral testimony and evidence. The respondent also contends that there was no breach of procedural fairness. The officer raised her concerns during the interview, the applicant was given the opportunity to respond, and there is no duty to seek further clarification or provide a fairness letter before or after the interview.
IV. Issues and Standard of Review
10 The following issues will be reviewed by this Court:
Did the officer err in determining that the applicant did not have the required management experience?
Did the officer fail to make his decision in accordance with the principles of procedural fairness?
11 The immigration officer deciding whether an applicant possesses the management experience requirement under the IRPR is entitled to a high level of deference (Nissab v. Canada (Minister of Citizenship and Immigration), 2008 FC 25, [2008] F.C.J. No. 57). As a result, the officer's assessment of the evidence put forward by the applicant is a determination of fact and law reviewable under the standard of reasonableness, while issues raised with respect to procedural fairness are reviewable on a standard of correctness (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 SCR 190 [Dunsmuir]).
V. Analysis
Did the officer err in determining that the applicant did not have the required management experience?
12 First I would clarify that it is not for this Court to appreciate the applicant's qualifications and that this Court has only to verify the reasonableness of the officer's decision. At issue is the role the applicant played in managing Marwan Oulabi Company or its employees. Ms. Baloul contends that she submitted persuasive evidence and documents regarding her business experience which was ignored, misconstrued or misapprehended. The applicant points to three supporting documents, of which only one offers a third-party description of her role at Marwan Oulabi Company.
13 A letter signed by the company's accountant states that the management of the company has been run in partnership by Marwan Oulabi, Ms. Baloul, and her husband and that the partners set the policy business goals and make the major decisions as to the operation of the company. The letter adds that: "[b]esides being part of the management team, Ms. Hana Baloul also takes part in supervising the operation of the business on a part time basis and has been doing this since 1995 until 2002" (Applicant's Record at 28). Another document describing Ms. Baloul's role, which she did not raise in her written submissions, states that she was working for the company from 1999 to 2002 and "had done great in completing all the administrative procedures, had good work ethics and was excelled with good manners and conduct [sic]" (Trial Record at 564).
14 In the officer's opinion, the supporting documentation did not allow her to determine the applicant's role in the management of the company (Respondent's Record, Affidavit de Constance Terrier at para 7). Given the somewhat differing and broad descriptions of Ms. Baloul's role, it was reasonable for the immigration officer to conclude that the documentation did not clearly establish eligibility and that an interview was required (Immigration Manual, OP 9 - Investors at s 5.6).
15 During the interview, the applicant was asked to describe her role in the management of Marwan Oulabi Company. According to the CAIPS notes (Applicant's Record at 7-9), Ms. Baloul indicated she supervised personnel and controlled production, repeating both terms without providing greater detail. Once a translator was provided, Ms. Baloul was more precise, explaining that she supervised the arrival of employees as well the quantity and quality of their work. After discussing the applicant's presence at the site on a full-time basis from 2000 to 2002, Ms. Baloul was asked once again to describe her role and responsibilities. Again, she explained that she supervised employees and production.
16 The onus was on the applicant to provide sufficient evidence to satisfy the immigration officer that she met the statutory requirements (Liu v. Canada (Minister of Citizenship and Immigration), 2006 FC 1025, [2006] F.C.J. No. 1289). Subsection 88(1) of the IRPR provides that, to be considered an investor, an applicant must have business experience in either the management of a qualifying business or the management of at least five full-time employees in a business.
17 The applicant answered no when asked whether she had any responsibility in managing the company's finances; no when asked whether she had any contact with clients or suppliers; and no when asked whether she took any independent decision as to organizing production or hiring employees. The applicant confirmed other individuals were in charge of managing staff and production procedures. The applicant added that her role was to ensure and confirm that the company ran properly so that the money invested by her husband was well utilized.
18 The onus was on Ms. Baloul to provide sufficient credible evidence in support of her application. Unfortunately, she did not meet that onus. The immigration officer's conclusions were reasonably open to her and respect the principles of justification, transparency and intelligibility (Dunsmuir, above, at para 47). The applicant had to satisfy the officer that she fully qualified under the IRPR and possessed management experience, but failed to do so through either supporting documentation or the interview.
19 Before moving to the issue of procedural fairness, I would like to suggest the following in order to facilitate a proper interpretation of the IRPR. While the IRPR defines both the terms "investor" and "business experience", it does not define the term "management". The Immigration Manual is also silent on this question, breaking down "business experience" into three criteria: qualifying business; time; and role (Immigration Manual, OP 9 - Investors at s 8.2). The first two criteria are examined in greater detail in sections 8.3 and 8.5, but the manual remains silent on the "role" criteria, synonymous with the term "management" left undefined in the IRPR. Without providing any guidance on this point, immigration officers are left to determine on their own the necessary responsibilities fitting the "management" requirement. This has the potential to lead to arbitrary and differing decisions on the same set of facts, especially given the shared meanings of terms such as "managing" and "supervising" and the potential difficulties of translating business terms from one language to another.
Did the officer fail to make his decision in accordance with the principles of procedural fairness?
20 The applicant raises an issue of procedural fairness with respect to language and translation and suggests that these may have played a part in the officer's final determination. The immigration officer is criticized for speaking too quickly and not immediately offering the assistance of an interpreter when the applicant's difficulty communicating in English became apparent. The qualifications of the person called in to interpret is also put into question, as is the fact that at times, the interpreter and the officer communicated with each other in French, which the applicant does not understand.
21 The applicant received a notice to attend the interview in the form of a letter, dated August 10, 2010. The two page letter included the following clear instructions (Respondent's Record, Exhibit C at 2):
· The Immigration Officer will conduct the interview in English or French. The information you provide to us during the interview plays an important role in determining your ability to qualify to immigrate to Canada. If you cannot communicate easily in either English or French, you must present yourself at the interview with a professional interpreter [...] capable of reading, writing and speaking either in English or French.
· [...]
· If you decide to come to the interview without a professional interpreter and we determine that you cannot communicate easily in English or French, the Immigration officer will make a decision on your application based on the information contained in your file and the information provided at the interview. If you cannot answer the interview questions posed by the Immigration officer, your application may be refused [emphasis in original].
The applicant had sufficient time to obtain an interpreter, but chose not to. The risks associated with this choice were spelled out in unequivocal terms and the applicant chose to assume these risks. I would add that the onus placed on the applicant to provide an interpreter has been upheld by this Court (Kazi v. Canada (Minister of Citizenship and Immigration), 2002 FCT 733 at paras 16 -18, [2002] F.C.J. No. 969).
22 At the outset of the hearing, the immigration officer indicates having asked the applicant if she understood her, whether she was speaking too quickly, and whether there were any difficulties understanding her (Respondent's Record, Affidavit de Constance Terrier at para 18). The applicant admits she did not raise any objections or concerns regarding her language difficulties (Applicant's Additional Affidavit at para 13), incidentally contradicting her earlier statement that she demanded the officer speak more slowly (Applicant's Record at 16, Applicant's Affidavit at para 39).
23 When it became apparent the applicant was having difficulties understanding and answering the immigration officer's questions, for the benefit of the applicant and though she was not required to, the officer offered to invite a colleague to interpret. The applicant agreed to this suggestion of her own volition and cannot now question the quality of this interpretation when she was well aware of the consequences of not arranging for her own professional interpreter. Furthermore, it is well established law that where there are translation problems, the complainant must raise the problem at the first reasonable opportunity (Oei v. Canada (Minister of Citizenship and Immigration), 2002 FCT 466 at paras 40 and 42, [2002] F.C.J. No. 600; Kompanets v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 726 at para 9, 196 FTR 61; which the applicant did not do in this case.
24 Ms. Baloul also contests the immigration officer's failure to notify her of any of her concerns through a fairness letter, especially in light of the fact immigration officers in Buffalo had already determined she met the definition of investor and she was of the view this second interview in Paris was meant for her husband. On this point I adopt this Court's conclusion in Shabashkevich v. Canada (Minister of Citizenship and Immigration), 2003 FCT 361 at para 22, [2003] F.C.J. No. 510 [Shabashkevich], where faced with a very similar situation, the Court was satisfied that there was no denial of procedural fairness. I am further supported by previous findings of this Court that the principle of functus officio applies only to the final decision to issue a visa and that the immigration officer making this final determination is statutorily obligated to assess the applicant's application, regardless of any findings made by previous officers (Lo v. Canada (Minister of Citizenship and Immigration), 2002 FCT 1155, [2002] F.C.J. No. 1596; Brysenko v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1443, 193 FTR 129). Having said that, I note that the CAIPS notes reveal that the immigration officer did raise some concerns about the explanations given and that Ms. Baloul had an opportunity to explain further. I conclude from this that even on the facts of this case, the immigration officer fully assumed her duties.
25 Finally, regarding any duty imposed on the officer to raise her concerns about the applicant's business experience, I reiterate that the applicant was given ample opportunity over the course of a two hour interview to describe her role managing Marwan Oulabi Company. The applicant was asked repeatedly to provide further details, but was unable to satisfy the immigration officer that she met the IRPR requirements. There was no additional obligation for the officer to clarify the application, reach out and make the applicant's case, apprise the applicant of her concerns relating to whether the requirements set out in the legislation have been met, or to provide the applicant with a "running-score" at every step of the application process (Pan v. Canada (Minister of Citizenship and Immigration), 2010 FC 838 at para 28, [2010] F.C.J. No. 1037).
26 As such, the impugned decision that Ms. Baloul did not meet the definition of "investor" as set out in subsection 88(1) of the IRPR is reasonable, there was no denial of procedural fairness, and the application is denied.
27 Counsels for the parties were asked whether they had a question to propose for certification. None were suggested.
JUDGMENT
THIS COURT'S JUDGMENT is that the application for judicial review is dismissed. No question is certified.
MARRIAGE STORY SHINES LIGHT ON PROPOSED LEGISLATIVE CHANGES
See story reported by the Toronto Star. Notwithstanding the contents of the article, the federal government is considering a "probationary period" for sponsored spouses before their residency may become final. This is a sensible approach that will align Canada with the United States and Australia amongst other countries and assist in the prevention of marriages of convenience, entered primarily for immigration purposes.
Toronto News: Rumours of sham marriage enrage Punjabi community after suicide - thestar.com
Rumours of sham marriage enrage Punjabi community after suicide
October 27, 2011
Raveena Aulakh
A new bride, a drowned husband and some sordid allegations — the Indo-Canadian community in Toronto and Vancouver is once again confronting the maelstrom of fraudulent marriages.
“I have never seen so much anger before,” said Rajinder Saini, host of Parvasi Radio, a daily Punjabi talk show in Toronto.
“Maybe because a man is dead.”
At the heart of this unfolding drama, which has had the Punjabi airwaves chattering non-stop for the past week, is a 19-year-old woman.
Harmanjit Dhami, petite and doe-eyed, married Gurdip Saroa, a 22-year-old trucker from Surrey, B.C., in India in February. It was an arranged marriage, attended by more than 1,000 people. The couple lived there for two months and, by all accounts, were happy.
Saroa returned to Surrey and filed sponsorship papers. Dhami landed in Vancouver on Oct. 12.
Within a week, he would be dead.
“This is all bad, so bad,” a teary Rajwinder Brahmvir, Saroa’s sister, said in an interview from Surrey.
She said Dhami told her a day after arriving in Canada that she had married Saroa to come here and that she had no intention of living with him.
For the next four days, there were continuous fights in the house.
At about 1 p.m. on Oct. 17, the couple went out to buy tickets for a trip to Brampton where Dhami’s uncle lives. An hour later, Brahmvir says, she got a call from her brother. “He was sobbing and said Harman had run away from the car,” she said. “He said sorry and hung up.”
Saroa was seen jumping into the Fraser River from the Pattullo Bridge. His body has not been found.
At her uncle’s home in Brampton, Dhami refuted all allegations.
She said her husband sexually assaulted her. “My first night at his home and he hit me,” she said, choking back tears. It continued for the next three days, she added.
Recalling the events of Oct. 17, she said Saroa took her to an isolated place and tried to strangle her with a phone charger cord in the car.
“Look at this,” she said, showing strangulation marks on her neck. “I managed to jump out and I ran.”
A Good Samaritan called 911 and police were soon at the scene.
An RCMP spokesperson said officers are investigating a missing person case and an assault case. No charges have been laid.
So, did Dhami marry Saroa to come to Canada? And why did he jump into the river? Was he lovelorn or was it shame that she would tell people he was assaulting her?
The couple’s story is a typical he-said, she-said conflict. But in a community rocked by fraudulent marriages, where people wed to immigrate and then abandon their spouses, the incident has sparked universal rage.
Dhami has been called names. There are demands to deport her. Some have said her family should be ostracized. But no one has asked her what happened in Surrey in those four days and no one, except her uncle, has defended her.
Saini acknowledges that.
“It’s a big issue in the community,” the radio host said. “If people think there’s even a hint of fraud, they want something done.”
Fair enough, said Deepa Mattoo, who works for the South Asian Legal Clinic in Toronto. “But it shouldn’t be a media trial like this,” she said. “It stigmatizes women.”
Mattoo, like many other social workers, worries that once new legislation to curb marriage fraud kicks in, women may be held ransom to their immigration status.
In 2009, nearly 45,000 people immigrated to Canada as spouses. Citizenship and Immigration Canada says 1,000 fraudulent marriages are reported annually.
Ottawa is proposing legislation to prevent a person who has been sponsored to come to Canada as a spouse from sponsoring a new partner for five years.
Another proposal is for a period of conditional permanent residence requiring a recently sponsored spouse to stay in a “bona fide” relationship with their sponsor after becoming a permanent resident. The period could be two years or more.
Mattoo said the legislation will be a death sentence for abused women. “They’ll be stuck in that abusive relationship.”
Meanwhile, Dhami is weighing her options.
“I want to stay in Canada and study,” she said. “I can do it.”
Toronto News: Rumours of sham marriage enrage Punjabi community after suicide - thestar.com
Rumours of sham marriage enrage Punjabi community after suicide
October 27, 2011
Raveena Aulakh
A new bride, a drowned husband and some sordid allegations — the Indo-Canadian community in Toronto and Vancouver is once again confronting the maelstrom of fraudulent marriages.
“I have never seen so much anger before,” said Rajinder Saini, host of Parvasi Radio, a daily Punjabi talk show in Toronto.
“Maybe because a man is dead.”
At the heart of this unfolding drama, which has had the Punjabi airwaves chattering non-stop for the past week, is a 19-year-old woman.
Harmanjit Dhami, petite and doe-eyed, married Gurdip Saroa, a 22-year-old trucker from Surrey, B.C., in India in February. It was an arranged marriage, attended by more than 1,000 people. The couple lived there for two months and, by all accounts, were happy.
Saroa returned to Surrey and filed sponsorship papers. Dhami landed in Vancouver on Oct. 12.
Within a week, he would be dead.
“This is all bad, so bad,” a teary Rajwinder Brahmvir, Saroa’s sister, said in an interview from Surrey.
She said Dhami told her a day after arriving in Canada that she had married Saroa to come here and that she had no intention of living with him.
For the next four days, there were continuous fights in the house.
At about 1 p.m. on Oct. 17, the couple went out to buy tickets for a trip to Brampton where Dhami’s uncle lives. An hour later, Brahmvir says, she got a call from her brother. “He was sobbing and said Harman had run away from the car,” she said. “He said sorry and hung up.”
Saroa was seen jumping into the Fraser River from the Pattullo Bridge. His body has not been found.
At her uncle’s home in Brampton, Dhami refuted all allegations.
She said her husband sexually assaulted her. “My first night at his home and he hit me,” she said, choking back tears. It continued for the next three days, she added.
Recalling the events of Oct. 17, she said Saroa took her to an isolated place and tried to strangle her with a phone charger cord in the car.
“Look at this,” she said, showing strangulation marks on her neck. “I managed to jump out and I ran.”
A Good Samaritan called 911 and police were soon at the scene.
An RCMP spokesperson said officers are investigating a missing person case and an assault case. No charges have been laid.
So, did Dhami marry Saroa to come to Canada? And why did he jump into the river? Was he lovelorn or was it shame that she would tell people he was assaulting her?
The couple’s story is a typical he-said, she-said conflict. But in a community rocked by fraudulent marriages, where people wed to immigrate and then abandon their spouses, the incident has sparked universal rage.
Dhami has been called names. There are demands to deport her. Some have said her family should be ostracized. But no one has asked her what happened in Surrey in those four days and no one, except her uncle, has defended her.
Saini acknowledges that.
“It’s a big issue in the community,” the radio host said. “If people think there’s even a hint of fraud, they want something done.”
Fair enough, said Deepa Mattoo, who works for the South Asian Legal Clinic in Toronto. “But it shouldn’t be a media trial like this,” she said. “It stigmatizes women.”
Mattoo, like many other social workers, worries that once new legislation to curb marriage fraud kicks in, women may be held ransom to their immigration status.
In 2009, nearly 45,000 people immigrated to Canada as spouses. Citizenship and Immigration Canada says 1,000 fraudulent marriages are reported annually.
Ottawa is proposing legislation to prevent a person who has been sponsored to come to Canada as a spouse from sponsoring a new partner for five years.
Another proposal is for a period of conditional permanent residence requiring a recently sponsored spouse to stay in a “bona fide” relationship with their sponsor after becoming a permanent resident. The period could be two years or more.
Mattoo said the legislation will be a death sentence for abused women. “They’ll be stuck in that abusive relationship.”
Meanwhile, Dhami is weighing her options.
“I want to stay in Canada and study,” she said. “I can do it.”
Thursday, October 27, 2011
REPORTS: SPOUSAL SPONSORSHIPS TO BE SUBJECT TO NEW RULES
This is big news, the changes are not yet detailed in the news report, but they are long overdue.
Ottawa moves to curb marriages of convenience - The Globe and Mail
Ottawa moves to curb marriages of convenience - The Globe and Mail
HUNGARIAN ROMA FLOODING EFUGEE SHELTERS
See article from the Toronto Sun and related video. This is not new, it has been going on for quite some time and no one dares to stop it. This is one of the best examples why Canada is generally viewed as a doormat: asylum seekers who are citizens of a EU member country enter Canada, claim "refugee" status, get social assistance, welfare, legal aid, free medical care, and manage to stay for a few years courtesy of the taxpayers, while Skilled Workers and entrepreneurs wait several years in visa posts abroad and get a runaround until they are allowed to come to work in Canada legally. I would say that our priorities are misplaced. Wouldn't you say that? It is time for the imposition of a visa on Hungary, same as was done previously with the Czech Republic.
Video: Refugee influx at Pearson Home Toronto Sun
Video: Refugee influx at Pearson Home Toronto Sun
Wednesday, October 26, 2011
COURT FINES EDMONTON COMPANY OVER ILLEGALS
Edmonton company fined for foreign workers - Edmonton - CBC News
Edmonton company fined for foreign workers
CBC News
Posted: Oct 25, 2011 2:50 PM MT
Last Updated: Oct 25, 2011 2:41 PM MT
An Edmonton company was fined for hiring foreign workers without authorization, according to the Canada Border Services Agency.
Empire Drywall pleaded guilty Tuesday in Edmonton Provincial Court to four counts of employing temporary foreign workers lacking proper authorization.
They were fined $9,000 for each count, totaling $36,000.
The Canada Border Services Agency — responsible for investigating people in violation of the Immigration and Refugee Protection Act — launched an investigation on the Empire Drywall in Sept. 2008.
This was the biggest imposed fine in the province since 2006.
Edmonton company fined for foreign workers
CBC News
Posted: Oct 25, 2011 2:50 PM MT
Last Updated: Oct 25, 2011 2:41 PM MT
An Edmonton company was fined for hiring foreign workers without authorization, according to the Canada Border Services Agency.
Empire Drywall pleaded guilty Tuesday in Edmonton Provincial Court to four counts of employing temporary foreign workers lacking proper authorization.
They were fined $9,000 for each count, totaling $36,000.
The Canada Border Services Agency — responsible for investigating people in violation of the Immigration and Refugee Protection Act — launched an investigation on the Empire Drywall in Sept. 2008.
This was the biggest imposed fine in the province since 2006.
Tuesday, October 25, 2011
ACTIONS OF INDIAN WHILE IN POLICE SERVICE PREVENT IMMIGRATION
The case below outlines what actions may constitute grounds for inadmissibility in Canada in connection with the performace of duties for a police force or armed forces.
· 1.
· 2.
· 11.
· (2)
· 35.
· (2)
· 36.
· (2)
· (3)
· 6.
· (3)
· (2)
· 11.
· (2)
· 35.
· (2)
· 36.
· (2)
· (3)
· 6.
· (3)
· (2)
Dhanday v. Canada (Minister of Citizenship and Immigration)
Between Lachhman Dass Dhanday, Applicant, and
The Minister of Citizenship and Immigration, Respondent
The Minister of Citizenship and Immigration, Respondent
[2011] F.C.J. No. 1422
2011 FC 1166
Docket IMM-453-11
Federal Court
Montréal, Quebec
Scott J.
Heard: October 11, 2011.
Judgment: October 14, 2011.
Docket IMM-453-11
Federal Court
Montréal, Quebec
Scott J.
Heard: October 11, 2011.
Judgment: October 14, 2011.
(28 paras.)
REASONS FOR JUDGMENT AND JUDGMENT
SCOTT J.:--
I. Introduction
1 This is an application for judicial review of a decision of the Immigration Officer, Eric Verner (the officer), at the High Commission of Canada in New Delhi, India, dated December 23, 2010, determining that Mr. Lachhman Dass Dhanday (the applicant) does not meet the requirements for a permanent resident visa because there are reasonable grounds to believe that he is a member of the inadmissible class of persons described in subsection 35(1)(a) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA ].
2 The officer also found that the applicant is inadmissible under subsection 36(2)(b) of the IRPA on grounds of criminality for committing an act outside Canada that is an offence in the place where it was committed and that, if committed in Canada, would constitute an indictable offence under an Act of Parliament.
3 For the reasons that follow, this application for judicial review is dismissed.
II. Facts
4 The applicant is an assistant sub-inspector for the Punjab Police Force in the Province of Punjab, India where he started to work as a constable in 1973.
5 The applicant applied for a permanent resident visa in the family class and was sponsored by one of his children who presently lives in Canada.
6 The applicant was interviewed by the officer on December 8, 2010.
7 During the interview, the officer questioned the applicant on his duties as a police officer and the manner in which these were carried out.
8 The Computer-Assisted Immigration Processing System notes (CAIPS notes) indicated that the applicant denied at first having used any form of coercion during the interrogation of suspects. Then, the officer questioned the applicant whether he knew about the methods used by the Central Intelligence Agency [CIA] to obtain information from suspects. When asked if he ever applied such methods to interrogate suspects, the applicant said "I used methods that don't leave any marks, shake them, suffocate them, hit them but carefully not to leave any marks". He then confirmed having used the log techniques "but wrapped in a cloth so it does not leave any marks".
9 The officer then questioned him on the legality of these interrogation methods. The applicant replied that "it was to obtain justice". When asked by the officer if he regretted having used such methods, the applicant stated that "we only used those methods when we were 100% sure that the suspects had done the crime. These people had done crime and had to be punished". The officer continued his questioning and stated that there are court systems to punish or convict those who have committed crimes, the applicant answered "yes, but these people had been brutal and if we don't do it, how can we control crime".
10 The officer concluded that the acts committed during his career as a police officer in India constitute an offence under sections 4 to 7 of the Crimes Against Humanity and War Crimes Act, SC 2000, c 24 [CAHWCA ]. He also concluded that the acts acknowledged by the applicant are defined as acts of torture under section 269.1(1) of the Canadian Criminal Code, RSC, 1985, c C-46. Consequently the officer wrote in his decision that the applicant was a member of an inadmissible class of persons under both subsection 35(1) (a) and subsection 36(2) (b) of the IRPA.
III. Legislation
11 The applicable legislation is appended to this decision.
IV. Issues and Standard of Review
A. Issues
· 1. Did the officer breach his duty of procedural fairness?
· 2. Did the officer err in determining that the applicant was also inadmissible under subsection 36(2)(b) of the IRPA?
B. Standard of Review
12 Issues raised in respect of procedural fairness are reviewable on the standard of correctness (Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190 at paras 55 and 79; Canada (Minister of Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009] 1 SCR 339 at para 43).
13 The issue of determining whether an individual belongs to a certain class under the IRPA is reviewable on a standard of reasonableness (Abdilahi v Canada (Minister of Citizenship and Immigration), 2005 FC 1173, [2005] FCJ No 1431 at para 6; Mugu v Canada (Minister of Citizenship and Immigration), 2009 FC 384, [2009] FCJ 457 at para 34).
V. Parties' submissions
A. Applicant's submissions
14 The applicant acknowledges that he used multiple forms of coercion to obtain information from suspects while on duty as a police officer. Nevertheless, he submits that he was never asked nor did he answer questions on the said admissions.
15 The applicant also claims that considering the serious consequences of being inadmissible on grounds defined in subsection 35(1)(a) of the IRPA, the officer should have brought his concerns to the applicant's attention and provide him with the opportunity of responding to these concerns.
16 The applicant submits that a simple signature by the applicant informing the officer he understood his concerns would have sufficed to ensure procedural fairness.
17 As for the refusal under subsection 36(2)(b) of the IRPA, the applicant claims that the officer did not have any evidence before him that the manner in which force was used while interrogating suspects in India constituted an offence in both India and Canada as required by the IRPA. The applicant therefore takes the position that this omission constitutes a reviewable error in law based on a standard of correctness.
B. Respondent's submissions
18 The respondent claims that contrary to what is alleged in the applicant's memorandum, the respondent does not have the burden of proving a ground of inadmissibility. Section 11 of the IRPA is clear on this issue.
19 According to the respondent, the applicant bears the burden of proving that there was a breach of procedural fairness and that the CAIPS notes were flawed. As Justice Tremblay-Lamer writes in Wang v Canada (Minister of Citizenship and Immigration), 2003 FC 833, [2003] FCJ No 1083 at para 24, "it still remains that in matters of judicial review, the burden is on the applicant to show that the tribunal has not complied with procedural fairness or has not acted fairly or reasonably". The respondent submits that the applicant has failed to discharge himself of this burden. The applicant needed to adduce evidence to demonstrate that he was not properly informed of the officer's concerns.
20 The respondent further submits that the Minister has the right to implement the procedure he deems the most adequate to deal with visa applications in a fair manner (Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817).
21 On the issue whether the applicant was also inadmissible pursuant to subsection 36(2)(b) of the IRPA, the respondent submits that the officer's conclusion on this question has no bearing on the first finding that the applicant is inadmissible under subsection 35(1)(a) of the IRPA. Accordingly the respondent takes the position that this alleged error does not invalidate the conclusion that the applicant is inadmissible and cannot obtain a permanent resident visa in Canada under subsection 35(1)(a).
VI. Analysis
1. Did the officer breach his duty of procedural fairness?
22 It is clear from the facts that the applicant had several opportunities to answer the officer's concerns about the manner in which he discharged his duties as a police officer. The applicant has not adduced any evidence to demonstrate that the officer breached his duty of procedural fairness. In reviewing the CAIPS notes it is clear to this Court that the officer was not attempting to trap the applicant; he was straightforward and open.
23 The CAIPS notes are part of the officer's decision (see Ziaei v Canada (Minister of Citizenship and Immigration), a2007 FC 1169a, [2007] FCJ No 1520 at para 21). The interview lasted 1 hour and 45 minutes further to which the officer wrote "I expressed my concerns to the applicant and gave him a chance to explain himself". The officer also informed the applicant that his admission to have used torture or third degree methods and his justification that these were used to obtain confessions were unacceptable. A close reading of the notes leads this Court to conclude that the applicant was well aware of the officer's concerns. The admissions therein contained were also sufficient to conclude that the applicant was inadmissible under subsection 35(1)(a) of the IRPA.
24 This Court acknowledges that "the Minister has the right to choose the procedure it deems the most adequate to deal with visa applications in a fair manner" as long as such procedure does not breach the rules of natural justice. The requirement that the applicant execute a certificate of understanding will not necessarily guarantee procedural fairness. But in this case it is clear that the applicant was provided with the opportunity of explaining himself thoroughly during the interview. The Court cannot find any breach of the principles of procedural equity.
· 2. Did the officer err in determining that the applicant was also inadmissible under subsection 36(2)(b) of the IRPA?
25 The officer erred in determining that the applicant was criminally inadmissible under subsection 36(2)(b) of the IRPA. The officer applied the wrong test when he writes in his decision that "paragraph 36(2)(b) of the IRPA provides in part that a foreign national is inadmissible on grounds of criminality for committing an act that, if committed in Canada, would constitute an indictable offence under an Act of parliament". In this instance the officer erred, since there was no evidence before him that the equivalent offence would constitute a crime in India or that the applicant had been indicted in India of such an offence (Zeon v Canada (Minister of Citizenship and Immigration), 2005 FC 1338, [2005] FCJ No 1633 at paras 8 and 10).
26 However, the Court must underline that this error does not invalidate the officer's finding in respect of subsection 35(1)(a) of the IRPA.
27 It is clear from the applicant's admissions that he could be found inadmissible on grounds of violating human or international rights for the usage of torture to extract statements from suspects during his career as a police officer in India. The applicant's admissions could lead to accusations of having committed a crime against humanity and consequently found guilty of an indictable offence under sections 6(1)(b) and 6(3) of the CAHWCA. The officer's decision based on subsection 35(1) (a) is reasonable under the circumstances since it is based on the applicant's own admissions.
VII. Conclusion
28 The Application for judicial review is therefore dismissed.
JUDGMENT
THIS COURT'S JUDGMENT is that:
This application for judicial review is dismissed.
There is no question of general interest to certify.
SCOTT J.
* * * * *
ANNEX
Immigration and Refugee Protection Act, SC 2001, c 27
· Application before entering Canada
(1) A foreign national must, before entering Canada, apply to an officer for a visa or for any other document required by the regulations. The visa or document may be issued if, following an examination, the officer is satisfied that the foreign national is not inadmissible and meets the requirements of this Act.
· If sponsor does not meet requirements
The officer may not issue a visa or other document to a foreign national whose sponsor does not meet the sponsorship requirements of this Act.
· Human or international rights violations
(1) A permanent resident or a foreign national is inadmissible on grounds of violating human or international rights for
· (a) committing an act outside Canada that constitutes an offence referred to in sections 4 to 7 of the aCrimes Against Humanity and War Crimes Acta;
· (b) being a prescribed senior official in the service of a government that, in the opinion of the Minister, engages or has engaged in terrorism, systematic or gross human rights violations, or genocide, a war crime or a crime against humanity within the meaning of subsections 6(3) to (5) of the aCrimes Against Humanity and War Crimes Acta; or
· (c) being a person, other than a permanent resident, whose entry into or stay in Canada is restricted pursuant to a decision, resolution or measure of an international organization of states or association of states, of which Canada is a member, that imposes sanctions on a country against which Canada has imposed or has agreed to impose sanctions in concert with that organization or association.
· Exception
Paragraphs (1)(b) and (c) do not apply in the case of a permanent resident or a foreign national who satisfies the Minister that their presence in Canada would not be detrimental to the national interest.
· Serious criminality
(1) A permanent resident or a foreign national is inadmissible on grounds of serious criminality for
· (a) having been convicted in Canada of an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years, or of an offence under an Act of Parliament for which a term of imprisonment of more than six months has been imposed;
· (b) having been convicted of an offence outside Canada 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; or
· (c) committing an act outside Canada that is an offence in the place 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.
· Criminality
A foreign national is inadmissible on grounds of criminality for
· (a) having been convicted in Canada of an offence under an Act of Parliament punishable by way of indictment, or of two offences under any Act of Parliament not arising out of a single occurrence;
· (b) having been convicted outside Canada of an offence that, if committed in Canada, would constitute an indictable offence under an Act of Parliament, or of two offences not arising out of a single occurrence that, if committed in Canada, would constitute offences under an Act of Parliament;
· (c) committing an act outside Canada that is an offence in the place where it was committed and that, if committed in Canada, would constitute an indictable offence under an Act of Parliament; or
· (d) committing, on entering Canada, an offence under an Act of Parliament prescribed by regulations.
· Application
The following provisions govern subsections (1) and (2):
· (a) an offence that may be prosecuted either summarily or by way of indictment is deemed to be an indictable offence, even if it has been prosecuted summarily;
· (b) inadmissibility under subsections (1) and (2) may not be based on a conviction in respect of which a pardon has been granted and has not ceased to have effect or been revoked under the aCriminal Records Acta, or in respect of which there has been a final determination of an acquittal;
· (c) the matters referred to in paragraphs (1)(b) and (c) and (2)(b) and (c) do not constitute inadmissibility in respect of a permanent resident or foreign national who, after the prescribed period, satisfies the Minister that they have been rehabilitated or who is a member of a prescribed class that is deemed to have been rehabilitated;
· (d) a determination of whether a permanent resident has committed an act described in paragraph (1)(c) must be based on a balance of probabilities; and
· (e) inadmissibility under subsections (1) and (2) may not be based on an offence designated as a contravention under the aContraventions Acta or an offence for which the permanent resident or foreign national is found guilty under the aYoung Offenders Acta, chapter Y-1 of the Revised Statutes of Canada, 1985 or the aYouth Criminal Justice Acta.
· Crimes Against Humanity and War Crimes Act, SC 2000, c 24
· Genocide, etc., committed outside Canada
(1) Every person who, either before or after the coming into force of this section, commits outside Canada
(a) genocide,
(b) a crime against humanity, or
(c) a war crime,
· is guilty of an indictable offence and may be prosecuted for that offence in accordance with section 8.
· ...
· Definitions
The definitions in this subsection apply in this section.
· "war crime" means an act or omission committed during an armed conflict that, at the time and in the place of its commission, constitutes a war crime according to customary international law or conventional international law applicable to armed conflicts, whether or not it constitutes a contravention of the law in force at the time and in the place of its commission.
· Criminal Code, RSC, 1985, c C-46
· Torture
· 269.1 (1) Every official, or every person acting at the instigation of or with the consent or acquiescence of an official, who inflicts torture on any other person is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.
· Definitions
For the purposes of this section,
· [...]
· "torture" means any act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person
· (a) for a purpose including
· (i) obtaining from the person or from a third person information or a statement,
· (ii) punishing the person for an act that the person or a third person has committed or is suspected of having committed, and
· (iii) intimidating or coercing the person or a third person, or
· (b) for any reason based on discrimination of any kind,
· but does not include any act or omission arising only from, inherent in or incidental to lawful sanctions.
* * *
· Loi sur l'immigration et la protection des réfugiés, LC 2001, ch 27
· Visa et documents
(1) L'étranger doit, préalablement à son entrée au Canada, demander à l'agent les visa et autres documents requis par règlement. L'agent peut les délivrer sur preuve, à la suite d'un contrôle, que l'étranger n'est pas interdit de territoire et se conforme à la présente loi.
· Cas de la demande parrainée
Ils ne peuvent être délivrés à l'étranger dont le répondant ne se conforme pas aux exigences applicables au parrainage.
· Atteinte aux droits humains ou internationaux
(1) Emportent interdiction de territoire pour atteinte aux droits humains ou internationaux les faits suivants :
· a) commettre, hors du Canada, une des infractions visées aux articles 4 à 7 de la aLoi sur les crimes contre l'humanité et les crimes de guerrea;
· b) occuper un poste de rang supérieur -- au sens du règlement -- au sein d'un gouvernement qui, de l'avis du ministre, se livre ou s'est livré au terrorisme, à des violations graves ou répétées des droits de la personne ou commet ou a commis un génocide, un crime contre l'humanité ou un crime de guerre au sens des paragraphes 6(3) à (5) de la aLoi sur les crimes contre l'humanité et les crimes de guerrea;
· c) être, sauf s'agissant du résident permanent, une personne dont l'entrée ou le séjour au Canada est limité au titre d'une décision, d'une résolution ou d'une mesure d'une organisation internationale d'États ou une association d'États dont le Canada est membre et qui impose des sanctions à l'égard d'un pays contre lequel le Canada a imposé -- ou s'est engagé à imposer -- des sanctions de concert avec cette organisation ou association.
· Exception
Les faits visés aux alinéas (1)b) et c) n'emportent pas interdiction de territoire pour le résident permanent ou l'étranger qui convainc le ministre que sa présence au Canada ne serait nullement préjudiciable à l'intérêt national.
· Grande criminalité
(1) Emportent interdiction de territoire pour grande criminalité les faits suivants :
· a) être déclaré coupable au Canada d'une infraction à une loi fédérale punissable d'un emprisonnement maximal d'au moins dix ans ou d'une infraction à une loi fédérale pour laquelle un emprisonnement de plus de six mois est infligé;
· b) être déclaré coupable, à l'extérieur du Canada, d'une infraction qui, commise au Canada, constituerait une infraction à une loi fédérale punissable d'un emprisonnement maximal d'au moins dix ans;
· 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 dix ans.
· Criminalité
Emportent, sauf pour le résident permanent, interdiction de territoire pour criminalité les faits suivants :
· a) être déclaré coupable au Canada d'une infraction à une loi fédérale punissable par mise en accusation ou de deux infractions à toute loi fédérale qui ne découlent pas des mêmes faits;
· b) être déclaré coupable, à l'extérieur du Canada, d'une infraction qui, commise au Canada, constituerait une infraction à une loi fédérale punissable par mise en accusation ou de deux infractions qui ne découlent pas des mêmes faits et qui, commises au Canada, constitueraient des infractions à des lois fédérales;
· c) commettre, à l'extérieur du Canada, une infraction qui, commise au Canada, constituerait une infraction à une loi fédérale punissable par mise en accusation;
· d) commettre, à son entrée au Canada, une infraction qui constitue une infraction à une loi fédérale précisée par règlement.
· Application
Les dispositions suivantes régissent l'application des paragraphes (1) et (2) :
· a) l'infraction punissable par mise en accusation ou par procédure sommaire est assimilée à l'infraction punissable par mise en accusation, indépendamment du mode de poursuite effectivement retenu;
· b) la déclaration de culpabilité n'emporte pas interdiction de territoire en cas de verdict d'acquittement rendu en dernier ressort ou de réhabilitation -- sauf cas de révocation ou de nullité -- au titre de la aLoi sur le casier judiciairea;
· c) les faits visés aux alinéas (1)b) ou c) et (2)b) ou c) n'emportent pas interdiction de territoire pour le résident permanent ou l'étranger qui, à l'expiration du délai réglementaire, convainc le ministre de sa réadaptation ou qui appartient à une catégorie réglementaire de personnes présumées réadaptées;
· d) la preuve du fait visé à l'alinéa (1)c) est, s'agissant du résident permanent, fondée sur la prépondérance des probabilités;
· e) l'interdiction de territoire ne peut être fondée sur une infraction qualifiée de contravention en vertu de la aLoi sur les contraventionsa ni sur une infraction dont le résident permanent ou l'étranger est déclaré coupable sous le régime de la aLoi sur les jeunes contrevenantsa, chapitre Y-1 des Lois révisées du Canada (1985), ou de la aLoi sur le système de justice pénale pour les adolescentsa.
· Loi sur les crimes contre l'humanité et les crimes de guerre, LC 2000, ch 24
· Génocide, crime contre l'humanité, etc., commis à l'étranger
(1) Quiconque commet à l'étranger une des infractions ci-après, avant ou après l'entrée en vigueur du présent article, est coupable d'un acte criminel et peut être poursuivi pour cette infraction aux termes de l'article 8 :
a) génocide;
b) crime contre l'humanité;
c) crime de guerre.
[...]
Définitions
Les définitions qui suivent s'appliquent au présent article.
· "crime de guerre" Fait -- acte ou omission -- commis au cours d'un conflit armé et constituant, au moment et au lieu de la perpétration, un crime de guerre selon le droit international coutumier ou le droit international conventionnel applicables à ces conflits, qu'il constitue ou non une transgression du droit en vigueur à ce moment et dans ce lieu.
· Code criminel, LRC (1985), ch C-46
· Torture
· 269.1 (1) Est coupable d'un acte criminel et passible d'un emprisonnement maximal de quatorze ans le fonctionnaire qui -- ou la personne qui, avec le consentement exprès ou tacite d'un fonctionnaire ou à sa demande -- torture une autre personne.
· Définitions
Les définitions qui suivent s'appliquent au présent article.
· [...]
· "torture" Acte, commis par action ou omission, par lequel une douleur ou des souffrances aiguës, physiques ou mentales, sont intentionnellement infligées à une personne :
· a) soit afin notamment :
· (i) d'obtenir d'elle ou d'une tierce personne des renseignements ou une déclaration,
· (ii) de la punir d'un acte qu'elle ou une tierce personne a commis ou est soupçonnée d'avoir commis,
· (iii) de l'intimider ou de faire pression sur elle ou d'intimider une tierce personne ou de faire pression sur celle-ci;
· b) soit pour tout autre motif fondé sur quelque forme de discrimination que ce soit.
· La torture ne s'entend toutefois pas d'actes qui résultent uniquement de sanctions légitimes, qui sont inhérents à celles-ci ou occasionnés par elles.
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