ALLEGED FRAUDULENT DOCUMENTS LEAD TO RESIDENCY REFUSAL

The visa officer had concerns about the documents presented. He wa not required to conduct a substituted evaluation to determine the applicant's ability to be established in Canada.

Case Name:
Rahman v. Canada (Minister of Citizenship and Immigration)

Between
Mohammad Mahabubur Rahman, Applicant, and
The Minister of Citizenship and Immigration, Respondent

[2013] F.C.J. No. 884

2013 FC 835

Docket IMM-8703-12

 Federal Court
Toronto, Ontario

Gagné J.

Heard: May 30, 2013.
Judgment: August 1, 2013.

(29 paras.)

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REASONS FOR JUDGMENT AND JUDGMENT

GAGNÉ J.:--

I. Introduction

1     Mr. Mohammad Mahabubur Rahman's application for permanent residence as a member of the economic class [application] was refused by an Immigration Officer who did not find that he had the ability to become economically established in Canada in application of subsection 12(2) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA], as he obtained 62 points out of the 67 required.

2     The Applicant seeks judicial review of that decision, arguing that: (i) the selection criteria for the federal skilled worker [FSW] class under subsections 75(1) and 76(1) of the Immigration and Refugee Protection Regulations, SOR/2002-227 [Regulations] entitled him to a greater number of points with respect to education and work experience; (ii) the Officer did not give him a fair opportunity to contradict the outcome of a fraud investigation that was not properly disclosed to him; and (iii) the Officer should have conducted a substituted evaluation under subsection 76(3) of the Regulations since the number of points awarded to him was not a sufficient indicator of his ability to become economically established in Canada.

II. Background

3     The Applicant is a 36-year-old citizen of Bangladesh. He gave evidence of the following educational credentials: (i) a Secondary School Certificate [SSC] from the Board of Intermediate and Secondary Education of Dhaka, dated July 31, 1993; (ii) a Higher Secondary Certificate [HSC] from the Board of Intermediate and Secondary Education of Dhaka, dated July 1995; (iii) a Bachelor of Science from the National University of Bangladesh; (iv) a Master of Science in Mathematics from the National University of Bangladesh; (v) a Dental Office and Chairside Assistant diploma from CDI College, dated November 3, 2006; and (vi) a Business Administration in International Trading diploma from Evergreen College, dated November 2008.

4     According to the Applicant's transcripts, the duration of his Bachelor of Science and Master of Science degrees was 3 years and 1 year, respectively. His application stated that his Bachelor of Science was a 4-year degree and that the duration of the pre-university SSC and HSC programs was 12 years, for a total of 16 years.

5     The Applicant worked as a mathematics instructor at Polygon English Academy [Polygon], part-time from January 22, 2000 to May 2002, and full-time from May 2, 2002 to May 2004. As proof of employment, he presented documents allegedly issued by the Bangladesh Income Tax Office and by Polygon. Offers of employment from Polygon, dated January 25, 2000 and April 25, 2002, state that the Applicant was required to work 26 hours per week as a part-time instructor and 40 hours per week as a full-time instructor.

6     In August 2004, the Applicant came to Canada on successive study permits and made his application on November 12, 2008.

7     On May 9, 2010, the High Commission of Canada in Dhaka found that the Applicant's tax documents were fraudulent because: (i) they were issued and signed on January 27, 2010, by an employee who left his position at the tax office on February 24, 2009; (ii) he was not a taxpayer in Bangladesh or was not issued a taxpayer number until January 28, 2010; and (iii) the wet seal on the income tax documents did not match the wet seal used by Bangladesh tax authorities.

8     On May 9, 2010, an agent of the High Commission went to Polygon to confirm the Applicant's work experience. He learned that, before 2005, Polygon was a coaching centre, not an educational institution.

9     As a result of that investigation, the Officer notified the Applicant that his tax documents and employer's documents were fraudulent. On May 23, 2012, the Applicant, through his counsel, sought clarification as the "letter [did] not make it clear to [him] exactly what information has been verified, when, by whom and by what means, and what exactly (what part of the information or documents) is deemed to be 'fraudulent' ".

10     The Applicant also provided a letter from Polygon confirming his work experience as a part-time instructor from January 2000 to May 2002 and as a full-time instructor from May 2002 to May 2004.

11     The agent of the High Commission made a second site visit to Polygon, who confirmed that prior to 2005, Polygon was a coaching centre and not a school.

III. Decision under Review

12     The Officer found that the Applicant could not be selected under subsection 12(2) of the IRPA because the selection criteria in subsection 76(1) of the Regulations did not entitle him to the minimum number of points required for FSWs. The Officer assessed the Applicant under NOC 4131: College and Other Vocational Instructors National Occupation Classification [NOC 4131 class], awarding him 62 points under the selection criteria; 10 for age; 22 for education; 8 for official language proficiency; 17 for work experience; and 5 for adaptability.

13     The Officer awarded the Applicant 22 points for the education factor pursuant to paragraph 78(2)(e) of the Regulations. According to certificates provided by the Applicant, the program of study for his Master of Science degree in Bangladesh only consisted of a total of 16 years of study: 12 years of pre-university study; 3 years of study for a bachelor's degree; and 1 year of study for a master's degree. Consequently, he was ineligible for 25 points under paragraph 78(2)(f) of the Regulations, which requires at least 17 years of completed full-time or full-time equivalent studies.

14     The Applicant's two years of work experience at Polygon from May 2002 to May 2004 merited 17 points for work experience under paragraph 80(1)(b) of the Regulations. The Officer did not award the Applicant points for his previous part-time work as he did not provide evidence on the number of hours of work he completed or indicate that he had performed work at the college or vocational level. Nor did the Officer award him points for work since 2004 as he did not provide evidence of other work experience at NOC skill type 0 or skill level A or B.

15     As the Applicant does not contest the way the other selection criteria were assessed by the Officer, there is no need to summarize his findings for the purpose of the present reasons.

IV. Issues

·       1) 

Did the Officer assess the education factor reasonably? 

·       2) 

Did the Officer assess the work experience factor reasonably? 

·       3) 

Did the Officer breach the duty of procedural fairness? 

·       4) 

Does the decision raise a reasonable apprehension of bias? 

V. Analysis

Standard of review

16     A visa officer's assessment of a permanent resident application under the FSW class involves questions of mixed law and fact that are reviewable on the reasonableness standard (Mahouri v Canada (Minister of Citizenship and Immigration), 2013 FC 244, [2013] F.C.J. No. 278 at para 11). The same standard applies to a decision to exercise the discretion to conduct a substituted evaluation under subsection 76(3) (Eslamieh v Canada (Minister of Citizenship and Immigration), 2008 FC 722, [2008] F.C.J. No. 909 [Eslamieh]). However, whether a decision raises a reasonable apprehension of bias is assessed on the correctness standard (Azziz v Canada (Minister of Citizenship and Immigration), 2010 FC 663, [2010] F.C.J. No. 767).

Assessment of the education factor

17     The Applicant argues that he was entitled to additional points for education. In his view, paragraph 78(2)(f) of the Regulations entitled him to 25 points because he had a university educational credential at the master's level and a total of 19 years of completed full-time or full-time equivalent studies. In the alternative, he asserts that subsection 78(4) of the Regulations required the Officer to award the same number of points he would be awarded if he had satisfied both requirements for paragraph 78(2)(f). CitingMcLachlan v Canada, 2009 FC 975, [2009] F.C.J. No. 1183 [McLachlan], he argues that subsection 78(4) required the Officer to award 25 points for his master's degree as if he satisfied the length of study requirement in paragraph 78(2)(f).

18     For the reasons that follow, I am of the opinion that the Officer's finding that the Applicant did not establish that he met the duration of study requirement under paragraph 78(2)(f) is reasonable (Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190 at para 47).

19     Subsection 78(4) did not require the Officer to award the Applicant the points he would have been entitled to as if he had he satisfied the duration of study requirement. Paragraph 78(2)(f) awards 25 points to applicants who demonstrate that they have: (i) a university credential at the master's or doctoral level; and (ii) a total of at least 17 years of completed full-time or full-time equivalent studies.

20     While the Applicant has a Master's degree in mathematics, he did not satisfy the duration of study requirement. Based on the record, the Officer could reasonably determine that he had completed only 16 years of full-time or full-time equivalent studies. First, he consistently stated in his application materials that he completed 12 years of pre-university studies. Second, while he stated that his bachelor's and master's degrees were completed in 4 years and 1 year, respectively, the Officer could reasonably rely on his National University of Bangladesh transcripts, which stated that he completed his bachelor's degree in 3 years and his master's in 1 year. Third, his studies at CDI College and Evergreen College cannot be included in assessing the duration of study requirement as the Officer was not permitted to award points for years of full-time or full-time equivalent studies that did not contribute to his Master's degree (Hasan v Canada (Minister of Citizenship and Immigration), 2011 FCA 339, [2011] F.C.J. No. 1729 at para 56 [Hasan]). Since the Applicant could only demonstrate that he had 16 years of study, he did not meet the duration of study requirement under paragraph 78(2)(f) of the Regulations.

21     Subsection 78(4) does not assist the Applicant. It provides, when applied to the Applicant's situation, that since he has a master's educational credential under paragraph 78(2)(f) but not a total of at least 17 years of full-time or full-time equivalent studies, then the Officer shall award the applicant the same number of points as the same number of years of completed full-time or full-time equivalent studies set out in the paragraph or subparagraph.

22     The Applicant cites McLachlan, above, for the proposition that subsection 78(4) required the Officer to award him the same number of points as if he had satisfied paragraph 78(2)(f).

23     In Hasan, above, the Federal Court of Appeal held that a decision-maker could reasonably award 22 points under subparagraph 78(2)(e) (ii) of the Regulations where the applicants had two master's degrees but "were only credited with 16 years of full-time studies with respect to their master's degree[s]" (at paras 2, 16, 21, and 55). Hasan overruled McLachlan, concluding that subsection 78(4) did not entitle applicants with educational credentials who fail to meet the duration of study requirement to the full point allocation for their educational credential. The Federal Court of Appeal clearly instructed this Court not to follow McLachlan as it was "wrongly decided" (at para 50) and "fatally flawed" (at para 52).

Assessment of the work experience factor

24     In terms of assessing the reasonableness of the decision, the issue of the education points awarded to the Applicant is determinative. In the absence of an award of further points under paragraph 78(1)(f), the Applicant could not attain the minimum of 67 points, even if he were entitled to full points under the work experience factor. Even assuming that the assessment of the Applicant's work experience is unreasonable, it could not be determinative of his application. An unreasonable finding must be determinative in order to be sufficient to return a decision for redetermination (Lopez v Canada (Minister of Citizenship and Immigration), 2012 FC 1444, [2012] F.C.J. No. 1567 at para 9).

25     The same can be said with respect to the alleged apprehension of bias on the Officer's part for not having given the Applicant the opportunity to contradict the outcome of the investigation report. As it only concerns the Applicant's work experience, it has no impact on the Officer's finding that the Applicant could only be awarded 22 points for education.

26     Consequently, the Court will not deal with the second and forth issues raised above.

The necessity to conduct a substituted evaluation

27     The Applicant claims the Officer breached the duty of fairness in not conducting a substituted evaluation under subsection 76(3) of the Regulations as the number of points awarded to him was not a sufficient indicator of his ability to become economically established in Canada. He submits that Jogiat v Canada (Minister of Citizenship and Immigration), 2009 FC 815, [2009] F.C.J. No. 1518 required the Officer to explain why a substituted evaluation was not warranted.

28     The Officer was not required to conduct a substituted evaluation under subsection 76(3). Justice Mosley, in Eslamieh, above at para 4, held that a decision-maker need not consider a substituted evaluation "unless specifically requested to do so" (see also Chowdhury v Canada (Minister of Citizenship and Immigration), 2011 FC 1315, [2011] F.C.J. No. 1605 at para 35). Since the Applicant did not request the Officer to exercise his discretion pursuant to subsection 76(3), the decision is not unreasonable on that ground.

VI. Conclusion

29     For all of the foregoing reasons, the Applicant's application for judicial review should be dismissed. The parties did not propose any question of general importance for certification and none arises from this case.

JUDGMENT

THIS COURT'S JUDGMENT is that:

·       1. 

The application for judicial review is dismissed; 

·       2. 

No question of general importance is certified; and 

·       3. 

No costs are granted. 

GAGNÉ J.

FOREIGNERS FLOCK TO CANADA TO GIVE BIRTH, OBTAIN CITIZENSHIP FOR CHILDREN

‘Birth tourists’ believed to be using Canada’s citizenship laws as back door into the West | National Post

ALBERTA COURT OF APPEAL INCREASES SENTENCE, CALLS ATTACK "ABHORRENT"

The Alberta Court of Appeal has reversed a conditional discharge granted to an attacker who participated in the beating of a relative to attempt to force her to marry someone selected by her family. The Court imposed a 90 day jail sentence instead and entered a conviction, calling the attack "abhorrent". The Court rejected  the arguments of the respondent, who relied on the recent Supreme Court of Canada decision in Pham to avoid the danger of deportation. The Court's strong language sends a strong message to those who commit family violence under the guise of "cultural norms" or "customs" and warns that they will not get a sympathetic treatment from the courts.

R. v. Bandesha

Between
Her Majesty the Queen, Appellant, and
Balsher Singh Bandesha, Respondent

[2013] A.J. No. 800

2013 ABCA 255

Docket: 1301-0052-A

Registry: Calgary

 Alberta Court of Appeal
Calgary, Alberta

J.E.L. Côté, P.A. Rowbotham and J.D.B. McDonald JJ.A.

Heard: July 2, 2013.
Oral judgment: July 2, 2013.
Filed: August 6, 2013.

(26 paras.)

Appeal From:

Appeal from the Sentence by The Honourable Madam Justice M.C. Erb Dated the 8th day of February, 2013 (Docket: 100268804Q1).

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Memorandum of Judgment
 Delivered from the Bench

The judgment of the Court was delivered by

1     J.E.L. CôTÉ J.A. (orally):-- The Crown appeals from a conditional discharge given for assault causing bodily harm. The respondent was one member of a four-person group who attacked, pushed, kicked and beat a family member, also pulling out a large clump of her hair by the roots. She was kicked in the stomach when lying on the floor. She was an adult. The group did this to coerce her to marry someone whom she did not want to marry, and not to marry someone whom she did wish to marry. The attack occurred in the victim's own home, where the ringleader also lived, and where the respondent was visiting. She left her home and stayed in a women's shelter for about three weeks.

2     The respondent is 35 years old (32 at the time) and owns and operates his own long-distance truck. He has no record. The victim is his first cousin. The instigator of this crime (the victim's uncle and the father of the respondent), saw himself as the head of the family, with dictatorial powers over the victim. He also controlled her finances and employment. The three cousins of the victim had no hesitation in joining their father in this vicious group attack.

3     One factor which the sentencing reasons mentioned in imposing only a discharge was to avoid any danger of deportation, and to avoid any difficulty in crossing the American border. The respondent had been a permanent resident of Canada for 10 years, but was not a citizen. Mere conviction of this crime could lead to deportation, so evidently the idea was to avoid any conviction or record, so that the Canadian and American governments would not know about this crime. Counsel for the respondent speculates that this immigration factor may not have been critical, as one co-accused who got a similar discharge was a Canadian citizen. But the sentencing judge did not draw such a distinction.

4     The respondent was sentenced a month before the Supreme Court of Canada's governing reasons in R. v. Pham, 2013 SCC 15, and the reasons for sentencing here do not adequately reflect the rules which that Pham case later laid down.

5     The Pham reasons emphasize the critical nature of proportionality (which I will discuss shortly) and the basic purposes of sentencing (paras 7, 10). That simply elaborates on the "fundamental principle" of sentencing, in s 718.1 of the Criminal Code.

6     Some personal circumstances of the offender, such as possible deportation, can be taken into account, though they are neither mitigation nor aggravation: R. v. Pham. But such circumstances do not overrule proportionality, and every sentence must fit the crime and the offender. Immigration consequences cannot make the sentence disproportionate to the gravity of the offence or the degree of the offender's responsibility (Pham, para 14). The will of Parliament as to deportation must not be circumvented by inappropriate and artificial sentences, still less by a separate sentencing régime (Pham, paras 15, 16).

7     One cannot even leave the total sentence intact and rearrange its interior divisions below what would individually be fit sentences, to prevent deportation (Pham, para 17). But a small adjustment of sentence, such as changing two years to two years less a day, is permissible to avoid deportation, though it is not compulsory (paras 15, 16, 18, 19, 21, 23).

8     A conditional discharge means that no conviction is entered and no criminal record is created. It differs in kind from all other sentences. The difference between discharge and a conviction is significant, and the difference between that and a conviction with a short jail sentence is even greater.

9     Therefore, if some jail would otherwise be a fit proportionate sentence here, we cannot see how immigration consequences could lead to any kind of discharge. That is not consistent with the Pham decision. The cases cited, including the Pham decision, involve trimming a few days (or weeks) off a fit sentence, for immigration reasons. We have not seen any precedent for adopting a completely different type of sentence for immigration purposes.

10     Therefore, immigration or deportation consequences cannot have much, if any, proper weight here. So the real question is whether the conditional discharge was a fit sentence apart from that.

11     Proportionality is vital to sentencing: Pham at para 7; R. v. Arcand, 2010 ABCA 363, 499 AR 1 (paras 45-65). Assault causing bodily harm is a serious crime. The maximum sentence is 10 years as this was prosecuted by indictment.

12     There was nothing technical or minor about this assault, nor about the respondent's role. He took full part in the physical attacks, and was a big strong man in the prime of life. The assault was his father's idea, but the respondent took part willingly. The father imposed no duress or coercion on him. The duress and coercion were on the victim. The sentencing reasons' statement that the respondent was his father's "pawn" is ambiguous. He was not the instigator, but he knew what he was doing, and why he was doing it, and readily and willingly did it. Each member of the group knew he or she was advancing the group objectives and encouraging the other members, and so is liable for the consequences: R. v. EBC, 2005 ABCA 61, 363 AR 111 (para 9). Cf R. v. Hennessey and Cheeseman, 2010 ABCA 274, 490 AR 35, lv den (2011) 426 NR 400 (SCC).

13     In some cultures, women are not free to choose or reject a prospective spouse. That sort of coercion is abhorrent to Canadian society, and physical beatings to enforce such coercion are doubly abhorrent. When a competing set of cultural values lead to such illegal physical coercion in Canada, denunciation is necessary. The Code codifies sentencing, and begins with that: to maintain a just peaceful and safe society by denouncing unlawful conduct (s 718(a)). It is impossible to denounce by preventing any criminal conviction or record from existing or being recorded.

14     The decision in R. v. MacFarlane (1976) 55 AR 222 (CA) may also bar this sentence, but we need not base our decision on that.

15     The sentencing reasons made errors in principle. They did not properly apply the principles in Pham, and failed to consider denunciation. Proportionality got little or no weight, and the sentence is unfit. Therefore, we must sentence afresh.

16     Given what we have said above, it is impossible to sustain a conditional discharge here.

17     Random brief violence, spurred by a hot temper or intoxication, or some insult or frustration, is bad enough. But violence of some length committed to extort something is worse. And violence of some length deliberately employed to obtain sustained dominance and power over someone else is still worse. It becomes far worse yet where the object is something as personal and lasting as a coerced marriage. The maximum sentence for extortion is life imprisonment.

18     Assaults range a great deal in seriousness, because of a number of varying factors. So proportionality dictates that their sentences vary.

19     One important aspect of that seriousness is how many people take part. Most assaults are by a single person. However, where they are by a group, the assault is more serious. For example, a series of concerted individual assaults: R. v. Liron and MacIntyre (1992) 135 AR 166 (CA). The present case was worse, as it was a concerted simultaneous assault by four people. So that calls for a higher sentence. (On group cooperation in a crime cf R. v. Hennessey, supra.)

20     The rationale for all this is explained well in Ashworth, Sentencing and Criminal Justice 163-64 (5th ed 2010). A victim ordinarily has no chance of escaping or vanquishing four attackers. The potential result is very serious, and the whole thing must be terrifying for the victim.

21     This was not only assault causing bodily harm; it was a serious form of that crime. That must have a large impact upon proportionality.

22     The respondent submits that though his father was sent to jail, his brother and sister got the same conditional discharge that he did. He says that there should not be a disparity among the sentences of co-accuseds, and so the respondent's sentence should not be increased.

23     But the Crown appealed the brother's and sister's sentences. But it did not serve them in time. (One was in India.) A Crown application to extend time to serve was dismissed. That is the reason those appeals cannot proceed as well.

24     The object of this sentence appeal is not to review or punish the Crown's procedure on a different appeal. There is no reason to confirm an unfit sentence which is too low in order to punish the Crown.

25     The respondent's counsel relies on a few reported cases and suggests that the number (length of sentence) imposed there be carried over to the present case. Only one of the cases cited is by the Court of Appeal: R. v. Anderson (1976) 1 AR 348. But the offender there was only 16, and the act was impulsive. This is an old brief sentencing memorandum. The Court of Queen's Bench decisions thus cited are even less helpful here, often involving different crimes, sometimes a different sentence, and sometimes very unusual facts.

26     For all of those reasons, we have concluded that the sentence given to the respondent was unfit in principle, and not within an acceptable range. We give leave to appeal, allow the appeal, and quash the conditional discharge. The uncle (respondent's father) was given 90 days of actual imprisonment, and so we feel unable here to go higher. But the respondent had six days' pre-trial custody. We deduct that and impose a sentence of 84 days imprisonment, to run from today. It will be served continuously. We have taken into account, when computing that, the fact that the respondent and others paid some money to a charity as part of the conditional discharge. There is therefore no reason for anyone to ask to have it repaid.

(Counsel then asked to have the respondent serve the sentence intermittently, but the Court denied the request and ordered that the sentence be served continuously.)

J.E.L. CôTÉ J.A.

IMMIGRANT WOMEN BIRTH RATE STUDY RELEASED

High birthrate among immigrant women has implications for Canada

IMPAIRED DRIVING OFFENCE IN NORTH CAROLINA PREVENTS INVESTOR IMMIGRATION

In the case below, an applicant was convicted of driving under the influence in North Carolina, and was prevented from succeeding in his Investor immigration application. The litigation centered around the equivalence of the offence. Te Federal Court confirmed that the offences need not be identical to be equivalent. The applicant failed in all his arguments.

Patel v. Canada (Minister of Citizenship and Immigration)

Between
Mamta Narendra Patel, Applicant, and
The Minister of Citizenship and Immigration, Respondent

[2013] F.C.J. No. 872

2013 FC 804

Docket IMM-2989-12

 Federal Court
Toronto, Ontario

Kane J.

Heard: January 31, 2013.
Judgment: July 19, 2013.

(49 paras.)

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REASONS FOR JUDGMENT AND JUDGMENT

1     KANE J.:-- This is an application under section 72(1) of the Immigration and Refugee Protection Act [the Act] for judicial review of a decision made by an Immigration Officer [the Officer], at the Consulate General of Canada in Buffalo, New York, on January 30, 2012 which refused to issue a temporary or permanent resident visa to the applicant because the applicant's husband was found to be inadmissible to Canada pursuant to paragraph 36(2)(b) of the Act.

2     The applicant, Mamta Narendra Patel, sought permanent residence in Canada under the economic class as a Quebec-approved investor. The applicant's husband, Kartikbhai Patel, had been convicted of impaired driving in North Carolina in 2009. As a result, the Officer considered whether the offence was equivalent to the offence of driving while impaired by alcohol or drugs under the Criminal Code of Canada and determined that it was equivalent. Mr Patel was not eligible for rehabilitation because five years had not yet elapsed since the completion of his sentence, which included probation, community service and a fine. The Officer refused to exempt the applicant on humanitarian and compassionate [H&C] grounds as the applicant had requested and refused to issue the visa.

3     The applicant made lengthy submissions that the decision was unreasonable and that the Officer was biased. The applicant's submissions can be best summarised as follows: the Officer erred in finding that Mr Patel was inadmissible on grounds of criminality since the offence for which Mr Patel was convicted was not equivalent to the Canadian offence of impaired driving; there was a breach of procedural fairness because the Officer delayed in making the decision for 18 months, exhibited unprofessional conduct and denied counsel for Mr Patel to attend an interview; and, the Officer was biased as evidenced by the delay and her conduct. In addition, the applicant submits that the Certified Tribunal Record [CTR] was incomplete and as a result, the Officer must not have considered all the relevant evidence.

4     The applicant made several arguments with respect to the inadmissibility finding: that Mr Patel was not driving under the influence of an impairing substance, that he would not have been convicted of any offence had the incident occurred in Canada, and that the North Carolina [NC] offence he was charged with is not equivalent to an offence in Canada.

Standard of Review

5     The standard of review for findings of equivalency, which are factual determinations and which attract deference, is that of reasonableness: Abid v Canada (Minister of Citizenship and Immigration), 2011 FC 164, [2011] F.C.J. No. 208 at para 11; Lu v Canada (Minister of Citizenship and Immigration), 2011 FC 1476, [2011] F.C.J. No. 1797 [Lu] at para 12.

6     As noted by Justice Pinard in Lu:

·        12 The standard of review applicable to an officer's determination of equivalency is reasonableness (Abid v. Minister of Citizenship and Immigration, 2011 FC 164 at paragraph 11 [Abid]; Sayer v. Minister of Citizenship and Immigration, 2011 FC 144 at paragraph 4 [Sayer]). The determination of equivalency is a question of mixed fact and law that attracts deference (Abid at paragraph 11 and Sayer at paragraph 5). Equivalency is a mixed question because, first, the applicant must prove the foreign law, which becomes a question of fact (Lakhani v. Minister of Citizenship and Immigration, 2007 FC 674 at paragraph 22; Sayer at paragraph 4). Once the foreign law is established, an officer must assess the relevant facts of the case according to the terms of the foreign law in comparison with the applicable Canadian federal law (Sayer at paragraph 5). 

7     The reasonableness standard requires the Court to consider the justification, transparency and intelligibility of the decision-making process, and whether the decision falls within a range of possible acceptable outcomes which are defensible with respect to the facts and the law: see Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190 at para 47, and Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009] 1 SCR 339 [Khosa] at para 59.

8     Issues of procedural fairness are reviewable on a correctness standard: Khosa, at para 43.

Did the Officer reasonably find that the offences were equivalent?

9     The applicant and respondent agree that the test to determine whether the NC offence of driving under the influence is equivalent to the Criminal Code offence of impaired driving is that established by the Federal Court of Appeal in Hill v Minister of Employment and Immigration [1987] F.C.J. No. 47, 73 NR 315 at para. 16 (FCA) [Hill] which can be determined in one of three ways:

·        ... first, by a comparison of the precise wording in each statute both through documents and, if available, through the evidence of an expert or experts in the foreign law and determining therefrom the essential ingredients of the respective offences. Two, by examining the evidence adduced before the adjudicator, both oral and documentary, to ascertain whether or not that evidence was sufficient to establish that the essential ingredients of the offence in Canada had been proven in the foreign proceedings, whether precisely described in the initiating documents or in the statutory provisions in the same words or not. Third, by a combination of one and two. 

10     The CAIPS notes, which constitute the reasons of the Officer, demonstrate that the Officer considered the wording of the two offences and the test in Hill:

·        [...] in order to convict a person of a DWI in the State of NC, the prosecutor must prove to the court beyond a reasonable doubt that the suspect was appreciably impaired. Despite the fact that PI unable to substantiate alcohol level, he was indeed found guilty of driving while impaired. He was found guilty under 20-138.1, Impaired Driving: 

·        "(a) Offense. - A person commits the offense of impaired driving if he drives any vehicle upon any highway, any street, or any public vehicular area within this State: 

·        (1) 

While under the influence of an impairing substance; or 

·        (2) 

After having consumed sufficient alcohol that he has, at any relevant time after the driving, an alcohol concentration of 0.08 or more. The results of a chemical analysis shall be deemed sufficient evidence to prove a person's alcohol concentration; or (...) 

·        The Canadian equivalent of this conviction is s. 253 of the Cdn Criminal Code: 

·        (1) 

Every one commits an offence who operates a motor vehicle ... whether it is in motion or not, 

·        (a) 

while the person's ability to operate the vehicle, vessel, aircraft or railway equipment is impaired by alcohol or a drug; or 

·        (b) 

having consumed alcohol in such a quantity that the concentration in the person's blood exceeds eighty milligrams of alcohol in one hundred millilitres of blood. 

·        Punishment: 

·        255. 

(1) Every one who commits an offence under section 253 or 254 is guilty of an indictable offence or an offence punishable on summary conviction and is liable, 

·        b) 

where the offence is prosecuted by indictment, to imprisonment for a term not exceeding five years ... 

·        This renders PI in admissible as per A36(2)(b) of IRPA. I spoke to IPM about this case, who agreed that indeed PI is criminally inadmissible. 

11     The applicant submits that the North Carolina [NC] offence and the Criminal Code offence are not equivalent because the NC offence refers to an "impairing substance" which could be broader than alcohol or a drug, whereas the Criminal Code offence refers to impairment by alcohol or drug. In addition, the applicant argues that the NC offence refers to driving, whereas the Criminal Code offence refers to operation of or care and control of a motor vehicle.

12     I do not agree with the applicant. The NC offence, when read in the context of the related provisions governing impaired driving, which is how any statute must be read, confirms that impairment by alcohol or drugs is contemplated. The applicant's argument that a person could be impaired by caffeine, lactose intolerance, or due to lack of sleep is not supported by any evidence or by common knowledge, and does not lead to the conclusion that the offences are not equivalent. A lack of sleep is not an impairing substance (it is not a substance at all); caffeine is a drug; and lactose intolerance is not known to impair the ability to drive.

13     Similarly, while the word "driving" and "operation" or "care and control" are not identical, they convey the same conduct. Mr Patel was stopped while driving his vehicle. Had this occurred in Canada, his driving would constitute operation of the vehicle.

14     The offences are very similar, although not identically worded. The jurisprudence has clearly established that equivalent offences do not need to be identical. It would be unrealistic to expect even like-minded legislators in different states and countries to use identical language in their statutes.

15     InLi v Canada (Minister of Citizenship and Immigration), 1996 FCJ 1060, the Court of Appeal confirmed at para 19 that offences need not be identical in assessing equivalency, and whether a conviction would result in one country and not the other is irrelevant:

·        I believe that it would be most consistent with the purposes of the statute, and not inconsistent with the jurisprudence of this Court, to conclude that what equivalence of offences requires is essentially the similarity of definition of offences. A definition is similar if it involves similar criteria for establishing that an offence has occurred, whether those criteria are manifested in elements (in the narrow sense) or defences in the two sets of laws. In my view, the definition of an offence involves the elements and defences particular to that offence, or perhaps to that class of offences. For the purpose of subparagraph 19(2) (a.1) (i) of the Immigration Act it is not necessary to compare all the general principles of criminal responsibility in the two systems: what is being examined is the comparability of offences, not the comparability of possible convictions in the two countries.

16     Although Mr Patel's conviction in NC was classified as a misdemeanour, and the lowest possible punishment was imposed because it was a first conviction, the equivalent offence in Canada is a hybrid offence which could be punished, on indictment, by a maximum of five years imprisonment. As a result, paragraph 36(2)(b) of the Act, which provides that a conviction "outside Canada of an offence that, if committed in Canada, would constitute an indictable offence under an Act of Parliament...", results in inadmissibility.

17     The Federal Court of Appeal confirmed in Abrasssart v Canada (Minister of Citizenship and Immigration), 2001 F.C.J. No.12 at para 15 that a hybrid offence, which could be prosecuted by indictment, would constitute an indictable offence.

18     The applicant's submissions that Mr Patel was not in fact impaired and that he attempted to blow into the breathalyser machine but the machine would not record a reading and that he was convicted without any proof is simply without merit. The record includes the affidavit of the arresting officer who described indicia of impairment including erratic driving, red glassy eyes and a strong odour of alcohol. Although the arresting officer's documents indicate that Mr Patel did attempt to blow and that no readings were registered (only air blanks), Mr Patel was not charged with refusal to blow. Mr Patel was charged with driving under the influence and was convicted of that offence. The documentary evidence considered by the Officer which was in the CTR and in the applicant's record includes reference to the legal requirements for a conviction in North Carolina which requires proof beyond a reasonable doubt of impairment. The applicant's submission that Mr Patel was convicted without any proof is not supported by the explanation of the law or by any of the documents which confirm the charge imposed, the conviction, and the sentence.

19     The applicant's submission that Mr Patel pursued an appeal of his alleged improper conviction but abandoned it due to the delays in the appeal court does not change the fact that he was convicted of an offence which is equivalent to an offence in Canada, and which is regarded as a serious offence in both countries.

20     The Officer assessed the two provisions, properly applied the test established in Hill and reasonably concluded that they were equivalent offences.

Did the delay in rendering a decision amount to a breach of procedural fairness?

21     The applicant submits that the Officer's over 18 month delay in making a decision is unwarranted and also submits that this delay demonstrates that the Officer's "mind was made up that she was going to find the inadmissibility and was at a loss to find any legal reason for doing so."

22     I do not agree that the delay was excessive in the circumstances, given that Mr Patel's own conduct contributed significantly to the delay. The applicant did not disclose her husband's conviction in the initial application. The Officer was made aware of the conviction several months later by a FBI criminal records check. The Officer then requested that Mr Patel attend an interview to discuss the conviction. The CAIPS notes dated June 3, 2010 indicate that the Officer determined that "In order to proceed, an interview is warranted to discuss circumstances of arrest & conviction." The December 2, 2010 entry refers to the interview and indicates that the Officer asked Mr Patel to describe the events surrounding his arrest and conviction, however, Mr Patel did not have any documentation to substantiate any of his statements. The Officer again requested documentation: "In order to proceed, I require all court documents." An amended background declaration was submitted by the applicant in February 2011, promising that details would follow. On July 11, 2011 the Officer sent another request which acknowledged receipt of some documents on May 31, 2011, and requested the criminal docket ("In order to proceed, I require the Criminal Docket"). This was provided by the applicant on September 15, 2011. In addition, the Officer sought details of "other charges" which were noted on the computer printout of the Court docket.

23     The CAIPS notes of January 24, 2012 indicate that the Officer considered all the documents which were provided over the course of many months, the submissions and the statutes:

·        I have taken into consideration all of PI's submissions, including the State of NC Impaired Driving-Judgment, court records, Determination of Sentencing Factors, proof of completion of community service work, Magistrate's Order, Affidavit of Mike Hearp, opinion of Cecil Rotenberg, PI's Affidavit, as well as the FBI record check and a copy of the statute under which he was convicted. 

24     The Officer's delay in rendering a decision was due to the need to ensure that she had all the required information and could assess the details of Mr Patel's NC conviction and conduct the assessment of equivalency. In such circumstances, the delay, much of which can be attributed to the applicant's own conduct in not providing the necessary documents in a timely manner, cannot constitute a breach of procedural fairness.

Did the Officer's conduct amount to a breach of procedural fairness?

25     The applicant submits that the Officer was rude to Mr Patel and his counsel and failed to permit counsel to attend one of the interviews of Mr Patel.

26     The allegations of rudeness, which refer to the Officer's demands for documents and her admonishment of Mr Patel for his failure to provide the documents, would not constitute any breach of procedural fairness.

27     The alleged exclusion of counsel for Mr Patel from his interview has not resulted in a breach of procedural fairness given that the purpose of the interview was to discuss Mr Patel's conviction and to review the necessary court documents that Mr Patel failed to bring. Generally, there would be no interview at all. Mr Patel and his counsel had opportunities to and did make additional submissions with respect to the circumstances of the offence and its equivalency to the Canadian offence which the Officer considered. Moreover, a breach of procedural fairness, does not necessarily result in the quashing of the decision (Cha v Canada (Minister of Citizenship and Immigration), 2006 FCJ 491, para 67; Mobil Oil Canada Ltd v Canada Newfoundland Offshore Petroleum Board, [1994] 1 SCR 202, at 228.

Do missing documents in the CTR render the decision unreasonable?

28     The applicant raised an additional ground of review noting that the CTR was incomplete and as a result, it should be presumed that the Officer failed to take into account relevant evidence submitted.

29     The respondent concedes that the CTR does not include all the documents that the applicant submitted to the Officer. However, the Officer received and considered all the documents and referred to them in the CAIPS notes. These documents have been provided via the applicant's record. As a result, a proper review of the decision is possible.

30     I agree with the respondent that it is clear from the entries in the CAIPS notes that the Officer had all the documents, including those now not part of the CTR. Although the possible explanation that the missing documents may be due to the closure of the Buffalo Consulate and the transfer of the files is troubling, the documents in question are included in the applicant's record and are available to the Court to permit judicial review.

31     In Bolanos v Canada (Minister of Citizenship and Immigration), 2011 FC 388, [2011] F.C.J. No. 497, Justice Russell dealt with a similar situation and noted that an incomplete record is not necessarily grounds to set aside a decision, particularly where the decision-maker considered the material in question and the material is available to the Court. At para 52, he wrote that:

·        [52] All in all, I cannot accept that the gaps in the CTR reveal that the RPD did not look at all of the documentation submitted or at the written submissions of counsel. Hence, in my view, the RPD's Decision is before the Court because the Applicant has reproduced the gaps in the CTR as part of her record. This means that I can review and assess the documentation and information that was before the RPD when this Decision was made. Justice Barbara Reed in Parveen v Canada (Minister of Citizenship and Immigration) (1999), 168 FTR 103, 1 Imm. L.R. (3d) 205 at paragraph 9 pointed out that "an incomplete record alone could be grounds, in some circumstances, for setting aside a decision under review."While this Court has subsequently cited and followed Justice Reed on this point - see, for example, the decision of Justice Elizabeth Heneghan in MacDonald v Canada (Attorney General), 2007 FC 809 - the circumstances of the present case do not give rise to a problem because the record shows that the RPD did consider all of the Applicant's PIF amendments and counsel's submissions, and the missing pages from the CTR are before the Court in the Applicant's record. 

32     Similarly, in Clarke v Canada (Minister of Citizenship and Immigration), 2009 FC 357, [2009] F.C.J. No. 441, Justice Phelan noted at para 17 that "[w]hile an incomplete record may be a basis for a breach of procedural fairness; that is not always so, especially where there was no actual unfairness, as is the case here."

Did the Officer unreasonably refuse the H&C request?

33     The applicant's H&C submissions anticipated a possible finding of inadmissibility and disputed that finding with the same assertions: that Mr Patel had not consumed alcohol; that the arresting officer charged Mr Patel as a "face saving measure"; and that the North Carolina offence of driving under the influence was not equivalent to an offence in Canada as it had a much wider application in that it captured impairment by substances other than alcohol or drugs.

34     The applicant submitted that she had been approved as an investor, had made an investment of $400,000, and if the application were refused, she would suffer disappointment due to her investment of money, time and effort. She noted that Canada would be denied the benefit of this investment and the future economic success of the applicant and her family who proposed to settle in Canada. In addition, the applicant submitted that she and Mr Patel have a strong and positive profile in their community, the applicant has no criminal record, and that Mr Patel received a letter of commendation from the Parole Commission (upon completion of his sentence).

35     The applicant submits that the Officer's refusal of the H&C exemption was not reasonable and that the submissions were not considered. The applicant referred to Abid v Canada (Minister of Citizenship and Immigration), 2011 FC 164, [2011] F.C.J. No. 208 [Abid], where Justice Snider considered whether H&C submissions had been adequately considered and noted at para 36:

·        [36] The Respondent correctly points out that Officers considering H&C requests are only obliged to consider factors commensurate with the submissions presented to them (Owusu v Canada (Minister of Citizenship and Immigration), 2004 FCA 38, [2004] 2 FCR 635 at para 8). However, the question in this case is whether the Officer, faced with representations, had due regard for the submissions that were made. In my view, he did not. 

36     Justice Snider found on the facts of Abid that the Officer made errors including that he failed to consider that the applicant had four children rather than two when considering the best interests of the children and failed to consider that the applicant's criminal conviction was 17 years earlier.

37     In the present case, the Officer did not make factual errors in assessing the H&C factors and in refusing the H&C based on the nature of the submissions made by the applicant.

38     Although the Officer does not provide detailed reasons for refusing the H&C request, the refusal letter and the CAIPS notes indicate that the Officer considered these submissions.

39     In my view, the record permits the Court "...to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes..." (Newfoundland and Labrador Nurses' Union v Newfoundland and Labrador (Treasury Board), [2011] 3 SCR 708, 2011 SCC 62 at para 16).

40     As noted by the respondent, in order to obtain a visa in the entrepreneurial category, applicants are required to make a financial investment and this cannot also be considered as a factor for an H&C exemption.

41     Given that the applicant was applying from outside of Canada and the applicant did not raise hardship to her or her family, other than related to their investment, and their disappointment, the Officer's finding that there were no H&C grounds to justify an exemption is reasonable.

Did the Officer demonstrate bias?

42     The applicant argues that there was a reasonable apprehension that the Officer was biased and that a reasonably informed person would so conclude based on the Officer's conduct and the delay in reaching a decision. The applicant alleges that the delay demonstrates that the Officer's "mind was made up that she was going to find the inadmissibility and was at a loss to find any legal reason for doing so."

43     With respect to the allegations of bias, the applicant and respondent agree that the test for bias is that set out by Justice de Grandpré, writing in dissent, in Committee for Justice and Liberty v Canada (National Energy Board),[1978] 1 SCR 369 at p 394:

·        ... the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information... [T]hat test is "what would an informed person, viewing the matter realistically and practically -- and having thought the matter through -- conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly. 

44     As stated in R v RDS, [1997] 3 SCR 484, [1997] S.C.J. No. 84 by Justices L' Heureux-Dubé and McLachlin, referring to the above noted test:

·        113 Regardless of the precise words used to describe the test, the object of the different formulations is to emphasize that the threshold for a finding of real or perceived bias is high. It is a finding that must be carefully considered since it calls into question an element of judicial integrity. Indeed an allegation of reasonable apprehension of bias calls into question not simply the personal integrity of the judge, but the integrity of the entire administration of justice. See Stark, supra, at paras. 19-20. Where reasonable grounds to make such an allegation arise, counsel must be free to fearlessly raise such allegations. Yet, this is a serious step that should not be undertaken lightly. 

45     The same principle applies to allegations of bias against other decision-makers; allegations of bias are serious and should be made with caution.

46     In the present case, there is no evidence on the record to suggest that an informed person would have a reasonable apprehension of bias; i.e., that the Officer would not decide fairly or that the Officer pre-judged the application. The applicant's contention that the delay in rendering a decision was because the Officer had made up her mind but could not find reasons to justify her decision is completely without merit. As noted above, the delay in rendering a decision was, to a great extent, due to Mr Patel's conduct in first not disclosing his conviction and then not providing the documentation requested and required under section 16 of the Act. The Officer's CAIPS notes indicate that several requests for information were made, and the dates the information was received. There is no indication of bias; the Officer considered the evidence as it was provided and focused on the test to determine whether the offences were equivalent.

Proposed Certified Question

47     The applicant proposed a multi-part question for certification that basically asserts and expands on the very arguments made before the Court and questions the findings which can be summarized as follows: that Mr Patel was not driving under the influence of alcohol; that he was convicted without proof and based on a presumption arising from his failure to blow into the breathalyzer; that this evidence would not result in a conviction in Canada; that Mr Patel abandoned his appeal after two years because the "Crown" (sic) did not address the appeal; that the Hill test should not be interpreted to keep people who are not guilty out of Canada; and, that there is justification for a Humanitarian and Compassionate exemption pursuant to section 25.1 of the Act.

48     The proposed question for certification does not meet the test established by the Federal Court of Appeal in Liyanagamage v Canada (Minister of Citizenship and Immigration), [1994] F.C.J. No. 1637, 51 ACWS (3d) 910. The proposed question is particular to the facts of the case from the perspective of the applicant and does not raise issues of broad significance or general application.

49     The proposed question is based on the applicant's own view of her husband's conduct which resulted in his conviction for driving under the influence and her own view of the North Carolina law and the Canadian law. As I have found, the Officer reasonably found that Mr Patel was convicted of the offence of driving under the influence which is equivalent to the offence of impaired driving. The certified question proposed or some aspect or variation of that question can not revisit this determination.

JUDGMENT

THIS COURT'S JUDGMENT is that:

·        1. 

The application for judicial review is dismissed; 

·        2. 

No question is certified 

KANE J.

OFFICER ERRED IN DOCUMENT FRAUD COMPARISON IN UNITED STATES OFFEncE

The question of criminal equivalency is always contentions and fertile ground for litigation. In the case below, a person who had been declared to be a Convention refugee in Canada but had been deported from the United States after a conviction for document fraud received a reprieve from the Federal Court when the officer did not do an adequate comparison of the offences and failed to consider humanitarian and compassionate grounds submissions. What is unclear from the case is whether the applicant had disclosed the conviction in his refugee application, and if he did not, why a misrepresentation allegation was not pursued.

Kathirgamathamby v. Canada (Minister of Citizenship and Immigration)

Between
Sabanayagam Kathirgamathamby, Applicant, and
The Minister of Citizenship and Immigration, Respondent

[2013] F.C.J. No. 874

2013 FC 811

Docket IMM-2972-12

 Federal Court
Toronto, Ontario

Heneghan J.

Heard: January 31, 2013.
Further submissions: February 15 and March 7, 2013.
Judgment: July 23, 2013.

(27 paras.)

---

·       REASONS FOR ORDER AND ORDER

HENEGHAN J.:--

INTRODUCTION

1     Mr. Sabanayagam Kathirgamathamby (the "Applicant") seeks judicial review of the decision of an officer (the "Officer") at Citizenship and Immigration Canada at the Case Processing Centre in Vegreville, Alberta, dated March 6, 2012, denying his application for permanent residence. The application was refused because the Applicant was found to be inadmissible to Canada pursuant to paragraph 36(1)(b) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the "Act").

BACKGROUND

2     The Applicant is a citizen of Sri Lanka. On September 25, 2007, he landed at the Los Angeles airport, from Sri Lanka, in possession of a fraudulent passport. He was arrested and charged with fraud under the United States Code, particularly 18 U.S.C. s.1028(a)(4). He pleaded guilty to the charge on December 13, 2007. He was held in immigration custody from September 2007 until April 2009.

3     In May 2009, the Applicant entered Canada and applied for refugee protection. A report was prepared, pursuant to section 44 of the Act, on October 2, 2009. On February 1, 2011, the Applicant was found to be a Convention refugee.

4     On February 18, 2011, the Applicant, his wife and two children applied for permanent residence in Canada. On November 21, 2011, Citizenship and Immigration Canada ("CIC") asked the Applicant to explain his criminal charge in the United States and to amend his application to reflect his conviction. By letter dated November 30, 2011, the Applicant explained that because his life was in danger in Sri Lanka, he "had to obtain a fraudulent passport to escape Sri Lanka."

5     By letter dated March 6, 2012, the Officer informed the Applicant that he was found inadmissible under subsection 36(1) of the Act for the offence of fraud in the United States in 2007. The Officer found the offence under the United States Code 1028(a)(4) to be equivalent to section 403 of the Criminal Code, R.S.C. 1985, c. C-46 (the "Criminal Code"), an offence punishable by imprisonment for a term not exceeding ten years. Accordingly, the Officer refused the Applicant's permanent residence application.

SUBMISSIONS

6     The Applicant focused his initial arguments upon the equivalency assessment conducted by the Officer. He argued that he could not be charged or convicted in Canada, in the face of section 133 of the Act. He submits that there cannot be equivalency in the circumstances of a Convention refugee who was convicted of any offence equivalent to those set out in section 133.

7     Further, the Applicant submits that the Officer erred in the equivalency analysis. He argues that section 403 of the Criminal Code relates to the use of documents relative to identity theft. He says that since this essential element of section 403 was not established, the Officer erred in finding equivalency between the American offence of which he was convicted and section 403.

8     The Applicant also argues that the Officer unreasonably failed to consider the availability of humanitarian and compassionate ("H&C") factors, pursuant to section 25 of the Act, when rejecting his permanent residence application.

9     The Minister of Citizenship and Immigration (the "Respondent") disputes the Applicant's view of section 133 of the Act and submits that section 133 does not apply to his situation because he was not a refugee claimant in Canada when he was charged and convicted.

10     The Respondent initially argued that the Officer reasonably concluded that section 403 was equivalent to the offence for which the Applicant was convicted in the United States.

11     The Respondent also argues that the Officer reasonably did not consider H&C factors, on the basis that the Applicant had not requested such consideration and had failed to disclose his conviction of an offence.

12     In the course of the hearing of this application for judicial review further arguments arose as to the evidentiary basis for the Officer's equivalency analysis and the parties were given the opportunity to file further submissions, first by the Respondent with submissions to be filed by the Applicant in reply. The Respondent, by further submissions filed on February 15, 2013, argued that the Officer had not been authorized to conduct an equivalency analysis because the Applicant had already been found inadmissible for his conviction in the United States. As well, the Respondent sought to file the affidavit of Helen Medeiros, together with exhibits, in support of its further submissions.

13     By reply submissions dated March 7, 2013, Counsel for the Applicant objected to the Respondent's attempts to introduce further evidence and argued that the Respondent's defence had been based on the Officer's purported equivalency exercise, and not on a prior inadmissibility finding.

DISCUSSION AND DISPOSITION

14     The dispositive issue in this application for judicial review is the Officer's finding of inadmissibility on the basis of subsection 36(1), specifically paragraph 36(1)(b). This finding depends on the equivalency analysis conducted by the Officer. The inadmissibility finding then is a question of mixed fact and law reviewable on the standard of reasonableness; see the decision in Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190 at para. 51.

15     In the present case, the three issues raised by the Applicant are subject to review on the standard of reasonableness. The issues of the availability of a section 133 defence and the Officer's equivalency analysis involve questions of mixed fact and law, while the issue of the Officer's failure to consider H&C factors relates to the exercise of his discretion.

16     In Dunsmuir, supra, para. 47, the Supreme Court of Canada stated:

·       ...A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. 

17     I agree with the Respondent that the application of section 133 does not arise here. The decision in Uppal v. Canada (Minister of Citizenship and Immigration) (2006), 289 F.T.R. 196 is determinative. The Applicant used a fraudulent document to enter the United States, not Canada. At paragraphs 21-25, Justice Layden-Stevenson made it clear that section 133 could shield a person from a finding of inadmissibility only if the fraudulent document was used for the purpose of entering Canada.

18     However, in my opinion, there is a problem with the Officer's treatment of the equivalency issue and with the Respondent's submissions concerning the same.

19     In his initial submissions, the Respondent took the position that the Officer had reasonably concluded that there was equivalency between the American offence and section 403 of the Criminal Code but in the supplementary submissions, he argues that the Officer was not authorized to conduct an equivalency assessment because the Applicant had already been found to be inadmissible.

20     In my opinion, those two positions advanced by the Respondent are inconsistent and diametrically opposed. The basis for the inadmissibility finding was the alleged equivalency between the offence in the United States and the offence described in section 403 of the Criminal Code. Further, in any event, in my view the equivalency finding is flawed because the Certified Tribunal Record ("CTR")does not contain evidence that would support that finding. This evidentiary defect is not cured by the affidavit which the Respondent sought to file with his further submissions of February 15, 2013.

21     The Respondent seeks to rely on the material contained in the response to the request made under Rule 9 of the Federal Courts Immigration and Refugee Protection Rules, SOR/93-22 as constituting the evidence for the equivalency analysis. In my opinion, this argument cannot succeed.

22     The Rule 9 response, according to the terms of Rule 9, is the decision and the reasons for that decision. The decision itself cannot be the "evidence" in support of the decision.

23     In any event, neither the Rule 9 response nor the CTR contain evidence as to the constituent elements of the American offence for the purpose of conducting the tests for equivalency as set out in the decision in Hill v. Canada (Minister of Employment and Immigration) (1987), 73 N.R. 315 (F.C.A.). The absence of a reliable evidentiary foundation for the equivalency analysis means, in my opinion, that that analysis is not reasonable.

24     The Officer committed a reviewable error in the conduct of the equivalency analysis. The Officer's decision simply states that the American offence is equivalent to section 403 of the Criminal Code. However, there is neither any evidence in the record to support this finding, nor any reasoning from the Officer explaining how he reached this conclusion. The decision accordingly fails to meet the criteria of transparency and intelligibility.

25     In my opinion, the Officer further erred in declining to consider H&C factors. Although the Applicant did not explicitly request consideration of H&C factors, he did point out that he used a fraudulent passport in order to escape danger to his life. He provided an explanation.

26     This fact, together with the fact that he was recognized in Canada as a Convention refugee, invites consideration of all relevant factors that could promote the continuing protection of the Applicant. The H&C discretion conferred by section 25 of the Act is such a relevant factor, a point recognized by Justice Snider in Abid et al. v. Canada (Minister of Citizenship and Immigration) (2011), 384 F.T.R. 74 at paras. 35 and 39, as follows:

·       [35] The first error made by the Officer, in my view, is that he incorrectly found that no submissions on H&C grounds were made. While the submissions of the Applicants' consultant leave much to be desired, there are a number of references to H&C grounds (albeit without use of the term "humanitarian and compassionate grounds"). The consultant refers to the status of the Principal Applicant as a Convention refugee. Moreover, the letter of January 26, 2010 from the consultant contains the following: 

·       It is also important to understand my client is a very decent, honest and credible person... . It is true that he made a mistake 17 years ago and he paid for that mistake and he is now a family man and a licensed technician in Canada. He has no criminal records in Canada or anywhere in the world after 1993. 

In my view, these were clear H&C submissions.

[...]

·       [39] The H&C Guidelines provide that, when assessing criminal inadmissibility and an exemption for it, an officer is required to take into account a series of factors. One of the key factors is the likelihood of re-offending. 

·       11.4. 

Criminal inadmissibilities 

·       When considering the H&C factors, officers should assess whether the known inadmissibility, for example, a criminal conviction, outweighs the H&C grounds. They may consider factors such as the applicant's actions, including those that led to and followed the conviction. Officers should consider: 

·       * the type of criminal conviction; 

·       * what sentence was received; 

·       * the length of time since the conviction; 

·       * whether the conviction is an isolated incident or part of a pattern of recidivist criminality; and 

·       * any other pertinent information about the circumstances of the crime 

27     In the result, this Application for judicial review is allowed, the decision is set aside and the matter remitted to a different officer for re-consideration, no question for certification arising.

ORDER

THIS COURT ORDERS that this Application for judicial review is allowed, the decision is set aside and the matter remitted to a different officer for re-consideration, no question for certification arising.

HENEGHAN J.

FAKE US "LAWYER" ORDERED TO PAY $100K TO VICTIMS

This is the way to deal with fraud artists. Canada should take notice.

Imposter attorney ordered to pay $100,000 to victims of latest immigration scam

News Releases

July 31, 2013

San Diego, CA

Imposter attorney ordered to pay $100,000 to victims of latest immigration scam
Serial fraudster's restitution tab now totals $750,000 and involves more than 100 victims

SAN DIEGO — A 45-year-old serial immigration fraudster, who was convicted last month of felony theft in state court for a third time, has been ordered to pay more than $100,000 in restitution to the victims of her latest immigration fraud scheme.
The restitution order is the most recent action against Bemilda "Linda" Asuncion Ruiz stemming from a lengthy probe by U.S. Immigration and Customs Enforcement's (ICE) Homeland Security Investigations (HSI) in San Diego. Monday a superior court judge ordered the San Diego woman to repay thousands of dollars to 20 victims she defrauded between 2010 and 2012.
Following her arrest by HSI special agents in December 2012, Ruiz admitted to charging clients for legal services while posing as an immigration attorney. Ruiz promised to get the clients work permits and driver's licenses and other immigration benefits. Most of her victims were illegal immigrants, but they also included a legal resident who was applying for U.S. citizenship. In addition, several people paid her to get immigration benefits for family members.
Earlier this year, Ruiz was convicted in superior court in San Diego of two counts of felony grand theft and sentenced to five years in state prison, which she is currently serving.
"This case is an egregious example of a serial fraudster who had no qualms about exploiting illegal immigrants for financial gain," said Derek Benner, special agent in charge for HSI San Diego. "The persistent investigative work by HSI special agents has rooted out a particularly stubborn immigration scam in which a significant number of individuals were defrauded. Our work will continue, however, until each of the victims gets back the hard earned money they paid for what proved to be broken promises."
Investigators say Ruiz began operating her phony immigration business in 1999. Over the course of the next six years, she defrauded dozens of victims until her 2005 arrest by HSI special agents. Following that arrest, Ruiz was convicted in state court on five counts of felony grand theft and sentenced to one year in county jail. In addition, a superior court judge ordered Ruiz to pay more than $50,000 in restitution to her victims.
While Ruiz was out on bail in that case, she continued defrauding people so she could pay the restitution she owed to her first group of victims.
HSI special agents continued investigating the suspected fraud and served Ruiz with an arrest warrant in August 2006, prior to her release from jail. For the second time, Ruiz was convicted after pleading guilty to multiple counts of identity theft in state court. In April 2007, she was sentenced to four years in state prison and directed to pay nearly $600,000 as part of her second restitution order. Ruiz was released from criminal custody in August 2009 and by January 2010 she had revived her immigration scam.
All told, over the course of the last eight years, Ruiz has been ordered to pay more than $750,000 in restitution to more than 100 victims identified during the course of three separate HSI investigations.