Date: 20100618
Docket: IMM-5446-09
Citation: 2010 FC 665
Ottawa, Ontario, June 18, 2010
PRESENT: The Honourable Madam
Justice Snider
BETWEEN:
YURI BAYBAZAROV
Applicant
and
THE
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR
JUDGMENT AND JUDGMENT
[1]
The Applicant, Mr. Yuri Baybazarov, is a citizen of Russia. He submitted an application for permanent residence in Canada on August 21, 2006. The Applicant applied in the investor
category after a positive selection as a Prince Edward Island Provincial
Nominee. In a decision dated October 14, 2009, an Immigration Officer, in
Moscow, Russia determined the Applicant inadmissible under s. 37(1)(b) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) on grounds of
engaging, in the context of transnational crime, in activities such as money
laundering.
[2]
The Applicant seeks judicial review of this decision on the
basis that the Officer breached procedural fairness by not disclosing extrinsic
evidence to the Applicant. On the facts of this application and for the reasons
that follow, I agree with the Applicant and will allow this application for
judicial review.
I. Background
[3]
After the Applicant was interviewed in Moscow, on June 21, 2007, two documents were received by the
Officer:
1.
Message HQOC2532 (CBSA report), a document classified as
“secret”, from Canadian Border Services Agency’s Organized Crime Section (OCS).
OCS recommended further scrutiny of the Applicant’s potential criminal
relations, and the “provenance and legitimacy of the large sums in question”.
2.
A report from Financial Transactions and Reports Analysis
Centre of Canada (FINTRAC). FINTRAC found suspicious financial activity
relating to the Applicant, his business partner in Canada and their corporation, Nuspark Inc.
[4]
On July 23, 2009, a fairness letter (fairness letter) was
sent to the Applicant. The fairness letter stated that the Officer had
reasonable grounds to believe the Applicant was inadmissible under s. 37(1)(b)
of IRPA.
According to
information received from our partner agencies, you and your prospective
business partner . . . have transferred large sums of money among your various
bank accounts via electronic fund transfer (EFTR) through banks located in
countries such as Switzerland, Cyprus, Latvia (emphasis added).
[5]
Outside of stating “our partner agencies”, the Officer did
not mention CBSA or FINTRAC reports. Moreover, the Officer did not disclose any
specific concerns about the source of the Applicant’s employment income. The
Immigration Officer merely listed nine transactions between October 6, 2004 and
July 5, 2006. The Applicant was granted 90 days to respond to the allegations
of money laundering.
[6]
In the rejection letter, the Officer provided the following
rationale for his decision:
While you contend that
the source of your funds was earned through valid and legal employment in Russia, you have
failed to substantiate that the source of your employment income is entirely
legitimate or how you have amassed your significant net worth.
II. Analysis
[7]
The determinative question in this application is whether, based
on the CBSA report (which was not disclosed to the Applicant), the Applicant
was not afforded a reasonable opportunity to disabuse the Officer’s concerns
about the source and legitimacy of his employment income, which were key
findings in the CBSA report.
[8]
The Applicant argues that the Officer relied on the CBSA
report to come to his final determination. Because the Officer did not disclose
the CBSA report, its contents, or concerns related to the Applicant’s
employment income in the fairness letter, the Applicant had no opportunity to
address this issue. This is the crux of the Applicant’s allegation of breach of
procedural fairness (see Rukmangathan v. Canada (Minister of Citizenship and Immigration),
2004 FC 284, 247 F.T.R. 147; Khwaja v. Canada (Minister of Citizenship and
Immigration), 2006 FC 522, [2006] F.C.J. No. 703 (QL); Mekonen v. Canada (Minister of Citizenship and
Immigration), 2007 FC 1133, 66 Imm. L.R. (3d) 222; Suleyman
v. Canada (Minister of
Citizenship and Immigration), 2008 FC 780, 330
F.T.R. 205).
[9]
The Respondent argues that, on the facts of this case, it
was not necessary to disclose the CBSA report. The Applicant failed to satisfy
the Officer that the transactions listed in the fairness letter were
legitimate. As such, regardless of whether the CBSA report was disclosed, the
Applicant would have still been found inadmissible. Furthermore, at the time,
the CBSA report was classified as secret. The Responded relies on Au v.
Canada (Minister of Citizenship and Immigration), 2001 FCT 243, 202 F.T.R.
57 to argue that there is no breach of procedural fairness if an applicant is
given the opportunity to respond to concerns raised in an officer’s mind (at
para. 33).
[10]
The jurisprudence of this Court is clear on a visa
officer’s duty of procedural fairness in relation to extrinsic evidence.
[11]
First and foremost, applicants have the burden to establish
entitlement to a visa. Applicants bear the responsibility to produce relevant
information to assist their application. There is no obligation on officers to
apprise an applicant of concerns that arise directly from statutory
requirements. Officers are also not required to give applicants a “running
score” of weaknesses in applications. See Rukmangathan, above, at
paragraph 23; Nabin v. Canada (Minister of Citizenship and Immigration),
2008 FC 200, [2008] F.C.J. No. 250 at paragraph 7; Rahim v. Canada (Minister of Citizenship and
Immigration), 2006 FC 1252, 58 Imm. L.R. (3d) 80 at
paragraph 14.
[12]
Second, officers have a duty to notify applicants where: a)
concerns arise about credibility, accuracy or genuineness of the information
submitted (see Nabin, above, at para. 8); or b) the officer has relied
on extrinsic evidence (see Rukmangathan, above, at para. 22; Nabin,
above, at para. 8; Mekonen, above, at para. 4). The purpose of this duty
is to allow applicants a fair and reasonable opportunity to know the case
against them and to respond to concerns.
[13]
In determining whether non-disclosure of extrinsic evidence
amounts to a breach of procedural fairness, Justice Dawson applied the
“instrument of advocacy” test. This asks whether the document was designed “to
have such a degree of influence on the decision maker that advance disclosure
is required to ‘level the playing field’” (Mekonen, above, at para. 19).
[14]
Ultimately, the underlying inquiry in the context of an
officer using extrinsic evidence is as follows (Mekonen, above,
at para. 27):
[…] the question is not whether the report is or contains
extrinsic evidence of facts unknown to the person affected by the decision, but
whether the disclosure of the report is required to provide the person with a
reasonable opportunity to participate in a meaningful manner in the
decision-making process.
[15]
Applying these principles to the case at hand, two
questions must be answered: a) was the extrinsic evidence an instrument of
advocacy; and b) was disclosure of the CBSA report necessary for the Applicant to
reasonably disabuse the Officer’s concerns in a meaningful manner?
[16]
To answer the first question, I find that the CBSA report
is an instrument of advocacy. The CBSA report discloses a number of
serious allegations in considerable detail. The allegations appear to tie the
Applicant or his publishing company to known organized crime figures. In cross-examination on his affidavit, the Officer was asked about his
reliance on the CBSA report. He made a telling admission: “I did consider it,
but I did not list it in the procedural fairness letter”.
[17]
Because of the Officer’s admitted reliance on the CBSA
report, and the Officer’s suspicions of the Applicant’s employment income, my
answer to the second question is also yes. As admitted by the Officer, the
fairness letter made no reference to the CBSA report or these allegations. The
CBSA report (or at least the substance of its contents, if secrecy was an
issue) ought to have been disclosed in the fairness letter. Without this
disclosure, the Applicant had no way of meaningfully responding to concerns
that his source of income was illegitimate.
[18]
Considering the significance of this issue in the Officer’s
mind and final determination, it was incumbent upon the Officer to at least
raise this issue or disclose the gist of the CBSA report. This was not done.
Having failed to do so, I find that the Officer breached procedural fairness.
The Applicant had no meaningful way to respond to the Officer’s specific
concerns. At the end of the day, there was no level playing field.
III. Conclusion
[19]
In light of the above, I will allow this judicial review
application. Neither party proposed a question for certification.
[20]
In his Notice of Application, the Applicant seeks his
costs. There are no special circumstances that would warrant an award of costs
in this matter; no costs will be awarded.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that:
1.
The
application for judicial review is allowed, the decision of the Officer is
quashed and the matter remitted to a different Immigration Officer for
re-determination.
2.
No
question of general importance is certified.
3.
Each
party is to bear its own costs.
“Judith A. Snider”
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