Date: 20070720
Docket: IMM-936-06
Citation: 2007 FC 756
Ottawa, Ontario, July 20, 2007
PRESENT: The
Honourable Mr. Justice Blanchard
BETWEEN:
WAZIR ALI PARDHAN
Applicant
and
THE
MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
The Applicant seeks judicial review of the December
14, 2005 decision of a Visa Officer (the Officer) denying his application for
permanent residence because he was found to be inadmissible on grounds of
serious criminality. In support of his application for permanent residence, the
Applicant’s wife had submitted a forged document.
1. Background
[2]
The Applicant, Wazir Ali Pardhan, is a citizen
of Pakistan, who in February
2005 applied for a permanent residence visa at the Canadian High Commission in Islamabad, Pakistan, under the category of
business immigrant-investor. The Applicant’s wife, Sumera Amir Ali, and their
four minor children were included as accompanying dependents. The Applicant’s
wife signed a background declaration which accompanied the application,
confirming that she had obtained a Higher Secondary School Certificate (HSC or Certificate) from the “Board of Intermediate Education
Karachi”. The Certificate was submitted with the application.
[3]
In reviewing the application, the Officer advised
the Applicant that she had reasonable grounds to believe that his wife’s HSC
was a false document. In a letter dated October 24, 2005, the Officer notified
the Applicant of her concerns with respect to this document and invited the
Applicant to respond.
[4]
The Applicant responded by letter wherein he
admitted the certificate was not a genuine document and filed an affidavit by
his wife wherein she attested that the certificate was not genuine and that her
husband had not been aware of this fact. She explained that the Certificate had
been arranged by her parents and given to her in-laws after her marriage in
order to keep their word that she had a high school degree. She further attests
that her parents had informed her in-laws prior to her marriage that she had
indeed obtained an HSC and wanted to avoid embarrassment.
2. Impugned
Decision
[5]
By letter dated December 14, 2005, the Officer denied the application
for the following reasons:
(a) The
Applicant was a person described in paragraph 36(1)(c) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the Act) and is thereby
inadmissible by reason of serious criminality;
(b) The
Applicant’s wife proffered as genuine a forged document in violation of article
471 of the Pakistan Penal Code and is equivalent to an offence under subsection
368(1) of the Criminal Code, R.S.C. 1985, c. C-46; and
(c) Since
the Applicant’s wife is inadmissible, the Applicant is inadmissible by
operation of subsections 11(1) and 42(a) of the Act.
3. Issues
[6]
Did the Officer err in finding the Applicant to be inadmissible as a
result of his being a person described in subsection 36(1) of the Act?
4. Standard of Review
[7]
In Ouafae v. Canada (Minister of Citizenship and Immigration),
2005 FC 459 at paragraphs 18 to 20, my colleague, Justice Yves de Montigny,
reviewed the jurisprudence of this Court on the issue of the applicable
standard of review of decisions of visa officers. I am in agreement with his
assessment of the jurisprudence. The nature of the decision under review is a
key factor. Here, the question is one of mixed fact and law; is the Applicant
inadmissible by reason of serious criminality? The facts are essentially
admitted and the Officer must consider the application of various sections of
the Act. The decision does not call for the exercise of discretion.
[8]
In these circumstances, less deference is warranted by a reviewing
Court. I therefore find that the applicable standard of review for the question
before me is reasonableness simpliciter.
5. Analysis
[9]
The Applicant was found to be inadmissible pursuant to paragraph 36(1)(c)
of the Act. The provision requires that it be established that the act
committed outside Canada constitutes an offence in the place it was committed
and, that the act, 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.
[10]
The inquiry mandated by the Act requires a determination of the
equivalency of the two offences. To do so the essential elements of the
offences must be compared in order to determine if they correspond. In Brannson
v. Canada (Minister of Employment and Immigration), [1981] 2 F.C.
141 at pages 152-153, Justice Ryan stresses the importance of analyzing the
essential elements of the offences:
…Whatever the names given the
offences or the words used in defining them, one must determine the essential
elements of each and be satisfied that these essential elements correspond. One
must, of course, expect differences in the wording of statutory offences in
different countries….
[11]
A criminal equivalency assessment must be conducted
by the Visa Officer in making his or her determination as to the applicability
of paragraph 36(1)(c) of the Act. The jurisprudence of the Federal Court
of Appeal has established that equivalency can be determined in three ways:
(1) by comparing the precise wording in each statute
both through documents and, if available, through the evidence of experts in
the foreign law in order to determine the essential elements of the respective
offences;
(2) by examining the evidence, both oral and
documentary, to ascertain whether that evidence is sufficient to establish that
the essential elements of the offence in Canada had been proven in the foreign
proceedings, whether precisely described in the initiating documents or in the
statutory provision in the same words or not;
(3) a combination of the two.
See Brannson v. Minister of Employment and Immigration,
[1981] 2 F.C. 141; (1980), 34
N.R. 411 (C.A.); Hill v. Minister of Employment and Immigration (1987),
73 N.R. 315 (F.C.A.); Steward v. Canada (Minister of Employment and Immigration), [1988] 3 F.C. 487; (1988), 84 N.R. 236 (C.A.).
[12]
In her decision letter, the Officer indicated that
the Applicant’s wife had committed an offence under the section 471 of the
Pakistan Penal Code, by using as genuine a forged document. The Officer cited
that section of the Pakistan Penal Code and concluded that the act constituted
an offence under the laws of the place where it occurred. She then concluded,
without further analysis, that if committed in Canada, the offence would be punishable under subsection 368(1) of the Criminal
Code of Canada by a maximum term of imprisonment of at least ten years. The
Officer then cited that section of the Criminal Code of Canada. The
Officer conducted no further equivalency analysis in her decision.
[13]
While the pertinent sections of the two offences
were cited in the Officer’s decision letter, no analysis was conducted in
respect to the precise wording in each statute. The essential elements of the
offences in play were not identified by the Officer and consequently not
compared to assess whether they correspond. Further, no expert evidence on
foreign law was adduced in this case, without which, one can only speculate as
to whether all of the requisite elements have been met to conclude, as did the
Officer, that an offence under the laws of Pakistan occurred. Further, no examination of the evidence was conducted by the
Officer to ascertain whether or not the evidence adduced was sufficient to
establish that the essential ingredients of the offence in Canada had been proven for the purpose of the
foreign proceedings.
[14]
It may well have been open to the Officer to
conclude as she did, but the Court is not in a position to speculate on that
result absent a proper equivalency assessment as dictated by the above cited
jurisprudence. The Officer’s equivalency assessment is deficient and as a
result, the Officer’s finding of inadmissibility by reason of serious
criminality cannot stand. In the circumstances, this constitutes a reviewable
error.
[15]
For the above reasons the application for judicial
review will be allowed. The matter will be returned for
reconsideration before a differently constituted panel of the Immigration and
Refugee Board in accordance with these reasons.
[16]
The parties have had the opportunity to raise a
serious question of general importance as contemplated by paragraph 74(d)
of the Act and have not done so. I am satisfied that no serious question of
general importance arises on this record. I do not propose to certify a
question.
ORDER
THIS COURT ORDERS that:
1. The application for
judicial review is allowed.
2. The matter is returned for reconsideration
before a differently constituted panel of the Immigration and Refugee Board in
accordance with these reasons.
3. No serious question of general importance is certified.
“Edmond
P. Blanchard”
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