Docket: IMM-2229-13
Citation:
2014 FC 1159
Ottawa, Ontario, December 2, 2014
PRESENT: The
Honourable Mr. Justice O'Keefe
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BETWEEN:
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SEBASTIAN MAGHANOY NOTARIO
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND JUDGMENT
[1]The Refugee Protection Division of the Immigration and Refugee Board
of Canada (the Board) refused the applicant’s request for protection because it
found that he was excluded by section 98 of the Immigration and Refugee
Protection Act, SC 2001, c 27 [the Act]. The applicant now seeks judicial
review of that decision pursuant to subsection 72(1) of the Act. He asks for an
order setting aside the Board’s decision and returning the matter to another
panel for redetermination.
I.
Background
[2]Sebastian Maghanoy Notario (the applicant) is a citizen of the Philippines. He lived in the United Arab Emirates (UAE) for a time, but left after he lost
his job. On June 20, 2008, he came to Canada under the live-in caregiver
program, but allegedly discovered upon arrival that no employer was waiting for
him.
[3]He eventually defaulted on a loan from a bank in the United Arab Emirates, which led to a criminal conviction in that country. On February 21,
2012, an inadmissibility report was issued against him and the Immigration
Division of the Board ordered him deported on May 1, 2012, declaring that subsection
41(a) and paragraph 36(1)(b) of the Act both rendered him inadmissible to Canada. This Court denied the applicant leave to apply for judicial review of that decision
on September 13, 2012 (see Notario v Canada (Minister of Citizenship and
Immigration) (13 September 2012), File IMM-4842-12 (FC)).
[4]Meanwhile, he had applied for Canada’s protection on March 2, 2012, claiming
that he feared that corrupt officials in the Philippines would send him to
torture or death in the United Arab Emirates. The Minister intervened, arguing
that the applicant should be excluded from protection for serious non-political
criminality pursuant to section 98 of the Act.
II.
Decision Under Review
[5]The applicant’s claim was refused by
decision dated March 12, 2013. The Board agreed with the Minister that section
98 of the Act and Article 1F(b) of the Convention Relating to the Status of
Refugees, 28 July 1951, 189 UNTS 150 (the Convention), excluded the
applicant.
[6]The Board found that the relevant facts were these:
The claimant obtained a bank loan from the
Emirates Bank and used the proceeds to pay off another loan at a different bank
and then used the balance to build a house in the Philippines. He made seven or
eight monthly payments as required. He then lost his job and, as his visa was
related to his work, he had to leave the UAE. From this point on, he did not
make any payments or contact the bank. The bank sent numerous emails asking
what he was planning to do about missing payments, warning him they would
finally realize the security cheque. When the cheque was dishonoured, they
again warned him to pay the balance or they would take legal action and inform
authorities, as well as sending the amount owing out for collection. He failed
to respond and actions were taken including charges in the court resulting in
his conviction in absentia.
[7]The cheque to which the Board referred was a blank one given as security
for the loan. The applicant was convicted for “uttering
in bad faith a dud cheque”. The Board accepted a warrant as proof of
that crime, so the question was whether it was serious enough to meet the test
set out in Jayasekara v Canada (Minister of Citizenship and Immigration),
2008 FCA 404, [2009] 4 FCR 164 [Jayasekara].
[8]The Board decided that it was. The Board held that the offence was
sufficiently similar to the offence of fraud that it could be prosecuted in Canada under paragraph 380(1)(a) of the Criminal Code, RSC 1985, c C-46. The maximum
penalty for that is 14 years, so the Board held that it was serious. The Board
said that this was reinforced by the evidence submitted to the Immigration
Division for his admissibility hearing.
[9]The applicant had not challenged the facts sustaining the
conviction, so the Board assigned little weight to the fact that he was
convicted without being present. As well, the Board said that a sentence of 18
months’ imprisonment was within acceptable international standards. The Board
also considered the applicant’s avoidance of the bank’s correspondence an
aggravating factor.
[10]
The Board apparently accepted the applicant’s
submission that this could have been a civil matter in Canada, but said that a substantial loan would have been secured differently here. It was a crime in
Abu Dhabi and the Board found that was enough.
[11]
Consequently, there were serious reasons to
consider that the applicant had committed a serious non-political crime, so the
Board decided that he was excluded from protection by section 98 of the Act.
III.
Issues
[12]
This case raises the following issues:
A.
What is the standard of review?
B.
Was the process unfair?
C.
Did the Board misunderstand the test?
D.
Did the Board err with respect to the lawyer’s
letter?
E.
Was the Board’s decision unreasonable?
F.
Does this case raise any serious question of
general importance?
IV.
Applicant’s Written Submissions
[13]
The applicant initially wrote his own memorandum
of fact and law. His criticisms boiled down to two: (1) the Board ignored a
letter from a lawyer saying that the applicant’s conduct would not be a crime
in Canada because the element of intention was absent; and (2) the Board’s
assessment of the seriousness of the offence was “truly minimal” and it failed
to consider things like the applicant’s lack of dangerousness and the brevity
of the sentence actually imposed. The applicant also implied that these errors
gave rise to a reasonable apprehension of bias by citing Janjua v Canada (Minister of Citizenship and Immigration), 2005 FC 1521 at paragraph 8,
51 Imm LR (3d) 239.
[14]
The applicant’s further memorandum was drafted
by counsel. In it, he fleshes out those arguments and adds a few more.
[15]
First, he criticizes the Board for simply
stating, without any analysis, that subsection 380(1) of the Criminal Code
was “sufficiently similar to the crime that it could be
used to prosecute for the same offence in Canada”. The applicant says
this violated the Board’s duty to provide reasons.
[16]
Second, the applicant says the Board applied the
wrong test. Either a crime is equivalent or it is not; there is no such thing
as “sufficiently equivalent”. The Board here fails to even identify the crime
in the United Arab Emirates, let alone assess why it is equivalent to any
offence in Canada. The statute under which the applicant was convicted was
about issuing a cheque in bad faith without a sufficient balance, which has no
analogue in subsection 380(1) of the Criminal Code.
[17]
Third, this was a loan transaction and the bank
knew he did not have the money. It asked for a blank cheque to secure it, so he
never represented that he did. There is no fraud that could support a
conviction under section 380 of the Criminal Code and the applicant says
the Board erred by ignoring that. At the hearing, the applicant also argued that
a cheque issued in these circumstances would not even be considered a bill of
exchange in Canada under subsection 16(1) of the Bills of Exchange Act,
RSC 1985, c B-4.
[18]
Fourth, the applicant is critical of the Board’s
assessment of seriousness. In his view, the Board: (1) never analyzed the mode
of prosecution or acknowledged that it was tried in absentia; (2) stated
that a sentence of 18 months did not violate “international standards” but
never explained what those standards were; (3) simply recited the facts without
analyzing them; and (4) acknowledged that default on a loan was a civil matter
in Canada but still treated it as a crime. The applicant also says that this
last issue makes the reasons incomprehensible and self-contradictory.
[19]
Fifth, the applicant again criticizes the Board
for ignoring the lawyer’s letter opining that the applicant’s conduct would not
be criminal in Canada.
V.
Respondent’s Written Submissions
[20]
In its original memorandum, the respondent says
that the Board’s interpretation of section 98 of the Act and Article 1F of the Convention
were questions of law attracting a standard of correctness. However,
reasonableness was the standard for how the Board applied that law to the
facts. In its further memorandum and at the hearing, the respondent maintains
that this case only raises the latter type of issue and the reasonableness
standard should be applied.
[21]
First, it says that the applicant does not
require international protection. He fears mistreatment in the United Arab Emirates, but he would only be removed to the Philippines. There is no evidence that
anyone there would send him to the United Arab Emirates, so the respondent
submits that the applicant has not established any fear in his country of
origin.
[22]
Second, the respondent submits that the Board
did not ignore the letter from the lawyer. The applicant made only passing
reference to it in his submissions, so the Board cannot be faulted for treating
it the same way. According to the respondent, the Board fully considered the
submission that this would be a civil matter in Canada but found that the fact
it was a crime in Abu Dhabi required the treatment of a similar offence here.
[23]
The respondent also argues that the letter was
irrelevant anyway for three reasons: (1) it dealt with whether the applicant’s
actions could have supported a charge under section 362 of the Criminal Code,
while the Board’s task was to consider whether the applicant was excluded by
section 98 of the Act; (2) it assumed the absence of mens rea and the
circumstances of the offence, which were matters for the Board to assess as the
trier of fact; and (3) the general rule that expert evidence on Canadian law is
inadmissible should be extended to the Board (see Eco-Zone Engineering Ltd v
Grand Falls – Windsor (Town), 2000 NFCA 21 at paragraphs 15 and 16, 5 CLR
(3d) 55 [Eco-Zone]).
[24]
Third, the respondent says that no reasonable
apprehension of bias arises. The applicant relies on mere conjecture to argue
the opposite.
[25]
Fourth, the respondent argues that the Board
reasonably assessed the factors in Jayasekara. The Board was not
required to consider the applicant’s current dangerousness or his “non-criminal
character” since only the circumstances surrounding the commission of the
offence are relevant. Beyond that, the applicant only takes issue with how the
Board weighed the evidence, but that was a task for the Board which it
conducted reasonably. Further, the respondent argues that adequacy of reasons
is not a stand alone basis for review and that the reasons in this case meet the
standard set out in Newfoundland and Labrador Nurses’ Union v Newfoundland
and Labrador (Treasury Board), 2011 SCC 62 at paragraph 16, [2011] 3 SCR
708 [Newfoundland Nurses].
VI.
Analysis and Decision
A.
Issue 1 - What is the standard of review?
[26]
Where the jurisprudence has satisfactorily
resolved the standard of review, that analysis need not be repeated (see Dunsmuir
v New Brunswick, 2008 SCC 9 at paragraph 62, [2008] 1 S.C.R. 190 [Dunsmuir]).
[27]
Issues of procedural fairness are nominally
reviewed on the correctness standard (see Mission Institution v Khela,
2014 SCC 24 at paragraph 79, 455 NR 279). It is for the court to determine
whether the process was fair in the circumstances, though relief may be
withheld if any error is “purely technical and
occasions no substantial wrong or miscarriage of justice”
(see Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at
paragraph 43, [2009] 1 S.C.R. 339 [Khosa]; Federal Courts Act, RSC 1985, c
F-7, paragraph 18.1(5)(a)).
[28]
Section 98 of the Act incorporates into it Articles
1E and 1F of the Convention. In Febles v Canada (Minister of
Citizenship and Immigration), 2012 FCA 324 at paragraphs 24 and 25, 357 DLR
(4th) 343 [Febles], the Federal Court of Appeal held that correctness
should be the standard of review for interpreting those articles since
international conventions should be applied as uniformly as possible.
[29]
However, I agree with the respondent that
deciding whether the facts satisfy the legal test is a question of mixed fact
and law. Consequently, it should attract the reasonableness standard of review
(see Feimi v Canada (Minister of Citizenship and Immigration), 2012 FCA
325 at paragraph 16, 353 DLR (4th) 536 [Feimi]; Dunsmuir at
paragraph 53). That means that I should not intervene on these issues if the
Board’s decision is transparent, justifiable, intelligible and within the range
of acceptable outcomes (Dunsmuir at paragraph 47). Put another way, I
will set aside the Board’s decision only if I cannot understand why it reached
its conclusions or how the facts and applicable law support the outcome (Newfoundland
Nurses at paragraph 16). As the Supreme Court held in Khosa at
paragraphs 59 and 61, a court reviewing for reasonableness cannot substitute
its own view of a preferable outcome, nor can it reweigh the evidence.
B.
Issue 2 - Was the process unfair?
[30]
The applicant alleges three violations of
procedural fairness. Originally, he implied that the Board appeared to be
biased because it ignored evidence. In his further memorandum, he argues that
the Board failed to provide reasons because its reasons were opaque and hard to
understand. He also argues that the Board “denied the
Applicant the right to counsel, by failing to consider the evidence coupled
with the argument that if it is a civil matter in Canada, there is no crime”
(applicant’s further memorandum at paragraph 46).
[31]
None of these arguments have merit.
[32]
First, administrative decisions can be set aside
for a reasonable apprehension of bias (see Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at paragraphs 46 and
47, 174 DLR (4th) 193), but it requires more than mere suspicion (see R v RDS,
[1997] 3 S.C.R. 484 at paragraph 112, 151 DLR (4th) 193). Even if the applicant’s
complaints about the content of the decision are justified, that hardly proves
that the Board was biased.
[33]
Second, a duty to give reasons is discharged
once any reasons are given. The quality of those reasons is not a question of
procedural fairness (Newfoundland Nurses at paragraphs 20 and 21). To
the extent that Guerrero v Canada (Minister of Citizenship and Immigration),
2010 FC 384 at paragraph 33, 88 Imm LR (3d) 258, says otherwise, it is no
longer good law.
[34]
Third, the Board did not violate the applicant’s
right to counsel by rejecting his counsel’s arguments. If the Board ignored
evidence or erred in law, those are separate grounds for review under
subsection 18.1(4) of the Federal Courts Act.
C.
Issue 3 - Did the Board misunderstand the test?
[35]
At the hearing, the applicant submitted that a
finding that the conduct was criminal in Canada is a condition precedent to
exclusion under section 98 and so the Board erred by saying that the warrant
and conviction were “more than sufficient proof that [the
applicant] committed a non-political crime”.
[36]
I disagree. Section 98 of the Act says that “[a] person referred to in section E or F of Article 1 of the
Refugee is not a Convention refugee or a person in need of protection.” Article
1F(b) is the relevant paragraph in this case and it says the following:
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Article 1
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Article premier
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F. The provisions of this Convention shall not apply to any person
with respect to whom there are serious reasons for considering that:
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F. Les dispositions de cette Convention ne seront pas applicables
aux personnes dont on aura des raisons sérieuses de penser :
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…
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…
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(b) He has committed a serious non-political crime outside the
country of refuge prior to his admission to that country as a refugee;
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b ) Qu'elles ont commis un crime grave de droit commun en dehors
du pays d'accueil avant d'y être admises comme réfugiés;
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[37]
In Zrig v Canada (Minister of Citizenship and
Immgration), 2003 FCA 178 at paragraph 118, [2003] 3 FC 761, Mr. Justice
Robert Décary identified the objectives of this provision:
…the purpose of this section is to reconcile
various objectives which I would summarize as follows: ensuring that the
perpetrators of international crimes or acts contrary to certain international
standards will be unable to claim the right of asylum; ensuring that the
perpetrators of ordinary crimes committed for fundamentally political purposes
can find refuge in a foreign country; ensuring that the right of asylum is
not used by the perpetrators of serious ordinary crimes in order to escape the
ordinary course of local justice; and ensuring that the country of refuge
can protect its own people by closing its borders to criminals whom it regards
as undesirable because of the seriousness of the ordinary crimes which it
suspects such criminals of having committed.
[Emphasis added]
[38]
Elaborating on that third objective, Justice Décary
went on to say at paragraph 119 that “the signatories did
not wish the right of asylum to be transformed into a guarantee of impunity for
ordinary criminals whose real fear was not being persecuted, but being tried,
by the countries they were seeking to escape.”
[39]
That objective is not advanced by a strict
requirement that the country of refuge must have criminalized the conduct of
which the claimant was convicted. Rather, as acknowledged by the Federal Court
of Appeal in Jayasekara at paragraph 37, the gravity of a crime must be
judged against international standards. Although there may be some foreign laws
that are so unjust as to be intolerable, there are also some social issues that
different countries could legitimately tackle in different ways. In the interests
of international comity, Article 1F may at times require a potential country of
refuge to deny asylum to ordinary criminals who wilfully broke another
country’s laws, even if the country of refuge does not prosecute its own
citizens for the same conduct.
[40]
Therefore, there is no hard and fast rule that
the conduct must be criminal in the potential country of refuge. However, “the perspective of the receiving state or nation cannot be
ignored in determining the seriousness of the crime” (Jayasekara
at paragraph 43 (emphasis added)). That is where the Board conducted its
equivalency analysis and that was no error.
[41]
The applicant also takes issue with the Board’s
comparison between the laws in the United Arab Emirates and Canada. He says the Board’s finding that the relevant provisions were “sufficiently
equivalent” was meaningless since this is a contradiction in terms.
[42]
In fact, the Board never said that anything was
“sufficiently equivalent.” Rather, it said that paragraph 380(1)(a) of the Criminal
Code was sufficiently similar to the offence for which the applicant was
convicted that it could be used to prosecute the same conduct in Canada. Although I will assess the reasonableness of that later, this does not suggest an
error regarding the test.
[43]
However, another passage causes me to doubt
whether the Board correctly understood the test under section 98 of the Act.
[44]
In essence, that test requires the Minister to
prove that there are serious reasons for considering that a claimant committed
a serious non-political crime (see Lai v Canada (Minister of Citizenship and
Immigration), 2005 FCA 125 at paragraphs 23 and 34, 253 DLR (4th) 606). In
doing so, the Minister can benefit from a presumption that a particular crime
is serious if the conduct underlying it is an offence in Canada punishable by a
maximum term of imprisonment of at least ten years (Feimi at paragraph
31; Jayasekara at paragraphs 40 and 44). However, that presumption can
be rebutted after examining the circumstances of the offence, including the
following four factors: (1) the elements of the crime; (2) the mode of
prosecution; (3) the penalty prescribed; and (4) the facts and the mitigating
and aggravating circumstances underlying the conviction (Jayasekara at
paragraph 44).
[45]
When applying the test in this case though, the
Board spoke as if it did not appreciate that the presumption created by an
equivalent offence in Canada could be rebutted. Before ever addressing the
factors upon which the test truly rests, the Board stated the following:
I find that this provision [paragraph
380(1)(a)] of the Criminal Code is sufficiently similar to the crime that it
could be used to prosecute for the same offence in Canada, and therefore I
find the crime committed is serious within the meaning of Article 1F(b).
[Emphasis added]
[46]
That said, the Board correctly assigned primary
importance to the factors at paragraph 9 of its decision and did go on to
consider them. If it had actually made the mistake implied by the emphasized
statement above, then it would not have bothered. Therefore, I accept that this
was simply a misstatement and not a misunderstanding. Moreover, it did not
conclude that any of the factors favoured the applicant, so its analysis would
not have disturbed the presumption anyway. It is therefore necessary to go on
to consider the reasonableness of the decision.
D.
Issue 4 - Did the Board err with respect to the
lawyer’s letter?
[47]
Before getting to the substance of the decision,
there are a few issues surrounding a letter by Mr. Rovan opining that the applicant’s
conduct would not have attracted criminal sanctions in Canada.
[48]
The respondent argues that this letter should
not have been admitted by the Board because it purported to be expert evidence
on domestic law. Therefore, the respondent submits that the Board’s failure to
mention it could not be problematic.
[49]
I disagree. Expert evidence on domestic law in
court is inadmissible because a court has the expertise and the responsibility
to answer those legal questions (Eco-Zone at paragraph 15; Brandon (City) v Canada, 2010 FCA 244 at paragraph 27, 411 NR 189). The
Refugee Protection Division on the other hand, is not generally responsible for
deciding what the elements of any particular crime are and expert evidence
could be useful. Further, paragraphs 170(g) and 170(h) of the Act relax the
rules of evidence for the Refugee Protection Division, with paragraph 170(g)
saying that it “is not bound by any legal or technical
rules of evidence”. It should not be saddled with an obligation to
exclude evidence that it may well want to see.
[50]
Therefore, in the absence of any decision by the
Board to exclude this evidence, I see no reason to infer that it was dismissed
for the reasons proposed by the respondent.
[51]
The applicant complains that the Board made a
different error with respect to Mr. Rovan’s letter. He argues that it was the
only evidence on whether his conduct would be criminal in Canada, which made it an error for the Board not to mention it.
[52]
Although the Board is presumed to have
considered all the evidence before it, a court can sometimes infer that
important evidence was overlooked if it squarely contradicts the Board’s
findings of fact and yet was never mentioned in the reasons (see Hinzman v
Canada (Minister of Citizenship and Immigration), 2010 FCA 177 at paragraph
38, [2012] 1 FCR 257, citing Cepeda-Gutierrez v Canada (Minister of
Citizenship and Immigration), [1998] FCJ No 1425 (QL) at paragraph 17, 157
FTR 35; Federal Courts Act, RSC 1985, c F-7, paraagraph 18.1(4)(d)).
[53]
I do not make that inference here. The letter
from Mr. Rovan assessed only whether the applicant’s conduct would be an
offence under section 362 of the Criminal Code. The provision that
really mattered was paragraph 380(1)(a). For that reason, the letter was not
important enough to infer that it was overlooked.
E.
Issue 5 - Was the Board’s decision unreasonable?
[54]
The Board found that the provision under which
the applicant was convicted was similar enough to paragraph 380(1)(a) of the Criminal
Code to engage the presumption that it was a serious crime.
[55]
As mentioned earlier, this presumption was
described by the Federal Court of Appeal in Jayasekara by analogy to
inadmissibility for serious criminality (Jayasekara at paragraph 40).
That typically requires an assessment of whether the conduct for which the
applicant was convicted could have been prosecuted in Canada and potentially
attract a sentence of more than 10 years (see Brannson v Canada (Minister of
Employment and Immigration) (1980), [1981] 2 FC 141 at paragraph 4, 34 NR
411 (FCA); Vlad v Canada (Minister of Citizenship and Immigration), 2007
FC 172 at paragraph 22).
[56]
In Hill v Canada (Minister of Employment and
Immigration) (1987), 73 NR 315, 1 Imm LR (2d) 1 (FCA), the Court of Appeal
explained the ways in which this could be shown:
[E]quivalency can be determined in 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.
[57]
Although such an equivalency analysis need not
always be conducted to exclude someone under section 98, the presumption cannot
be engaged unless it is applied correctly (see Sanchez v Canada (Minister of
Citizenship and Immigration), 2012 FC 1130 at paragraphs 39, 40 and 49,
[2012] FCJ No 1215 [Sanchez]; Raina v Canada (Minister of Citizenship
and Immigration), 2011 FC 19 at paragraph 7, 382 FTR 135).
[58]
Here, the Board did rely on the presumption, but
did not explain very well why it did so. Rather, the Board went no further than
citing the Criminal Code provision and incorrectly identifying the
relevant provision in the United Arab Emirates as Article 104/1. It then said
that they are “sufficiently similar” and that the crime was therefore serious.
[59]
This is a problem. The Board did not analyze
either provision or explain how they share the same essential elements. Article
401 of the Penal Code in the United Arab Emirates provides the following:
Detention or a fine shall be imposed upon
anyone who, in bad faith, gives a draft (cheque) without a sufficient and
drawable balance or who, after giving a cheque, withdraws all or part of the
balance, making the balance insufficient for settlement of the cheque, or if he
orders a drawee not to cash a cheque or makes or signs the cheque in a manner
that prevents it from being cashed.
The same penalty shall apply to any one who
endorses a cheque in favor of another or gives him a bearer draft, knowing that
there is no sufficient balance to honor the cheque or that it is not drawable.
[60]
Paragraph 380(1)(a) of the Criminal Code
says the following:
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380. (1) Every one who, by deceit, falsehood or other fraudulent
means, whether or not it is a false pretence within the meaning of this Act,
defrauds the public or any person, whether ascertained or not, of any
property, money or valuable security or any service,
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380. (1) Quiconque, par supercherie, mensonge ou autre moyen
dolosif, constituant ou non un faux semblant au sens de la présente loi,
frustre le public ou toute personne, déterminée ou non, de quelque bien,
service, argent ou valeur :
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(a) is guilty of an indictable offence and liable to a term of
imprisonment not exceeding fourteen years, where the subject-matter of the
offence is a testamentary instrument or the value of the subject-matter of
the offence exceeds five thousand dollars; or
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a) est coupable d’un acte criminel et passible d’un emprisonnement
maximal de quatorze ans, si l’objet de l’infraction est un titre
testamentaire ou si la valeur de l’objet de l’infraction dépasse cinq mille
dollars;
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[61]
To seize on just one of many obvious differences,
it is unclear to me what “bad faith” might mean in the United Arab Emirates or whether it is analogous to “deceit, falsehood
or other fraudulent means”.
[62]
Moreover, foreign law should typically be established
by expert evidence (see Allen v Hay (1922), 64 SCR 76 at 80 and 81, 69
DLR 193, per Duff J). Although that requirement does not always apply in an
administrative context (see Qi v Canada (Citizenship and Immigration),
2009 FC 195 at paragraphs 24 to 26, [2009] 4 FCR 510), such evidence was recommended
for an equivalency analysis by the Federal Court of Appeal in Hill. None
was provided in this case, so nothing in the record could bolster the Board’s
finding that these two provisions capture the same conduct.
[63]
As such, the Board could only rely on the
applicant’s actual conduct to assess whether he could have been convicted under
paragraph 380(1)(a), but that analysis does not appear to have been conducted
at all.
[64]
That said, the respondent argued at the hearing
that the applicant could not really challenge the Board’s equivalency analysis
since that was already the subject of the applicant’s hearing before the
Immigration Division. There, the Immigration Division conducted an extensive
equivalency analysis at paragraphs 30 to 56 and the applicant was denied leave
to apply for judicial review. The respondent says that decision should be
treated as final and dispositive of the equivalency issue.
[65]
However, the Board never expressly adopted the
reasons given by the Immigration Division. Rather, the Board said that its
finding of similarity was merely “reinforced by the
evidence the Minister submitted in the decision of the Immigration Division
of May 1, 2012” (emphasis added). The Board did not consider the issue
resolved by the admissibility hearing, so it is unnecessary to consider whether
the Board could have applied issue estoppel had it wanted to.
[66]
Moreover, even when the pre-conditions for issue
estoppel are met, courts can choose whether or not to apply it (see Danyluk
v Ainsworth Technologies Inc, 2001 SCC 44 at paragraph 33, [2001] 2 SCR
460). The Board would have the same discretion and its choice to conduct an
independent analysis should therefore be respected.
[67]
Even if I accepted that the Board implicitly
endorsed the reasons given by the Immigration Division, its decision was
unreasonable.
[68]
The Board found as a fact that the basis for the
conviction was a loan transaction. The applicant originally made payments
faithfully, but lost his job and had to leave the United Arab Emirates. After
that, he could not find any other employment and so defaulted on the loan.
[69]
The Board accepted that this would not be a
criminal offence in Canada. It said the following at paragraph 20 of its
decision:
Counsel submitted that the default should be
seen as a civil not a criminal matter and that in Canada it would be treated
that way, and is therefore a mitigating factor. While that may be the case
in Canada, I find a substantial loan would have been secured differently.
[Emphasis added]
[70]
However, the loan could not have been secured in
a way that would make innocent default fraudulent under paragraph 380(1)(a) of
the Criminal Code. Therefore, this contradicted the Board’s earlier
finding that the applicant could have been prosecuted for his impugned conduct
in Canada.
[71]
The Board’s decision is therefore
unintelligible. Having found that the applicant could not have been convicted
for his conduct in Canada, the Board could not simultaneously presume that the
offence was serious because he could have been convicted. Yet it did.
[72]
The entire decision is thereby tainted since the
Board had already applied the presumption of seriousness when assessing the
other factors. By doing so, it had put the burden on the applicant to prove
that the “offence” was not serious. With that in mind, many of its other
findings also become unreasonable.
[73]
For instance, the Board said that the penalty of
18 months’ incarceration was “not in violation of
accepted international standards.” However, there was no evidence that
defaulting on a loan is a crime in any other countries, let alone what
penalties might be imposed for it. Since the burden of proof should have still
been on the Minister if subsection 380(1)(a) of the Criminal Code was
not an equivalent offence, this finding was made without any evidence to
support it. Further, while the length of the sentence actually imposed is not
always pertinent (Jayasekara at paragraph 41), it is strange that the
Board only assessed whether the sentence was severe by international norms and
not whether 18 months was a long enough sentence to indicate that the applicant’s
actual conduct was serious.
[74]
For all those reasons, the Board’s decision was
unreasonable.
[75]
Of course, the respondent also argues that the
Board could have reasonably found that the applicant did not fear persecution
in his country of origin. However, the Board never actually assessed the merits
of the applicant’s claim since its finding on exclusion was determinative.
Ultimately, Parliament gave to the Board the power to decide the applicant’s
claim and I cannot usurp that power merely because the Board made a mistake on
some other issue. As such, the decision cannot be upheld simply because the
outcome might have been reasonable if it was arrived at by a different path (see
Alberta (Information and Privacy Commissioner) v Alberta Teachers’
Association, 2011 SCC 61 at paragraph 54, [2011] 3 S.C.R. 654; JMSL v
Canada (Citizenship and Immigration), 2014 FCA 114 at paragraph 37, [2014]
FCJ No 439).
F.
Issue 6 - Does this case raise any serious
question of general importance?
[76]
In Zhang v Canada (Citizenship and
Immigration), 2013 FCA 168 at paragraph 9, 446 NR 382, the Federal Court of
Appeal said that a question cannot be certified unless it would be (1) “dispositive of the appeal and (2) transcend the interests of
the immediate parties to the litigation, as well as contemplate issues of broad
significance or general importance.”
[77]
After the hearing in this case, the applicant
proposed the following question for certification:
If the Immigration Division made an earlier
decision regarding the Applicant and the IRB has to deal with the same issue,
is the IRB bound by the Immigration Division’s findings and decision,
particularly if the federal court has denied leave on the Immigration
Division’s matter?
[78]
The respondent opposed certification, arguing
that this question was neither dispositive nor important.
[79]
I agree that it is not dispositive of this case.
The Refugee Protection Division conducted its own equivalency analysis. At
most, it approved of the Immigration Division’s reasons, but there is no
indication that it considered itself bound by them. Consequently, this question
does not arise on the facts of this case and I will not certify the proposed
question.
[80]
I would therefore allow the application for
judicial review and return the matter to another panel of the Board for redetermination.
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