Docket: IMM-1431-16
Citation:
2016 FC 1295
[ENGLISH
TRANSLATION]
Ottawa, Ontario, November 24, 2016
PRESENT: The Honourable Madame Justice Gagné
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BETWEEN:
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WILFRID NGUESSO
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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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AMENDED
JUDGMENT AND REASONS
I.
Overview
[1]
Wilfrid Nguesso is challenging the decision of
an immigration officer with the Immigration Division of the Canadian Embassy in
Paris, in which she found that he was inadmissible to Canada because he was a
member of a criminal organization, within the meaning of
paragraph 37(1)(a) of the Immigration and Refugee Protection Act,
S.C. 2001, c. 27 (IRPA).
[2]
This is a second decision by the immigration
officer. The first was successfully challenged by the applicant before this
Court. For the reasons outlined in Court File 2015 FC 879, Madam Justice Bédard
allowed the applicant’s application for judicial review and found that the
officer’s first decision was unreasonable. According to the judge, the officer
failed to identify the criminal organization to which the applicant belonged
and to associate the alleged activities with criminal offences recognized in
Canadian law. She therefore set aside the officer’s first decision and referred
the matter back to her to identify “the Canadian offences at issue and their
essential elements and an assessment of the evidence in light of these elements
to determine whether she has reasonable grounds to believe that the applicant
should be declared inadmissible on grounds of organized
criminality.”
[3]
Bédard J. certified the following two questions:
(a)
In the context of a declaration of
inadmissibility under paragraph 37(1)(a) of the IRPA, is it necessary to
identify the applicable criminal organization?
(b)
At paragraph 37(1)(a) of the IRPA, does the
expression “or in furtherance of the commission of an offence outside Canada
that, if committed in Canada, would constitute such an offence” require the
identification of the provisions of a federal law that are related to an
offence punishable by indictment, the identification of the constituent
elements of the offence under Canadian law and the proof of the constituent
elements of the offence?
[4]
The respondent did not appeal this judgment and
the officer therefore rendered a new decision. That decision is the subject of
this application.
[5]
Since I am of the view that the immigration
officer did not repeat the errors identified by Bédard J. and that she made a
reasonable decision defensible in respect of the facts and law, the application
for judicial review will be rejected.
II.
Facts
A.
History
[6]
The applicant is a citizen of the Republic of
the Congo (Congo), commonly known as Congo-Brazzaville, and is the son of
President Denis Sassou-Nguesso (DSN).
[7]
He studied in the Congo but did not obtain a
high school diploma. He subsequently studied in France at an international
aircraft piloting school, where he obtained a licence. From 1986 to 1992, he
worked as a pilot in the Congo and, from 1992, he lived in Gabon with his
sister, the wife of the Gabonese president.
[8]
In 1989, the Congolese government created the
Société Congolaise de Transports Maritimes (Socotram), a national shipping
company whose main objective is to develop a national shipping fleet. The
Congolese government then held 45% of Socotram’s capital stock. The balance was
held by two private companies; SAGA, which held 49% of the shares and ELF
Congo, which held 6%. In 1998, shortly after DSN had returned to power, the
Congolese government granted Socotram the right to appropriate at least 40% of
the marine traffic rights generated by foreign trade to and from the Congo.
[9]
The applicant then incorporated WGN Trading and
Shipping Négoce-International SA (TS) and registered it in Liechtenstein. TS
purchased all of the Socotram shares held by SAGA and ELF Congo, and the
applicant, through his private company, became the majority private
shareholder. He was appointed Director of Transportation.
[10]
In 2004, TS sold all of its Socotram shares to
the Guinéa Gulf Shipping Company SA, and the applicant was appointed Chief
Executive Officer (CEO) of the company. He has held this position since June
2005.
[11]
The applicant has been married to a Canadian
citizen since 1999, with whom he has seven children, all Canadian citizens. The
applicant’s wife and her seven children have lived in Montréal since 2006. On
December 27, 2006, the applicant filed a family class application for permanent
residence.
[12]
In reviewing this application, the Immigration
Division conducted routine checks with the war crimes and organized crime
sections of the Canada Border Services Agency (CBSA) regarding the applicant’s
activities or associations. In April 2008, a representative of the CBSA’s
Organized Crime Section informed the Immigration Division that he had major
concerns about the origin of the applicant’s income and his property assets.
[13]
The applicant was therefore required to provide
a number of documents and information, which he did in August 2008.
[14]
In January 2009, the Financial Transactions and
Reports Analysis Centre of Canada issued a report on several electronic fund
transfers involving the applicant.
[15]
Despite the information obtained, concerns
expressed and the relationship between the applicant and DSN, a representative
of the CBSA’s Organized Crime Section expressed the view that there was
insufficient evidence that the applicant had committed one or more criminal
offences abroad, or was a member of a criminal organization. The applicant’s
case was still being studied by the CBSA’s Organized Crime Section, although it
was inactive from October 2009 to March 2011.
[16]
On September 5, 2012, the Immigration Division
sent the applicant a “fairness letter” to advise him of the concerns about him.
The letter mentioned that he might not be admissible due to organized
criminality under paragraph 37(1)(a) of the IRPA. The Division’s concerns
involved: (i) the applicant’s education and professional experience in relation
to his career progression; and (ii) alleged appropriation of proceeds from the
sale of petroleum products by the Congo.
[17]
The applicant was summoned to an interview to
answer the Immigration Division’s questions regarding these matters. The
interview lasted approximately 4 hours and the applicant answered about 170
questions.
[18]
Following this interview, the Immigration
Division sent the applicant another letter informing him of concerns about: (i)
his income; (ii) the companies in which he previously or still held shares;
(iii) the nature of his contract of employment; and (iv) generally, the success
of his businesses. The Division again requested that he provide a number of
documents and information.
[19]
In a report issued on November 1, 2012, the CBSA
found that, despite the applicant’s suspected embezzlement and money laundering
activities, there was not enough evidence to conclude that there were
“reasonable grounds to believe” that the applicant would be inadmissible on
grounds of organized criminality within the meaning of paragraph 37(1)(a)
of the IRPA.
[20]
On December 20, 2013, the applicant’s
application for permanent residence was rejected and he was declared
inadmissible on grounds of organized criminality.
B.
The immigration officer’s first decision
[21]
In her first decision, the officer concluded
that she had reasonable grounds to believe that the applicant had been involved
in criminal activities (embezzlement, misappropriation of company property and
money laundering) that were supported by a structured and deliberate plan. She
was of the view that the applicant had participated directly, knowingly and
repeatedly in these activities and financial arrangements, such that he was
inadmissible, and his application for permanent residence had to be rejected.
C.
Judgment of the Federal Court
[22]
Because it found that the officer had erred in
law by: (i) failing to identify the criminal organization at issue; and (ii)
failing to identify the offences under Canadian federal law at issue along with
their essential elements, the applicant’s application for judicial review was
allowed, and the matter was returned for a new determination. The applicant’s
other arguments, including those alleging a breach of procedural fairness, were
all dismissed.
III.
Impugned decision
[23]
The immigration officer’s second decision,
rendered on February 18, 2016, identified the criminal organization at issue,
as well as the related criminal offences under Canadian law, including their
constituent elements. After having reviewed the case, she again found that the
applicant did not meet the requirements of the IRPA and was inadmissible to
Canada under paragraph 37(1)(a).
[24]
The officer listed a number of factors in
support of her refusal: (i) the existence of an organization; (ii) whose
activities are described in section 37 of the IRPA; (iii) the commission
of offences under a Canadian federal law; and (iv) the applicant’s involvement
and participation as a member in that organization.
A.
Existence of an organization
[25]
The officer found that she had reasonable
grounds to believe that the applicant was at the centre of an organization
consisting of two groups over which he exercised control. The first group was
located in the Congo and was composed of DSN, the applicant and Socotram, or
rather its board of directors. A second group operated in Luxembourg. It was
composed of companies and complex legal structures, for the benefit of the
applicant, which were supervised by Alain Sereyjol-Garros (Garros). She also
found that the members of the organization were bound by friendly or family
relationships.
B.
Whose activities are described in
section 37 of the IRPA
[26]
Regarding the existence of criminal activities
as described in section 37 of the IRPA, the officer noted that this
criterion required the existence of a pattern of criminal activity planned and
implemented by persons acting in concert. According to the officer, the context
in which the applicant was appointed Director of Transportation and then CEO of
Socotram, the Congolese government’s transfer of 40% of maritime rights to
Socotram and the tax exemptions granted to Socotram were all part of a
deliberate plan whose main objective was the personal enrichment of the applicant.
[27]
The officer found that she had reasonable
grounds to believe that by holding 55% of Socotram’s shares, the applicant was
able to pay himself excessive compensation and perks in violation of Socotram’s
rights.
[28]
Also, although it had received hundreds of millions
of dollars of funding from the Congolese government over the last 20 years,
through subsidies and tax exemptions, Socotram had still not succeeded in
achieving its primary corporate objective, the creation of a national maritime
fleet. The officer found that she had reasonable grounds to believe that
Socotram was being used only to provide the applicant with a very substantial
source of income to the detriment of the government.
[29]
The officer found that the excessive wages and
benefits granted by Socotram to the applicant, Socotram’s payment of rent for
an apartment owned by the applicant in Paris, the purchase of a house in
Montréal for the benefit of another company whose shareholder was the applicant
and the purchase of luxury vehicles in Canada were all indicative of
misappropriation of Socotram funds for the benefit of the applicant.
[30]
She noted that there was a pattern of criminal
activity by persons acting in concert and who, according to her, were the
directors of Socotram, DSN and Garros. She noted that the members of the
Socotram Board of Directors were all close relatives of the applicant and DSN
and that they made decisions that ran counter to the interests of the
corporation and its economic development.
C.
Commission of offences under a Canadian federal
law
[31]
The immigration officer stated that she had
reasonable grounds to believe that several of the expenses incurred by Socotram
for applicant’s benefit were fraudulent and ran counter to Socotram’s interests
and the achievement of its corporate purpose. She therefore had reasonable
grounds to believe that the applicant had committed offences under Canadian
law, pursuant to section 380 of the Criminal Code, R.S.C. 1985, c.
C-46; (ii) tax evasion under subsection 239(1) of the Income Tax Act,
R.S.C., 1985, c. 1 (5th Supp.); and (iii) laundering proceeds of crime, under
subsection 462.31(1) of the Criminal Code.
[32]
Not only was the applicant unable to explain his
successive appointments as Socotram’s CEO, but also, other than his family
ties, there was absolutely no basis for his level of income and the excessive
benefits he enjoys, given that the applicant refused to provide his employment
contract.
[33]
Section 380 of the Criminal Code
provides that “[e]very 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 … 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.” Since the
immigration officer found that she had reasonable grounds to believe that the
applicant [translation] “acted
dishonestly” to embezzle “funds, property and services of the legal entity
Socotram,” whose value exceeded five thousand Canadian dollars, he committed
fraud within the meaning of section 380 of the Criminal Code.
[34]
With respect to tax evasion, the officer noted
that it is generally defined as a violation of the law to avoid taxation or
reduce the amount of tax otherwise payable. Subsection 239(1) of the Income
Tax Act states that “every person who (a) has made, or participated in,
assented to or acquiesced in the making of, false or deceptive statements in a
return, certificate, statement or answer filed or made as required by or under
this Act or a regulation... (e) conspired with any person to commit an offence
described in paragraphs 239(1)(a) to 239(1)(d), is guilty of an offence.”
The officer drew a negative inference from the lack of evidence that the
applicant had reported his income or paid taxes in the Congo or elsewhere. She
therefore found that she had reasonable grounds to believe that the applicant
had not reported all of his income and had therefore committed the equivalent
of tax evasion under Canadian law.
[35]
Finally, the officer added that she had
reasonable grounds to believe that the corporate amounts and shares invested in
civil societies and real estate companies or trust companies located in
Luxembourg were obtained through the commission of indictable offences—namely
misappropriation of funds, which is the equivalent of laundering proceeds of
crime within the meaning of subsection 462.31 (1) of the Criminal Code.
D.
Applicant’s membership and participation
[36]
The officer found that she had reasonable
grounds to believe that the applicant was [translation]
“the instigating and active member of that organization” and that he
“participated in the pattern of criminal activity that characterized the organization.”
[37]
Since the applicant directed and controlled
operations as the CEO, the officer found that he was [translation] “highly and centrally involved in the organization.”
[38]
She said she had reasonable grounds to believe
not only that the applicant was a member of the organization, but that he was
participating in his criminal activities personally and for his own benefit.
Whereas the applicant enjoyed excessively favourable working conditions as the
CEO of Socotram, he operated through dummy corporations that were part of
complex structures located in Luxembourg in order to remain anonymous. The
officer found that the applicant was [translation]
“more than just a member of an organization,” he was “an active participant in
the scheme” and had “contributed and participated in an essential manner in
implementing the pattern and the criminal activities.”
[39]
Under these circumstances, the officer found that
the applicant was inadmissible within the meaning of paragraph 37(1)(a) of
the IRPA, given his position within an organization engaged in criminal
activities (fraud, embezzlement, tax evasion, and laundering proceeds of
crime), and his direct, [translation]
“knowing and repeated” participation in these activities, in order to enrich
himself personally.
IV.
Issues and standard of review
[40]
This application for judicial review raises the
following issues:
A.
Did the officer deprive the applicant of his
right to be heard?
B.
Did the officer raise a reasonable apprehension
of bias?
C.
Did the officer err in her interpretation of the
essential elements of section 37 of the IRPA?
[41]
The standard of review applicable in matters of
procedural fairness is correctness. More to the point, the only issue that
arises is whether the principles of procedural fairness were followed (Canada
(Citizenship and Immigration) v Khosa, 2009 SCC 12 at paragraph 43; Mission
Institution v Khela, 2014 SCC 24 at paragraph 79).
[42]
The issue of whether the evidence before the
officer was sufficient to find that there were reasonable grounds to believe
that the applicant was a member of a criminal organization referred to in
paragraph 37(1)(a) of the IRPA is, for its part, a question of mixed fact
and law subject to the standard of reasonableness (Athie v Canada (Public
Safety and Emergency Preparedness), 2016 FC 425 at paragraph 36; Nguesso
v Canada (Citizenship and Immigration), 2015 FC 879 at paragraph 61).
V.
Analysis
A.
Did the officer deprive the applicant of his
right to be heard?
[43]
The applicant argued that between her first and
second decisions, the officer substantially altered the identity of the
criminal organization at issue without notifying him and giving him an
opportunity to counter the new allegations. In doing so, the officer breached
the principles of procedural fairness. The applicant relied on the principle
illustrated in Canada (Minister of Citizenship and Immigration) v Khan,
2001 FCA 345, at paragraph 18, according to which “the duty of fairness
requires that visa applicants be given a reasonable opportunity to respond to
visa officers’ concerns before their application is denied.” He contended that the criminal organization, as
described by the officer, originally consisted of the applicant and members of
his family, whereas it now included Socotram, the members of its Board of
Directors, Garros, as well as the trusts under his control. The applicant
maintained that this breach of the principles of procedural fairness alone
warranted the Court’s intervention.
[44]
With respect, instead, I am of the view that the
applicant was sufficiently aware of the composition of the organization
characterized as criminal by the officer, that he knew the allegations to which
he was required to respond, and consequently, that he was not deprived of his
right to be heard. The applicant was interviewed for four hours, and the
officer’s interview report was sent to counsel for the applicant. It provided a
detailed description of the officer’s concerns regarding Socotram and its Board
of Directors and the applicant’s other companies.
[45]
The criminal organization at issue was also
identified in certain documents made available to the applicant, including the
respondent’s factum in file IMM-1144-14, and it was extensively discussed in
his first application for judicial review. If this issue were then of real
concern to the applicant, he had ample time to raise it in the seven months
that elapsed between this Court’s decision and the officer’s second decision.
[46]
Case law confirms that the principles of
fairness require that visa applicants be given a reasonable opportunity to
respond to the immigration officer’s concerns before their application is
denied (Khan, above, at paragraph 18). This principle does not
stretch to the point of requiring that an immigration officer has an obligation
to provide an applicant with a “running score” of the weaknesses during the
review of the evidence (Rukmangathan v Canada (Minister of Citizenship and
Immigration), 2004 FC 284 at paragraph 23). Nor did the officer’s
obligation to provide information require her to advise the applicant of her
future findings as to the exact composition of the criminal organization to
which he was suspected of belonging.
[47]
The Certified Tribunal Record contained extensive
documentation, in the form of repartees or questions and answers between the
officer and the applicant, where the involvement and role of the various
stakeholders was discussed. The list of documents that the applicant was
required to provide on September 25, 2012 was also extensive. As we will see,
the applicant chose not to provide most of the documents requested. He chose
not to address the officer’s concerns on the various topics discussed.
[48]
I therefore find that the applicant was
sufficiently aware of the facts that gave rise to the officer’s suspicions to
have the opportunity to respond and that he was in fact offered several
opportunities to do so.
B.
Did the officer raise a reasonable apprehension
of bias?
[49]
The applicant maintained that the officer’s findings
were based on a biased and prejudiced view of the Congo and its administration,
which raised a reasonable apprehension of bias. He contended that the whole
review was based on the premise that the Congolese government was [translation] “autocratic, corrupt,
favouring the emergence of a group of individuals who considered public offices
to be sources of personal enrichment and where institutions were subverted to
maintain the power of an elite.” He added that by ignoring a part of the
evidence that contradicted this premise, the officer had demonstrated bias, and
her decision was therefore invalid.
[50]
Two tests must be satisfied to confirm that a
decision-maker is impartial: (i) there must not be any conflict of interest;
and (ii) the decision-maker must be open to persuasion (Ayyalasomayajula v
Canada (Citizenship and Immigration), 2007 FC 248 at paragraph 13). An
applicant alleging that a decision-maker is biased must first rebut this
presumption of impartiality (Asl v Canada (Citizenship and Immigration),
2009 FC 505 at paragraph 11). He must demonstrate a real likelihood of
bias. Mere suspicion is insufficient (Guo v Canada (Citizenship and
Immigration), 2015 FC 161 at paragraph 19).
[51]
In this case, the applicant alleged a suspicion
of bias, but did not elaborate on the facts that would have given rise to such
suspicion. He did not raise any arguments that would lead me to conclude that
he was successful in rebutting the presumption of impartiality. In Committee
for Justice and Liberty et al. v National Energy Board et al., [1978] 1 SCR
369, the Supreme Court of Canada clearly stated that:
… 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. In
the words of the Court of Appeal, that test is “what would an informed person,
viewing the matter realistically and practically—and having thought the matter
through—conclude.” (page 394)
[52]
The issue then is whether, in all likelihood,
the officer, knowingly or unknowingly, rendered a biased and unfair decision.
The applicant did not raise any arguments that would lead me to this
conclusion, and the officer’s review of all of the evidence—including negative
inferences arising from the absence of certain evidence—lead me to the opposite
conclusion.
C.
Did the officer err in her interpretation of the
essential elements of section 37 of the IRPA?
[53]
I agree with the respondent that the role of
this Court is not to decide whether, on the evidence before the officer, there
were “reasonable grounds to believe” that the essential elements of
section 37 were satisfied, but only whether it was reasonable for her to
conclude that there were (Canada (Minister of Citizenship and Immigration) v
Thanaratnam, 2005 FCA 122 at paragraphs 32-33).
[54]
The issue of whether there are “reasonable
grounds to believe” that an event occurred within the meaning of
section 33 of the IRPA requires more than mere suspicion, but the standard
of proof is less onerous than that of the preponderance of the evidence. There
must be an objective basis for the belief which is based on compelling and
credible information (Mugesera v Canada (Minister of Citizenship and
Immigration), 2005 SCR 40, at paragraph 114).
[55]
The applicant maintained that the officer’s
decision was vitiated by several errors of law regarding the essential elements
required for section 37 of the IRPA to apply. He argued that the decision
was unreasonable due to several errors of fact and law, including: (i) the
existence of a criminal organization as described under
paragraph 37(1)(a), whose main objective is to engage in criminal
activities; (ii) the incorrect characterization of legal activities authorized
by Congolese law as criminal activities forming part of a pattern; and (iii)
the finding that there were elements constituting criminal offences, when they
were actually legal and authorized practices.
(a) Existence
of a criminal organization
[56]
With respect to the existence of a criminal
organization, the applicant maintained that the officer erred in reaching this
conclusion in the absence of evidence of criminal activity on the part of the
organization, an essential element of section 37 of the IRPA. The
applicant relied on the wording of the English version of Thanaratnam, above,
at paragraph 23, where the term “pursuing” is used to signify that the
organization must pursue criminal activities to be an organization within the
meaning of section 37. He submitted that the purpose of the organization
must be to commit organized criminal activities (Sittampalam v Canada
(Minister of Citizenship and Immigration), 2006 FCA 326 at paragraphs
37-38).
[57]
He added that even repeated criminal activities,
with several persons acting in concert in the absence of evidence of a criminal
organization with a purpose and plan, are not sufficient to meet the elements
of the test of paragraph 37(1)(a) (Thanaratnam, above, at
paragraph 30).
[58]
According to him, section 37 should be
interpreted harmoniously with the Criminal Code’s definition of “criminal
organization,” which requires that one of the main purposes of the organization
be to commit serious offences (B010 v Canada (Citizenship and Immigration),
2015 SCC 58 at paragraphs 37, 41-42, 46) or that a criminal organization
requires “an organizational structure that promotes the commission of
offences” (R v Way, 2015 ONSC 3080 at paragraph 121).
[59]
He concluded that the officer erred in
disregarding the evidence provided by the applicant demonstrating the legality
and legitimacy of his activities and those of Socotram, a legally constituted
corporation that has shareholders, a decision-making process consistent with
its bylaws, that is managed by directors and operates in accordance with the
laws of the Congo. He argued that the criminal organization identified by the
officer, as well as its members (including DSN, Socotram and its directors, an
entity constituted in Luxembourg consisting of accounts, companies and legal,
financial and tax structures for the applicant’s benefit, supervised by Garros)
did not satisfy the definition of criminal organization as recognized by the
courts and that they did not engage in activities that were part of such a
pattern.
[60]
I am of the opinion that when considering all
the evidence on the record, it was not unreasonable for the officer to find
that the applicant was a member of the organization described in her second
decision.
[61]
First, case law favours a flexible
interpretation of the term “organization” found in paragraph 37(1)(a) of
the IRPA to include a wide variety of organizations (Sittampalam, above
at paragraphs 36-40; B010, above at paragraphs 37, 42 and 46).
It is therefore sufficient that the group have been somewhat organized and have
been coordinating its activities for some time. An organization can be
characterized as criminal, regardless of whether the group also has legitimate
purposes or activities (R v Kwok, 2015 BCCA 34 at paragraph 84; R
v Beauchamp, 2015 ONCA 260 at paragraphs 171-172).
[62]
The evidence amply showed that Socotram’s
primary, if not sole, “legitimate” objective was to develop a national marine
fleet. It was also granted the right to collect maritime rights, which would
otherwise have benefited the Congolese government, with the specific aim of
achieving this objective. After 22 years of operation and a substantial
increase in the company’s income, this legitimate objective has still not been
achieved. And although the company’s income has increased, its profit margin
remains very low and, according to the applicant, it pays virtually no
dividends to its shareholders, including the Congolese government. When
questioned by the officer, the applicant, who is the CEO of Socotram, remained
very vague regarding his role and commercial activities.
[63]
Nor was he able to provide any details regarding
the transactions by which his management company acquired the majority of
Socotram’s capital stock and subsequently resold it.
[64]
It was in this context that the officer examined
the applicant’s excessive enrichment, his disproportionate revenues and the
substantial transfers of funds between Socotram and the applicant. She found
that the organization’s criminal activities, essentially misappropriation of
funds, took precedence over Socotram’s legitimate objective and that the
applicant acted in concert with several persons in order to do so. The only
explanation provided by the applicant was that he had a very attractive
employment contract. However, he refused to provide a copy of the contract and
instead produced the affidavit of a local lawyer who claimed to have read it
and that this document was confidential. The lawyer did not explain why she was
hired, nor did she explain why the document would be confidential. The
applicant also refused to provide most of the other documents required by the
officer. She could very well draw a negative inference from this insufficient
evidence.
[65]
I do not believe that the fact that the
organization in question does not respond to what is commonly understood as
organized criminality, i.e. controlling territories for the purpose of drug
trafficking, etc., prevented the officer from concluding as she did.
[66]
In my view, it was open to her to find that the
organization in question met all the requirements of a criminal organization.
As a result it falls within the meaning of paragraph 37(1)(a) of the IRPA.
(b) Existence
of criminal activities
[67]
The applicant submitted that a personal
enrichment project cannot constitute a criminal act if the actions taken are
individually legitimate. He added that even behaviour that is unauthorized,
negligent, unethical or noncompliant with recognized business practices is not
an indictable offence. He maintained that his indirect ownership of the
majority of Socotram’s shares, his involvement in managing the company’s
affairs, the government’s financial allocation from which the company benefits
(public funds and tax exemptions), the quest for personal enrichment, Garros’s
(an individual suspected of tax evasion) role and know-how in managing his
affairs, Socotram’s internal complacency (decisions that run counter to
Socotram’s development and interests) and the interconnection of all these
persons acting in concert are not illegal acts. Consequently, he argued that
the officer erred in finding that the whole was part of a “pattern of criminal
activity” within the meaning of the Act and/or case law.
[68]
The officer concluded that the organization had
committed misappropriation of funds, tax evasion and money laundering. However,
in order for paragraph 37(1)(a) of the IRPA to apply to that organization
and to the applicant, a single federal indictable offence committed as part of
a “pattern of criminal activity” is sufficient.
[69]
I repeat, Socotram’s corporate objective was to
acquire vessels of its own or in partnership to create a national marine fleet.
In the early 2000s, Socotram’s revenues from maritime rights were estimated to
be between US$23 million and US$29 million per year, in addition to
US$5.5 million in 2003 and US$9.3 million in 2004 paid by the
Congolese government. At the September 25, 2012 interview, the applicant stated
that a national marine charter fleet had not yet been established after 22
years of operation since the cost of purchasing vessels was too high. At the
time, Socotram was paying him an estimated annual salary of
CAD$3.5 million, not including the other benefits supposedly stipulated in
his employment contract. The officer did not have to require evidence that the
applicant was found guilty of misappropriation of funds in the Congo, or even
that these acts constituted fraud, tax evasion or misappropriation of funds in
the Congo, but that if committed in Canada, they would constitute such
offences. Contrary to what the applicant claims, this is not a question of
interfering in the affairs of Socotram or the Congolese government, but rather
determining whether the applicant is inadmissible to Canada for actions that
Canadian society does not tolerate and characterizes as criminal.
[70]
I am therefore of the view that it was open to
the officer to conclude that she had reasonable grounds to believe that the
applicant was appointed CEO of Socotram to lend the appearance of legitimacy to
the misappropriation of this company’s funds for his own personal benefit, in
concert with several other persons. It was also open to her to find that the
applicant used sophisticated corporate structures and a maze of dummy companies
headquartered in a tax haven to mask his criminal activities, in concert with
other individuals.
[71]
Contrary to what the applicant believes, she did
not find that creating sophisticated structures or incorporating companies in
tax havens was illegal per se. However, after having reviewed all the evidence,
she did have reasonable grounds to believe that the applicant had done this for
criminal purposes.
[72]
The applicant refused to provide his tax returns
and proof of payment of his taxes in the Congo or elsewhere. Instead, he filed
two affidavits from the same lawyer who commented on his employment contract,
stating that: (i) the applicant is a tax resident of the Congo and that three
of his tax certificates (for 2008, 2011 and 2012) are confidential; and (ii)
the applicant’s taxes are collected at source by Socotram. Again, his lawyer,
who practises law in Laval, Québec, did not explain how she could have personal
knowledge of the alleged facts or how the records at issue would be
confidential. At best, this is hearsay evidence; at worst, it is a convenient
statement.
[73]
It was therefore rational for the officer to
find that she had reasonable grounds to believe that the applicant had used his
dummy corporations located in a tax haven, mainly to avoid paying his taxes.
(c) Existence
of constituent elements of offences under a Canadian law
[74]
Finally, the applicant pleaded that the officer
erred in finding that all the facts entered into evidence enabled her to
conclude that she had reasonable grounds to believe that the applicant, in
concert with other persons, had committed offences outside Canada, that if
committed in Canada, would constitute indictable offences, i.e. fraud, tax
evasion and money laundering. He maintained that his high or excessive salary,
the payment of personal bills by Socotram, the payment of per diem amounts, the
management of a dwelling in the Paris area and the purchase of a house in
Montréal did not constitute fraud, but rather business decisions authorized by
the company’s board pursuant to his employment contract. He claimed that the
use of corporate and financial structures in Luxembourg did not constitute
evidence of tax evasion and that the officer could not find that he had laundered
proceeds of crime without demonstrating the existence of proceeds of crime or
indictable offences.
[75]
With respect, I believe that it was reasonable
for the officer to find that if the actions of the applicant and the other
members of the organization identified had been performed in Canada they would
constitute federal indictable offences.
[76]
It is true that the applicant attempted to
demonstrate the legality and legitimacy of some Socotram activities, taken
individually, but I do not believe that this evidence precluded any finding
regarding the criminal nature of the pattern or primary objective of the
organization.
[77]
Pursuant to Bédard J.’s request, the officer
listed the offences under Canadian law at issue: (i) fraud (Criminal Code,
section 380); (ii) tax evasion (Income Tax Act,
subsection 239(1)); and (iii) laundering proceeds of crime (Criminal
Code, subsection 462.31(1)), and each of their constituent elements.
She carefully weighed and reviewed each of these constituent elements in light
of the laconic evidence provided by the applicant. In this regard, the
applicant appeared to be essentially asking the Court to reconsider the
evidence, which is not its role. I agree with the respondent that a single
indictable Canadian offence was sufficient to support the officer’s findings,
and in my view her assessments concerning fraud and tax evasion were
reasonable.
[78]
In sum, the applicant failed to convince me that
the Court needed to intervene.
VI.
Certification
[79]
Following the hearing of this application, the
applicant sent me a letter in which he asked me to certify a number of
questions which he described as general and important:
A.
In a determination of inadmissibility under
paragraph 37(1)(a) of the IRPA, is the visa officer required to provide
the litigant with the identity of the criminal organization and inform him of
the specific allegations made against him before initiating the
interview and information gathering process, and is he required to include this
information in the fairness letter?
B.
In paragraph 37(1)(a) of the IRPA, does
the phrase “or in furtherance of the commission of an offence outside Canada
that, if committed in Canada, would constitute such an offence” require
constituent elements of the alleged offence to have been committed abroad, in
accordance with the law in force abroad? And an equivalence analysis and a
finding of dual criminality between the foreign offence and the offence under a
federal law?
C.
Can commercial practices provide the basis
for RGB (reasonable grounds to believe) regarding dishonest acts (within the
meaning of the Criminal Code of Canada) or criminal offences under
section 37 of the IRPA: (a) in the absence of evidence that such practices
are illegal in the country where the offences at issue were committed? (b) in
the absence of evidence that such practices are illegal in Canada?
D.
In the absence of evidence that they are
illegal in the countries at issue, can foreign governmental or legislative
choices and/or corporate choices abroad constitute dishonest acts or a pattern
of criminal activity within the meaning of paragraph 37(1)(a)?
E.
In the absence of evidence that they are
illegal in Canada, can foreign governmental or legislative and/or corporate
choices made abroad constitute dishonest acts or a pattern of criminal activity
within the meaning of paragraph 37(1)(a)?
F.
When the Federal Court remits a matter back
to the same officer specifically to correct errors of law and render a new
decision in accordance with the order, can the same officer legally consult
with other persons to render the new decision?
G.
Does invoking adjudicative privilege with
respect to a communication from the decision-making officer’s supervisor (with
persons other than the decision-maker) confirm the unlawful interference in the
decision-making officer’s decision-making process?
H.
Does this interference or involvement of
other persons violate the appearance of impartiality?
[80]
I am of the view that Question A is not
determinative since the applicant was in fact informed, early in the process,
of the allegations against him and that he had ample opportunity to be heard on
them.
[81]
Questions F, G and H are related to an argument
which the applicant raised for the first time at the hearing and was not
considered by the Court. They are therefore not determinative.
[82]
Finally, Questions B, C, D and E are all related
and have to do with my finding that it was not necessary for the officer to
conclude that the applicant had been found guilty or charged with an indictable
offence in the Congo, or that the alleged actions constituted indictable
offences in that country. They can be combined into a single question which, in
my view, would be more of general interest and would transcend the facts of
this case:
For the purposes of
paragraph 37(1)(a) of the Immigration and Refugee Protection Act,
does the phrase “or in furtherance of the commission of an offence outside
Canada that, if committed in Canada, would constitute such an offence” require
that there also be evidence that the actions at issue constitute a criminal
offence in the country where they occurred?
[83]
I am aware that the same question was certified
by Mr. Justice Hughes in Lai v Canada (Public Safety and Emergency
Preparedness), 2014 FC 258, and that the Federal Court of Appeal criticized
him for having done so it because it dealt with an issue that Hughes J. did not
have to rule on.
[84]
Because I have ruled on this issue in
paragraphs 69 and 70 of these reasons and find that (i) it is
determinative; (ii) it could be determinative in an appeal; (iii) it transcends
the interests of the parties in this case; and (iv) it is of a general nature,
it will be certified.
VII.
Conclusion
[85]
For all these reasons, the applicant’s
application for judicial review will be dismissed and the question stated in
paragraph 82 of these reasons will be certified.
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