Docket: IMM-4953-16
Citation:
2017 FC 1096
Ottawa, Ontario, December 4, 2017
PRESENT: The
Honourable Mr. Justice Brown
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BETWEEN:
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NASSER TARABEIN
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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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JUDGMENT AND REASONS
I.
Nature of the Matter
[1]
This is an application for judicial review brought
under section 72(1) of the Immigration and Refugee Protection Act, SC
2001, c 27 [IRPA] of a decision of the Immigration Program Manager and
Deputy Program Manager of the Embassy of Canada in Beirut, Lebanon [Visa Officer]
dated October 27, 2016, which found the Applicant inadmissible to Canada for
two reasons: (1) because of organized criminality pursuant to paragraph
37(1)(b) of IRPA, i.e., money laundering; and (2) because of
misrepresentations contrary to paragraph 40(1)(a) of IRPA.
[2]
The determinative issue is whether the Applicant
was afforded procedural fairness by the Officer.
[3]
In my respectful view, the finding of organized
criminality, i.e., money laundering, described in paragraph 37(1)(b) of IRPA
was vitiated by procedural unfairness. I am of the same view with respect to the
finding of misrepresentation contrary to paragraph 40(1)(a). As a result, the
application for judicial review is granted. My reasons follow.
II.
Standard of Review
[4]
In Dunsmuir v New Brunswick, 2008 SCC 9
at para 50 [Dunsmuir], the Supreme Court of Canada explained what is
required of a court reviewing on the correctness standard of review, as is
required in this case:
When applying the correctness standard, a reviewing court will not show deference to the decision
maker’s reasoning process; it
will rather undertake its own analysis of the question. The analysis will bring
the court to decide whether it agrees with the determination of the decision
maker; if not, the court will substitute its own view and provide the correct answer. From the outset, the court
must ask whether the tribunal’s decision was correct.
[5]
In this connection, it is also accepted that the
general rule for determinations by visa officers is their “duty of procedural fairnesslies at the lower end of the
spectrum” Mirosavljevic v Canada, 2016 FC 439 at paras 18-20 per
Zinn J. However, where misrepresentation is concerned, “a
very high standard of fairness is to be applied in the application of this
provision”, due to the fact that a finding of misrepresentation triggers
a five-year bar on admission to Canada: Menon v Canada (Minister of
Citizenship and Immigration), 2005 FC 1273 at para 15 per Gibson J.
III.
Facts
[6]
The Applicant is a dual Lebanese-Venezuelan
national. He was born in Lebanon and moved to Venezuela in 1980. In 1988, he
married his wife, who joined him in Venezuela. In Venezuela, the Applicant
incorporated various companies including the Texas Shop Cowboy, CA and Buffalo,
CA, which are general trading companies that sell consumer goods.
[7]
On or around October 2008, the Applicant says he
was kidnapped and held for ransom by criminals in Venezuela. Fearing the safety
of their children, the Applicant’s wife returned to Canada to protect their
children. His wife and children are Canadian citizens.
[8]
Upon his release, the Applicant fled to Lebanon
where he began efforts to be reunited with his family in Canada. However, while
in Lebanon, the Applicant claims to have experienced recurring threats from his
capturers and feared that he would, again, be threatened.
[9]
In September 2008, the Applicant was admitted to
Canada as a temporary resident for a six-month period. In 2009, his wife
submitted an in-Canada sponsorship application, but in March 2009, the Applicant
returned to Lebanon for a family emergency. Thereafter, he submitted a sponsorship
application from Lebanon.
IV.
Procedural Background
[10]
In August 2013, the Applicant’s application for
permanent residence was refused because the Applicant was inadmissible on
security grounds, specifically, under paragraph 34(1)(f) (being a member of a
listed terrorist entity: Hezbollah) and subsection 37(1) (organized
criminality) of IRPA [the First Decision].
[11]
He applied for judicial review but his
application was remitted for redetermination on consent because it was agreed
the Applicant had not received a fair process, specifically, the Applicant was
not sufficiently informed of the case against him.
V.
The Undertaking
[12]
As part of the settlement, the Respondent,
through counsel at the Department of Justice, gave an undertaking to the
Applicant’s counsel that prior to the redetermination, the Applicant would
receive a procedural fairness letter and, in addition, the Applicant would have
45 days to respond [the Undertaking].
[13]
The Applicant’s counsel confirmed the Undertaking
by letter which stated, in part:
We confirm that a fairness letter and 45
days to make submissions is acceptable, and our client is prepared to accept
the settlement offer on these terms.
[14]
The client department confirmed the Undertaking
in internal correspondence:
It was agreed that the application will have
45 days to respond to a procedural fairness letter.
[15]
There is no doubt that the Undertaking was given.
Moreover, it is agreed that what was promised was never performed.
[16]
Instead of honouring the Undertaking, the
Respondent convoked an interview with the Applicant. It is common ground that the
Applicant did not receive a procedural fairness letter of any kind. It is also agreed
that he did not receive 45 days in which to make written submissions. Therefore,
it is inescapable that neither element of the Undertaking was satisfied. There
is no suggestion that the Applicant consented to the process arbitrarily
adopted by the Respondent.
[17]
In my respectful view, the Respondent’s failure
to honour the Undertaking resulted in procedural unfairness and in this case,
fatally so. The interview, without a procedural fairness letter could not be,
and was no substitute for the promised procedural fairness letter and 45 days
to make responding submissions.
[18]
On this record, it is clear that the finding of
organized criminality, i.e., money laundering, made under paragraph
37(1)(b) of IRPA derived entirely from this procedurally unfair process.
The same is also true of the finding of misrepresentation under paragraph
40(1)(b) of IRPA. Therefore, both aspects of the decision now under
review must be set aside for redetermination in accordance with the Undertaking.
[19]
In the circumstances, I make no finding on
whether the CBSA and FINTRAC reports found in the CTR should have been
disclosed on the assumption that the Undertaking had not been given. Indeed, this
Judgment is based on the failure to honour the Undertaking; while many
additional facts and legal issues were argued, I decline to comment on them.
VI.
Section 87 Proceeding
[20]
As further procedural background, the initial
certified tribunal record contained a number of redactions. The Respondent
applied under section 87 of IRPA for non-disclosure of information. I
convened a public hearing at which the Applicant’s counsel identified
information that should be reviewed with a view to its possible release, and counsel
also identified redactions that were not contested. Submissions were made by
both parties at this public hearing. Thereafter, I conducted an in camera hearing,
without the presence of counsel for the Applicant, subsequent to which the
Respondent consented to the release of the bulk of the information previously
withheld. I ordered certain other information withheld that was not contested
by the Applicant. I saw no need to appoint a Special Advocate.
VII.
Certified Question
[21]
No question of general importance was proposed
for certification, and none arises.
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