Date: 20030528
Docket: IMM-2426-02
Citation: 2003 FCT 672
OTTAWA, ONTARIO, this 28th day of May 2003
PRESENT: The Honourable Mr. Justice James Russell
BETWEEN:
LIAO, CHI YU
Applicant
- and -
THE MINISTER OF CITIZENSHIP & IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application under section 18.1(1) of the Federal Court Act, R.S.C. 1985, c. F-7, for judicial review of a decision of the Immigration and Refugee Board made by adjudicator C. Simmie (the "Adjudicator") dated May 23, 2002, finding Liao Chi Yu (the "Applicant") to be a person described in paragraphs 19(1)(c.1) and 27(2)(a) of the Immigration Act R.S.C. 1985, c. I-2 (the "Act")and thereby issuing a deportation order against the Applicant pursuant to subsection 32(6) of the Act. The Applicant is requesting that this Court determine that he is not a person described in paragraphs 19(1)(c.1) and 27(2)(a) of the Act and that the deportation order against him be quashed.
Facts
[2] The Applicant is a 50 year old male citizen from Taiwan. He and his family came to Canada in 1999 on an employment authorization.
[3] On August 1, 2000, the Applicant was arrested on an immigration warrant based on a warrant issued in Taiwan for his arrest. The Taiwanese warrant alleged that the Applicant and his wife had committed fraud in Taiwan. The Applicant says that he was not aware he was wanted by the Taiwanese authorities until his arrest and detention in Canada on August 1, 2000.
[4] An inquiry into the allegations against the Applicant commenced on April 5, 2001 and was adjourned for continuation on September 11, 2001, January 21, 2002, March 27, 2002 and finally May 23, 2002, when the Adjudicator found that there were reasonable grounds to believe that the Applicant had committed the offences in question and proceeded to issue a deportation order against the Applicant. The execution of the deportation order was stayed on June 24, 2002 by Heneghan J.
[5] At the inquiry the Respondent introduced three letters from the Ministry of Interior of the Republic of China to Interpol Ottawa and the Toronto Police Services which contain the following allegations:
a) "The subject and his wife defraud large amount of money from some plaintiffs and then flee abroad with the fraudulent money."
b) "Liao used his bogus company in need of revolving fund as an excuse for borrowing NT$200,000 from our national Jo King Long and in order to establish credibility, Liao issued a check for NT$200,000 under the name of Lin Yuan Chi to the victim Mr. Jo"
c) "Mr. Liao and Mrs. Lee violated the criminal law of Charter 32, Article 339 for the offence of fraud."
[6] Article 339 of the Penal Code of the Republic of China specifies the following as an offence:
A person who by fraud causes another to deliver to him a thing belonging to such other or to a third person with intent illegally to appropriate it for himself or for a fourth person...
or
A person who by the means specified in the preceding paragraph procures an illegal benefit for himself or for a third person...
The amount of the Applicant's alleged fraud in Canadian dollars was $9,563.53.
[7] The Applicant adduced in evidence at the inquiry copies of three cheques issued by Lin Yuan Chi ("Lin") belonging to a company in Taiwan called the Yee Yong Mechanical Company Limited. He testified that these were the cheques given to King Long Jo ("Jo") by Lin in return for Jo advancing monies to Lin. The Applicant had endorsed the back of the cheques as guarantor. He further testified that, at the time he so endorsed the cheques, he genuinely believed that they would be honoured by Lin whom he trusted. He grounded his trust on the fact that he had assisted Lin similarly in 1998, and Lin's cheques on that occasion were honoured, and on the fact that Lin had personally assured him that the cheques would be honoured. He further testified that he had no interest in Yee Yong Mechanical Company Limited and derived no benefit from assisting Lin. The Applicant testified that there was no reason for him to flee Taiwan over an amount that was so small in comparison to his substantial personal worth. He testified that he came to Canada for the education of his son and not to flee his obligations as guarantor.
The Adjucicator's Decision:
[8] After determining that equivalency existed between the relevant offence under the Taiwanese Code of Conduct and sections 380 and 362 of the Criminal Code, R.S.C., 1985, c. C-46, ("Criminal Code") the Adjudicator went on to explain as follows:
So the next question I have to ask is whether or not there are reasonable grounds to believe you did indeed commit an act of either fraud or false pretences outside of Canada.
You have acknowledged that Exhibit 4 is a warrant for your arrest. This warrant does not refer to any other person. There is no dispute that it is you that is the person who is named in that warrant. You acknowledge that there is an outstanding matter in Taiwan. This is the subject of the matters addressed by this warrant. What that stands for is an acknowledgement that there is an offence in Taiwan, proceedings for which you have become liable. So that coupled with Exhibit 10, which contains the Taiwanese Criminal Code extract that I referred to, satisfies me that there is an offence overseas.
Now, what evidence do I have as to what it is that it is alleged you have done that generates these proceedings. Are there reasonable grounds to believe you committed the offence? Exhibit's 4 through 7 and 9 suggest a certain set of circumstances which led to the making of the outstanding charge in Taiwan. This forms the basis for the accusation made against you by the Taiwanese authorities. Those documents would suggest that a certain amount of funds was owed to Mr Jo King Long. The amount involved in $200000.00 Taiwanese dollars. The specific allegation is that you wrote a cheque for that amount of money and that you did not thereafter have sufficient funds in you account to cover the amounts of money owing to Mr Jo.
At your inquiry we have heard evidence from yourself as to certain set of circumstances relating to cheques issued to Mr Jo King Long. You have testified that in fact three cheques were issued to him. Two of those cheques were for $7000.00 Taiwanese dollars, and a third for $6000.00 Taiwanese dollars, for a total sum of money involved of $200000.00. You have testified that these cheques were not issued by you, but were in fact issued by a Mr Lin Yon Chi (phonetic). And that your actions in respect of these cheques were to endorse the back of those cheques as a guarantee that the money would be repaid to Mr Jo by Mr Lin. And that in the event Mr Lin was unable to make good on his promise to pay, as set out in the cheque, that you would ensure that that was done...
... On the 7th of February 1999 the cheques made out by Mr Lin, and endorsed by yourself, were not honoured by the bank because Mr Lin did not have sufficient funds in his account to cover those monies owing. Since you were no longer in Taiwan, and therefore your guarantee of payment in lieu of Mr Lin was no longer available, and Mr Jo was then out $200000.00 Taiwanese dollars.
...
I would also note that after the 7th of February 1999 when these monies were to come out you made no attempt to confirm that in fact the monies had been repaid as promised by Mr Lin. You made no contact either with Mr Lin, the person who was supposed to pay the money, nor with Mr. Jo, the person to whom the money was to be repaid, to ensure that indeed the money was paid, and that if not your guarantee could be honoured. You suggest that your first knowledge of Mr Lin's failure to pay the monies owing did not happen until August of 2000 when you were arrested by Immigration officials and became subject to these proceedings. In my opinion, if the facts of the case are as you state, and not exactly those cited in the document emanating from the Taiwanese police sources, there is still evidence of false statements or fraud as you gave your word that you would ensure the repayment of the money owed and then failed to do so. In my opinion, despite your prior successful guaranteeing of such loans from Mr Lin that you attested to having occurred approximately a year before this set of guarantees, it remained your obligation to ensure that this time once again Mr Lin did do as he promised he would do. By not doing so your promise to guarantee becomes an empty one resulting in a loss to Mr Jo of $200000.00 Taiwanese dollars.
It is therefore my conclusion ultimately that the basic elements of false pretences, or false statements, as particularly covered in section 362(1)(c) have been made out. Therefore since the Taiwanese offence is much broader, the offence of fraud in Taiwan there are reasonable grounds you have committed. It matters not, in my estimation, that you could have paid the money at any time. In other words, that you had the financial assets to support such guarantees through your house, through you personal savings, through whatever. What matters is, you gave your word that you would do certain things and then you did not do those certain things. You persuaded Mr Jo to believe that monies would be paid to him in a timely fashion and they were not. Since false pretences of this nature can carry a maximum term of imprisonment of 10 years if committed here in Canada I'm satisfied the allegation as made out by the Immigration Department has been established.
Arguments:
Applicant's Submissions:
[9] The Applicant submits that the Adjudicator erred in law in ruling that, on the whole of the evidence before her at the inquiry, there were reasonable grounds to believe that the Applicant had committed acts in Taiwan which constitute an offence under Article 339 of the Penal Code of Taiwan and that such acts, if committed in Canada, would constitute the offences of fraud over $5,000 (section 380 of the Criminal Code) and/or false pretence over $5,000 (section 362 of the Criminal Code).
[10] The Applicant submits that the allegations of fraud were unsubstantiated. They were from letters and warrants and not from affidavits or statements of witnesses.
[11] The Applicant points out that the Adjudicator did not reject his evidence because she clearly stated that "[i]f the facts of the case are as you state...there is still evidence of false statements of fraud as you gave your word that you would ensure the repayment of the money owed and then failed to do so." It is the Applicant's submission that, if the facts as stated by the Applicant are accepted, there are no possible grounds, let alone reasonable grounds, to believe he had committed the offence of fraud.
[12] The offence of fraud requires the means rea of a "subjective awareness that one was undertaking a prohibited act of deceit, falsehood or other dishonest act which could cause deprivation in the sense of depriving another of property or putting that property at risk." R. v. Théroux, [1993] 2 S.C.R. 5. The offence of false pretence requires a similar mens rea. The Applicant submits that his evidence was clear and unequivocal that he did not use any bogus company to gain advantage from anyone, that he did not issue the cheques in question, that he fully expected the debt to be repaid on time by Lin and had good reasons to so believe, that he derived no benefit whatsoever for himself from guaranteeing the cheques, and that he did not flee Taiwan to escape prosecution.
[13] The Adjudicator erroneously equated the failure of the Applicant to ensure that Jo would be repaid on time to the mens rea requirement of fraud or false pretence.
[14] The Applicant further submits that the Adjudicator had no alternative but to accept the Applicant's evidence, as there was no credible contradictory evidence. It would have been another reviewable error had the Adjudicator preferred bald allegations to the sworn and documentary evidence produced by the Applicant.
Respondent's submissions:
[15] The Respondent disagrees that it was an error for the adjudicator to equate the failure of the Applicant to ensure that the loan was repaid to the mens rea requirement of fraud or false pretence.
[16] The Respondent relies on Théroux, supra, in which the mens rea of fraud was discussed:
To put it another way, following the traditional criminal law principle that the mental state necessary to the offence must be determined by reference to the external acts which constitute the actus of the offence (see William, supra, c.3), the proper focus in determining the mens rea of fraud is to ask whether the accused intentionally committed the prohibited act (deceit, falsehood, or other dishonest act) knowing or desiring the consequences proscribed by offence (deprivation, including the risk of deprivation). The personal feeling of the accused about morality or honesty of the act or its consequences is no more relevant to the analysis than is the accused's awareness that the particular acts undertaken constitute a criminal offence.
...
Correspondingly, the mens rea of fraud is established by proof of:
1. subjective knowledge of the prohibited act; and
2. subjective knowledge that the prohibited act could have as a consequence the deprivation of another (which deprivation may consist in knowledge that the victim's pecuniary interests are put at risk).
Where the conduct and knowledge required by these definitions are established, the accused is guilty whether he actually intended the prohibited consequence or was reckless as to whether it would occur.
[17] The Respondent submits that the Adjudicator's decision only required "reasonable grounds" for the commission of offenses and only a " bona fide belief in a serious possibility based on credible evidence." (Chiau v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 2043 (C.A.)(QL).
[18] The Respondent argues that there was ample evidence before the Adjudicator to satisfy the first prong mens rea requirement of the offense. This evidence was that the Applicant gave his word that he would ensure the repayment of the loan and the Applicant did not do as he had promised. The Applicant made no attempt to confirm that the monies had been paid as promised. The Respondent submits that this constitutes a false statement made to the injured party (Jo) by guaranteeing a loan with an empty promise. The Applicant's endorsement of the three cheques constituted an empty promise and a lie and the Applicant knew this false endorsement would induce Jo to lend money to Lin. He also knew this empty promise would put Jo's money at risk.
[19] The Respondent submits that the second prong of the test was met in that the very act of guaranteeing a loan is knowledge of the "risk of deprivation." The Adjudicator had before her evidence that the Applicant had subjective knowledge that the prohibited act (his false statement to the lender) could have as a consequence the deprivation of another ("which deprivation may consist in knowledge that the victims's pecuniary interests are put at risk").
[20] The Respondent takes the position that the Adjudicator did not accept the Applicant's evidence in its entirety. Her decision as a whole makes it clear that her focus was guilty intent at the time the offence was committed and she found evidence of such guilty intent in the fact that:
a) The Applicant made a promise he did not keep;
b) There was no evidence the Applicant could not make good on the guarantee, and yet he had failed to do so;
c) The Applicant had left Taiwan for Canada and had not returned;
d) The Applicant made no attempt to confirm that the monies had been re-paid to Jo by Lin.
[21] This was ample evidence of a "serious possibility" that when the Applicant endorsed the cheques he had no intention of following through on his promise and that he intended to put Jo's money at risk.
Issues
[22] Did the Visa Officer err in her assessment that the Applicant was a person within the meaning of paragraphs 19(1)(c.1) and 27(2)(a) of the Act?
Analysis
Statutory Framework
Immigration Act, R.S.C. 1985, c. I-2:
| 19. (1) No person shall be granted admission who is a member of any of the following classes:
...
(c.1) persons who there are reasonable grounds to believe
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(ii) have committed outside Canada an act or omission that constitutes an offence under the laws of the place where the act or omission occurred and that, if committed in Canada, would constitute an offence that may be punishable under any Act of Parliament by a maximum term of imprisonment of ten years or more, except persons who have satisfied the Minister that they have rehabilitated themselves and that at least five years have elapsed since the expiration of any sentence imposed for the offence or since the commission of the act or omission, as the case may be;
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19. (1) Les personnes suivantes appartiennent à une catégorie non admissible_:
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c.1) celles dont il y a des motifs raisonnables de croire qu'elles ont, à l'étranger_:
...
(ii) soit commis un fait - acte ou omission - qui constitue une infraction dans le pays où il a été commis et qui, s'il était commis au Canada, constituerait une infraction qui pourrait être punissable, aux termes d'une loi fédérale, d'un emprisonnement maximal égal ou supérieur à dix ans, sauf si elles peuvent justifier auprès du ministre de leur réadaptation et du fait qu'au moins cinq ans se sont écoulés depuis la commission du fait;
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| 27(2) An immigration officer or a peace officer shall, unless the person has been arrested pursuant to subsection 103(2), forward a written report to the Deputy Minister setting out the details of any information in the possession of the immigration officer or peace officer indicating that a person in Canada, other than a Canadian citizen or permanent resident, is a person who
(a) is a member of an inadmissible class, other than an inadmissible class described in paragraph 19(1)(h) or 19(2)(c);
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27(2) L'agent d'immigration ou l'agent de la paix doit, sauf si la personne en cause a été arrêtée en vertu du paragraphe 103(2), faire un rapport écrit et circonstancié au sous-ministre de renseignements concernant une personne se trouvant au Canada autrement qu'à titre de citoyen canadien ou de résident permanent et indiquant que celle-ci, selon le cas_:
a) appartient à une catégorie non admissible, autre que celles visées aux alinéas 19(1)h) ou 19(2)c);
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| 362. (1) Every one commits an offence who
(a) by a false pretence, whether directly or through the medium of a contract obtained by a false pretence, obtains anything in respect of which the offence of theft may be committed or causes it to be delivered to another person;
(b) obtains credit by a false pretence or by fraud;
(c) knowingly makes or causes to be made, directly or indirectly, a false statement in writing with intent that it should be relied on, with respect to the financial condition or means or ability to pay of himself or any person, firm or corporation that he is interested in or that he acts for, for the purpose of procuring, in any form whatever, whether for his benefit or the benefit of that person, firm or corporation,
(i) the delivery of personal property,(ii) the payment of money,
(iii) the making of a loan,
(iv) the grant or extension of credit,
(v) the discount of an account receivable, or
(vi) the making, accepting, discounting or endorsing of a bill of exchange, cheque, draft or promissory note; or
(d) knowing that a false statement in writing has been made with respect to the financial condition or means or ability to pay of himself or another person, firm or corporation that he is interested in or that he acts for, procures on the faith of that statement, whether for his benefit or for the benefit of that person, firm or corporation, anything mentioned in subparagraphs (c)(i) to (vi).
362(2) Punishment
(2) Every one who commits an offence under paragraph (1)(a)
(a) is guilty of an indictable offence and liable to a term of imprisonment not exceeding ten years, where the property obtained is a testamentary instrument or the value of what is obtained exceeds five thousand dollars;
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362. (1) Commet une infraction quiconque, selon le cas_:
a) par un faux semblant, soit directement, soit par l'intermédiaire d'un contrat obtenu par un faux semblant, obtient une chose à l'égard de laquelle l'infraction de vol peut être commise ou la fait livrer à une autre personne;
b) obtient du crédit par un faux semblant ou par fraude;
c) sciemment fait ou fait faire, directement ou indirectement, une fausse déclaration par écrit avec l'intention qu'on y ajoute foi, en ce qui regarde sa situation financière ou ses moyens ou sa capacité de payer, ou la situation financière, les moyens ou la capacité de payer de toute personne, maison de commerce ou personne morale dans laquelle il est intéressé ou pour laquelle il agit, en vue d'obtenir, sous quelque forme que ce soit, à son avantage ou pour le bénéfice de cette personne, maison ou personne morale_:
(i) soit la livraison de biens meubles,
(ii) soit le paiement d'une somme d'argent,
(iii) soit l'octroi d'un prêt,
(iv) soit l'ouverture ou l'extension d'un crédit,
(v) soit l'escompte d'une valeur à recevoir,
(vi) soit la création, l'acceptation, l'escompte ou l'endossement d'une lettre de change, d'un chèque, d'une traite ou d'un billet à ordre;
d) sachant qu'une fausse déclaration par écrit a été faite concernant sa situation financière, ou ses moyens ou sa capacité de payer, ou la situation financière, les moyens ou la capacité de payer d'une autre personne, maison de commerce ou personne morale dans laquelle il est intéressé ou pour laquelle il agit, obtient sur la foi de cette déclaration, à son avantage ou pour le bénéfice de cette personne,maison ou personne morale, une chose mentionnée aux sous-alinéas c)(i) à (vi).
362(2) Peine
(2) Quiconque commet une infraction visée à l'alinéa (1)a)_:
a) est coupable d'un acte criminel et passible d'un emprisonnement maximal de dix ans, si le bien obtenu est un titre testamentaire ou si la valeur de ce qui est obtenu dépasse cinq mille dollars;
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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,
(a) is guilty of an indictable offence and liable to a term of imprisonment not exceeding ten 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;
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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_:
a) est coupable d'un acte criminel et passible d'un emprisonnement maximal de dix 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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Standard of Review
[23] The central issue in this case is the Adjudicator's interpretation of the relevant provisions of the Criminal Code (a question of law requiring a standard of review of correctness) and her application of those provisions to the Applicant's particular facts (a question of mixed fact and law subject to the standard of reasonableness simpliciter).
Analysis
[24] In order to be inadmissible under the Act the Minister must determine whether there is a reasonable possibility that the Applicant committed an act or omission in another country that, if convicted of that crime in Canada, could result in him serving a maximum sentence of ten years. The Applicant does not dispute that the alleged crimes in this case, if committed, would be equivalent to the crimes of fraud and/or false pretences under sections 362 and 380 of the Criminal Code.
[25] Having established the equivalency of the crimes, the Adjudicator must then decide if there are reasonable grounds to believe that the offence was committed or that there was a serious possibility based on credible evidence that the Applicant committed the equivalent offence of fraud or false pretences (Chiau, supra).
[26] Théroux, supra, outlines that the crime of fraud will be established by proof of both the actus reus and the mens rea. The actus reus requires there to be a prohibited act (deceit, falsehood or some other fraudulent means) and a deprivation caused by the prohibited act (which can include putting the victim's pecuniary interest at risk). The foundation of the actus reus is that the Crown must prove that there has been some sort of dishonest act and a deprivation. The most relevant factor to this case is the existence of a dishonest act.
[27] The dishonesty would have to exist at the time that the guarantee was made. The question is whether the Applicant honestly or dishonestly guaranteed the cheques? The Applicant must have had subjective knowledge that he would not or could not fulfill his promise to guarantee the loan. It is not entirely clear from the transcript and the Adjudicator's decision whether she correctly addressed the issue of dishonest intent at the time the Applicant endorsed the cheques. What she appears to find reprehensible and dishonest is his later conduct in not ensuring the cheques had been honoured by Lin, and not actually paying on the guarantee himself. Although these later acts and omissions might well constitute evidence of dishonest intent at the time the guarantee was given, the Adjudicator does not clearly address this crucial issue. The heart of her reasoning and thought processes appears to be embodied in the following words:
It matters not, in my estimation, that you could have paid the money at any time. In other words, that you had the financial assets to support such guarantees through your house, through your personal savings, through whatever. What matters is, you gave your word that you would do certain things and then you did not do those certain things. [Emphasis added]
[28] In other words, the dishonest conduct in the Adjudicator's mind appears to be the later failure to keep the promise rather than the Applicant's intent at the time the promise was made.
[29] The Applicant's story was that he had every intention at the material time of honestly fulfilling his guarantee. He believed that Lin would repay the loan and honour the cheques based on his past business dealings with him. He was not aware that the cheques had bounced until the time of the immigration investigation. The Adjudicator's position was that these facts did not matter. What mattered was the later failure to honour the guarantee.
[30] But in deciding whether there was a "serious possibility" that the crime had been committed the evidence given by the Applicant did matter, the later failure to honour the guarantee was not conclusive. The Adjudicator's failure to address these issues correctly is a reviewable error.
[31] The Applicant submitted questions for certification. The questions are not serious questions of general importance and therefore will not be certified.
ORDER
THE COURT HEREBY ORDERS THAT:
1. The application for judicial review is allowed, the May 23, 2002, decision is set aside and the matter is remitted for reconsideration by a different Adjudicator.
2. No questions will be certified.
"James Russell"
J.F.C.C.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-2426-02
STYLE OF CAUSE: LIAO, CHI YU
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: APRIL 9, 2003
REASONS FOR ORDER BY: RUSSELL, J.
DATED: MAY 28, 2003
APPEARANCES BY: Mr. Edward Hung
For the Applicant
Mr. Jeremiah Eastman
For the Respondent
SOLICITORS OF RECORD: Edward Hung
Barrister and Solicitor
1033 Bay Street, Suite 319 Toronto, Ontario
M5S 3A5
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20030528
Docket: IMM-2426-02
BETWEEN:
LIAO, CHI YU
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
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