Date: 20050929
Docket: IMM-7766-04
Neutral citation: 2005 FC 1338
Toronto, Ontario, September 29, 2005
Present: THE HONOURABLE MR. JUSTICE CAMPBELL
BETWEEN:
KYONG-U ZEON
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The decision under review in the present Application is that of a Visa Officer ("Officer") in the Canadian Embassy in Seoul, Korea ("Embassy") who decided that the Applicant is inadmissible to Canada for criminality on the application of s.36(2)(c) of the Immigration and Refugee Protection Act ("IRPA"). Main arguments raised by the Applicant in challenging the decision are that the decision does not meet the standard of review of reasonableness because it is deficient, and that the decision was reached in breach of due process. For the reasons which follow, I agree with both arguments.
[2] The present case involves findings of inadmissibility in which s.11 and s.36(2)(c) of IRPA were applied:
Section 11 reads as follows:
| 11. (1) A foreign national must, before entering Canada, apply to an officer for a visa or for any other document required by the regulations. The visa or document shall be issued if, following an examination, the officer is satisfied that the foreign national is not inadmissible and meets the requirements of this Act. |
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11. (1) L'étranger doit, préalablement à son entrée au Canada, demander à l'agent les visa et autres documents requis par règlement, lesquels sont délivrés sur preuve, à la suite d'un contrôle, qu'il n'est pas interdit de territoire et se conforme à la présente loi.
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Section 36(2)(c)reads as follows:
| (2) A foreign national is inadmissible on grounds of criminality for
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(c) committing an act outside Canada that is an offence in the place where it was committed and that, if committed in Canada, would constitute an indictable offence under an Act of Parliament;
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(2) Emportent, sauf pour le résident permanent, interdiction de territoire pour criminalité les faits suivants :
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c) commettre, à l'extérieur du Canada, une infraction qui, commise au Canada, constituerait une infraction à une loi fédérale punissable par mise en accusation;
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[3] The circumstances resulting in the making of the decision are not in dispute.
[4] The Applicant signed an investment agreement and applied for permanent resident visas under the Federal Immigrant Investor Program. The Applicant's wife and children have been in Canada on Study Abroad visas since June 2002. The Applicant was concerned about the length of time it was taking to process his visa application because he wanted to enrol his daughter in a particular school by July 5, 2004, and as a result, he visited the Embassy several times and made various inquiries, but received no response concerning the status of his visa. Finally, on June 24, 2004, the Applicant decided to resolve the matter by providing a payment, and, on that day, he hand-delivered an envelope to the receptionist at the Canadian Embassy which contained about $590 CDN and a note requesting expedited service on his application.
[5] The next day, the Applicant was told that his visas were ready for collection, however, when he arrived at the Embassy, he was told that the issuing of the visas was going to be postponed because his payment was, in effect, considered to be a bribe. The Applicant then sent a letter to the Consul at the Embassy explaining his intentions and rationale. The Applicant was interviewed by the Visa Officer at the Embassy on July 6, 2004 and was advised that his act of delivering the envelop made him criminally inadmissible to Canada.
A. The evidence
[6] Apart from the uncontested circumstances outlined above, there are only three sources of evidence about the considerations upon which the decision under s.36(2)(c) was made: the computer records of the Officer ("the Notes") made on the same day that the Applicant was interviewed, the notice letter to the Applicant dated July 15, 2004 ("the Letter"), and the Applicant's affidavit filed in support of the present Application ("the Affidavit"). No affidavit was tendered by the Officer.
[7] The relevant portions of the Notes, in their original form, are as follows:
PI appeared at immigration reception on 24 Jun 04. He wanted to submit an envelope and insisted on submitting the envelope directly to the receptionist and not via the drop box. The receptionist accepted the envelope without inspection.
On 25 Jun04 Registry staff opened the envelope and found it contained a letter from PI and a bundle of money. The band around the bundle indicated that amount as KRW 500K ~c$590. The letter requested issuance of visas by 25Jun04. The exact amount of money is not known and the band was not broken and the money has not been counted.
Registry staff immediately reported the submission to the supervisor of Registry, who subsequently reported the submission to the DPM and IPM.
The application was finalized on 23Jun04, and visas printed on 24Jun04. Visas have not been placed in PPT and have not been issued to PI pending investigation of PI submission of money to reception and assessment of PI's.
B044077865 DAV 25-JUN-2004
PI appeared at reception 25Jun04, stating that his lawyer advised him his visas were ready to be picked up. PI advised that his Appn remains under review and he will be contacted if further action required
B044077865 DAV 25-JUN-2004
Interview at 9AM, Tuesday, 06JUL2004. Informed PI
B044077865 SSY 29-JUN-2004
-Sbj arrived for interview at 9:00 AM July 6, 2004
-Helen Yoo translating
- Sbj acknowledged having given envelope with money
-Sbj acknowledged letter with money as his. His hand-writing
-Sbj acknowledged subsequent statement regarding money and request for faster processing
(Money was handed back to Sbj, acting program manager and translator witnessed return of money to Sbj)
-When asked repeatedly if Sbj knew that act of Giving money was a problem
-Sbj admitted he was remorseful for the act
-He said he had done the same to get a visa from Chinese Embassy and was successful in doing so
-He said he did not know that there was a cultural difference between Canada and China
-Was apologetic for having given the money
-Advised Sbj act was contrary to the Immigration Act
-Reasonable grounds to believe Sbj committed an act contrary to the Act
-Has committed an act that would be contrary to the Canadian criminal code
-Has attempted to bribe a public official
-Sbj did not mean to commit act, knew documents were okay,
-So you gave the money to get visas sooner?
- I did for my daughter, she was to be admitted to high school
-Counselled re study permit for children
-Counselled that he is now criminally inadmissible
-Counselled he would be unable to visit as well
- Advised refusal letter would be sent in a week to 10 days
-Letter will explain grounds for refusal and advise to length of inadmissibility, when he would no longer be inadmissible
[Emphasis added]
(Tribunal Record, pp. 2-4)
The contents of the Letter are as follows:
After careful and thorough consideration of all aspects of your application and the supporting information provided, I have determined that you do not meet the requirements for a permanent resident visa because you are a person described in paragraph 36(2)(c) of the Immigration and Refugee Protection Act. You are therefore criminally inadmissible to Canada.
Paragraph 36(2)(c) renders inadmissible a foreign national on grounds of criminality for committing an act outside Canada this is an offence in the place where it was committed and that if committed in Canada, would constitute an indictable offence under an Act of Parliament.
You committed an offence in Korea on June 30, 2004, namely "Offer of Bribe". This act constitutes and offence under the laws of the place where it occurred. Article 133 of the Korean Criminal Act states the following:
(1) A person who promises, delivers or manifests a will to deliver a bribe as stated in Articles 129 through 132 shall be punished by imprisonment for not more than five years or by a fine not exceeding tweeny million won. < Amended by Act No. 5057, Dec 29. 1995 >
If committed in Canada, this would constitute an offence under article 121(1)(a) "Frauds on the government" of the Criminal Code of Canada punishable by way of indictment and liable to imprisonment for a term not exceeding five years.
Subsection 11(1) of the Act states that the visa or document shall be issued if, following an examination, the officer is satisfied that the foreign national is not inadmissible and meets the requirement of this Act. I am satisfied that you are inadmissible for the reasons set out above. I am therefore refusing your application pursuant to subsection 11(1) of the Act.
This inadmissibility also extends to any stay in Canada as a visitor, for you. You should therefore not attempt to enter Canada.
A foreign national who inadmissible [sic] under 36(2)(c), where at least 5 years have elapsed since commission of the act, has committed no subsequent act nor been convicted of a subsequent offence may apply to the Minister to approve rehabilitation. If 10 years have elapsed from the commission of the act, they may be deemed rehabilitated.
(Tribunal Record, pp. 35-36)
The relevant portions of the Affidavit are as follows:
On June 24, 2000, I resolved to have the matter expedited by providing a payment for priority service. I had done so once before in order to obtain expedited service in acquiring a visa at the Chinese Embassy, and so I understood this to be a routine process in order to receive priority service. I arrived at the Canadian Embassy in Seoul with an envelope containing the equivalent of about $590 CDN, along with a letter requesting that the visas be issued by June 25. I arrived at the Immigration Reception, and was instructed by the receptionist to leave my envelope in the drop box, and I was anxious to have the visas issued the next day. The receptionist accepted the envelope without inspecting it. The money in the envelope was clearly not intended for the personal use of any particular individual at the Embassy. I certainly did not communicate such an intention to the receptionist. At all times, my intention was that this money was to be used as a processing fee by the relevant office charged with facilitating this process.
The next day, I learned from my lawyer that the visas had been approved and were ready to be picked up. Yet when I arrived at the reception, I was advised that my application remained under review. That day, registry staff at the Embassy had opened my envelope and immediately reported the submission to the supervisor of registry, which subsequently reported the submission to the DPM and IPM.
When I learned that the Embassy had considered my payment to be a bribe, and that the issuance of the visas would be postponed as a result of this, I was both surprised and remorseful. Though I certainly did not intend to deliver any bribe, I realized that my action was now being interpreted as such, and so I came to regret it as a mistake. On June 29, I sent a letter to Mark Floyd, Consul at the Canadian Embassy in Seoul, setting out my situation, and informing him that I had made a mistake.
On July 6, 2004, I was interviewed at the Embassy. I acknowledged having given the envelope, and asserted that I was remorseful for this act, particularly as I was advised by my interviewer that my act was contrary to the Immigration Act. At the time, I was ignorant as to Canadian law, so when I was advised by the interviewer that my act was both illegal and contrary to Canadian norms of behaviour, I took him at his word. However, I insisted that I did not mean to bribe anyone, and that I gave the money only so that the visa could be issued sooner in light of my child's registration deadline. I was told at the interview that I was criminally inadmissible to Canada, and that I would be receiving a refusal letter in a week to ten days. I was told that the letter would explain the grounds for my refusal.
On July 8, Ms. Wasilewski sent a letter to Mark Floyd, explaining that I had no intention whatsoever to deliver a bribe, and that I understood the money to be simply a fee for expedited service. Ms. Wasilewski requested that Mr. Floyd consider all the circumstances of my case. I had already invested $400,000 and had already obtained a favourable decision on my visa application, Ms. Wasilewski noted in her letter that it made little sense for me to jeopardize my future by attempting to bribe an official for $600 CDN when my application was approved. Ms. Wasilewski raised the possibility that the officer had made an incorrect assessment of my actions, and asked that I be given the benefit of the doubt.
On July 15, 2004, I received the refusal letter that was promised to me on July 6. The letter itself simply set out that I had committed an offence - "Offer of Bribe" - according to Korean law, and that this would be considered in Canada as an offence of a fraud on government. In the letter, there was no indication that the Officer had considered my assertions that I did not intend to bribe anyone. There is nothing in it indicating my stated concern for my child's registration deadline, and there is certainly nothing in it to address my explanation that I was intending to give what I believed to be a processing fee for expedited service. From the contents of the letter - as well as my experience at the interview - it is unclear to me as to whether the Officer simply did not find me credible, or rather, overlooked or ignored my evidence.
(Applicant's Application Record, pp. 17-20)
B. Deficiency of the decision rendered
[8] There is no question that reaching a decision under s.36(2)(c) of IPA requires decision-making on complex issues. By this provision, a finding must be made on the "double criminality" requirement. By s.33 of IPA, factual findings on each criminality requirement need only be on the basis of "reasonable grounds to believe", but nevertheless, two conclusions must be made: the Applicant committed an offence in foreign law, and this offence has an equivalent in Canadian law. To render a reasonable decision under s.36(2)(c), it is incumbent on a visa officer to provide critical analysis of how a visa applicant can be said, on reasonable grounds to believe, to have committed an act which constitutes an offence in a foreign jurisdiction, and then to also provide critical analysis of how it can be said, on reasonable grounds to believe, that the same act would constitute an offence in Canada. The legal complexity of the requirements to meet the task must be accomplished to avoid a successful challenge on judicial review (see Valery v. Canada (Minister of Citizenship and Immigration), [2001] 4 FC 42 (TD), Zhang v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 1971 (TD), and Li v. Canada (Minister of Citizenship and Immigration), [1997] 1 FC 235 (C.A.)).
[9] A primary question in the present case is when was the decision made under s.36(2)(c)? I find that the Notes prove that the decision was made during the interview, a number of days prior to the Letter being written. On this basis, it appears that the equivalence finding in the Letter is what I would call "backfilling" intended to rectify what was not done, but was required to be done, before the decision was made.
[10] That is, there is not only no evidence that the critical analysis required between Korean and Canadian law had been undertaken and concluded before the decision was announced during the interview, but there is evidence to the contrary; the Officer specifically only refers to Canadian law in stating in the Notes that the Applicant's act was contrary to "the Immigration Act", and contrary to the "Canadian Criminal Code" in that he "has attempted to bribe a Canadian official". As a result, I find that the decision was reached without the equivalence critical analysis required by s.36(2)(c).
[11] During the course of oral argument, Counsel for the Respondent argued that the words used at the end of the Notes, that the grounds of refusal would be supplied in a letter, corrects any defect in decision-making arising from the interview. I do not accept this argument. I find that, whatever the Officer meant by this comment, it cannot be interpreted so as to conclude that the complex dual criminality analysis required under s.36(2)(c) had been conducted prior to the decision being made.
[12] As a result, I find the decision is deficient, and as such, is unreasonable.
C. Breach of due process
[13] In my opinion, on reading the Notes and the Affidavit together, it is not possible to accurately ascertain the content of the conversation that transpired between the Officer and the Applicant. It appears from the Notes that the Officer believed that the Applicant made an admission of guilt, while in the Affidavit, the Applicant swears that no such admission was made. In my opinion, it is very important to know the exact nature of the conversation in order to judge the reasonableness of the decision under review.
[14] In my opinion, with respect to the type of decision-making that took place in the present case, to meet a minimal duty of fairness to a person who is being asked by a decision-maker for an explanation of facts which are considered damning, it is incumbent on the decision-maker to prove, with accuracy, the content of the conversation relied upon in reaching a decision. When it comes to proof of the contents of such a conversation, the obligation for accuracy can be met in a number of ways: by a transcript of what was said, by a recording of what was said, by a detailed written account of what was said in the form of notes made during the course of the conversation; or by an affidavit from the decision-maker setting out in detail what was said. In the present case the only record coming from the Officer of the critical conversation is the cursory and ambiguous Notes; I find the Notes do not meet the standard of proof required.
[15] In my opinion, this breach of due process constitutes reviewable error.
[16] Counsel for the Respondent proposes the following question for certification:
Is there a breach of procedural fairness where the Applicant is informed he is inadmissible, and is subsequently given written reasons which set out the rationale in support of this decision?
[17] In my opinion, the question posed is not of general importance. The findings made in these reasons on the issues of the quality of the decision made, and when it was made, are a function of the unique evidence presented in the present Application.
ORDER
Accordingly, I set aside the Officer's decision and refer the matter back to a different visa officer for redetermination. I direct that the determination be on a fresh record of evidence, and that the redetermination be conducted in the presence of Counsel for the Applicant if the Applicant so wishes.
"Douglas R. Campbell"
Judge
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
STYLE OF CAUSE: KYONG-U ZEON
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: SEPTEMBER 20, 2005
APPEARANCES:
Mario Bellissimo FOR THE APPLICANT
Janet Chisholm FOR THE RESPONDENT
SOLICITORS OF RECORD:
Mario Bellissimo
Barrister and Solicitor
Toronto, Ontario FOR THE APPLICANT
John H. Sims, Q.C .
Deputy Attorney General of Canada FOR THE RESPONDENT