Board’s decision was unintelligible

INADMISSIBLE AND REMOVABLE CLASSES

Board’s decision was unintelligible

Foreign national was citizen of Philippines who had come to Canada under live-in caregiver program. Foreign national had defaulted on loan from bank in United Arab Emirates which led to criminal conviction in absentia in that country for uttering in bad faith dud cheque. Inadmissibility report was issued against him and Immigration Division of Board ordered him deported. Foreign national made refugee claim. Minister intervened, contending that foreign national should be excluded from protection for serious non-political criminality pursuant to s. 98 of Immigration and Refugee Protection Act (Can.). Board found that foreign national was excluded by s. 98 of Act and Article 1F(b) of Convention. Board concluded that offence was sufficiently similar to offence of fraud in that it could be prosecuted in Canada under paragraph 380(1)(a) of Criminal Code (Can.), and maximum penalty for that was 14 years, so Board held that it was serious crime. Board found that sentence of 18 months’ imprisonment in UAE was within acceptable international standards. Board accepted foreign national’s submission that this could have been civil matter in Canada. As there were serious reasons to consider that foreign national had committed serious non-political crime, Board concluded foreign national was excluded from protection by s. 98 of Act. Foreign national applied for judicial review. Application allowed; matter returned to another panel of Board for redetermination. Board’s decision was unintelligible. Having found that foreign national could not have been convicted for his conduct in Canada, Board could not simultaneously presume that offence was serious because he could have been convicted, yet that was what Board did. Entire decision was thereby tainted since Board had already applied presumption of seriousness when assessing other factors. By doing so, it had put burden on foreign national to prove that offence was not serious. Board found  that penalty of 18 months’ incarceration was not in violation of accepted international standards, however, there was no evidence that defaulting on loan was crime in any other countries, let alone what penalties might be imposed for it. Since burden of proof should have still been on Minister if s. 380(1)(a) of Code was not equivalent offence, this finding was made without any evidence to support it. Further, while length of sentence actually imposed was not always pertinent it was strange that Board only assessed whether sentence was severe by international norms and not whether 18 months was long enough sentence to indicate that foreign national’s actual conduct was serious. For all those reasons, Board’s decision was unreasonable.
Notario v. Canada (Minister of Citizenship and Immigration) (Dec. 2, 2014, F.C., John A. O’Keefe J., File No. IMM-2229-13) 247 A.C.W.S. (3d) 916.