CITIZENSHIP AND IMMIGRATION
Exclusion and Removal
Inadmissible Persons
Judicial review of decision of Immigration Appeal Division of Immigration and Refugee Board applicant person described in Immigration and Refugee Protection Act, s. 36(1)(c) and therefore subject to deportation order—Applicant, Vietnamese, coming to Canada on visitor’s visa—Shortly after arrival, applicant learning wanted by Vietnamese authorities on allegations of fraud—Applicant later marrying in Canada and wife applying to sponsor applicant—Report prepared under former Immigration Act stating applicant inadmissible to Canada as member of class of persons reasonably believed to have committed offence outside Canada which in Canada constitutes offence punishable by imprisonment of 10 years or more—Based on information applicant wanted in Vietnam for fraud—In Vietnam, applicant had borrowed from state bank and forwarded funds to other companies so that other companies had access to funds exceeding legal limit imposed on company financing—IRPA coming into force while investigation conducted in Canada and initial claim in report modified to refer to new provision in Act—Appeal Division concluding allegations contained in Interpol report, Vietnamese arrest warrant showing reasonable grounds to believe applicant committing crimes—Concluding sufficient evidence justifying conclusion applicant falling within ambit of IRPA, s. 36(1)(c)—Appeal Division erring in not considering whether same actions committed in Canada would constitute fraud within meaning of Criminal Code— Applicable threshold in s. 36(1), dealing with inadmissibility to Canada of foreign national, is seriousness of crime accord-ing to Canadian standard—Equivalency may be determined by: (1) comparing precise wording in each statute to determine essential elements of respective offences; (2) examining evidence to ascertain whether evidence sufficient to establish that essential elements of offence in Canada proven in foreign proceedings; (3) combination of two ways—Appeal Division only briefly mentioning acts allegedly committed constituting fraud under Criminal Code—Not analysing essential elements of offences as required—Equivalency of offence, not equiva-lency of law must be examined—Even if applicant’s acts leading to offence of fraud under Vietnamese law, not necessa-rily leading to conclusion same acts committed in Canada would constitute offence under Criminal Code— Immigration Act, R.S.C., 1985, c. I-1—Failure to properly conduct equiva-lency assessment in cases under IRPA, s. 36(1)(c) fatal— Application allowed—Immigration Act, R.S.C., 1985, c. I-2— Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 36—Criminal Code, R.S.C., 1985, c. 46.
Ngo v. Canada (Minister of Citizenship and Immigration) (IMM-8333-04, 2005 FC 609, Blanchard J., order dated 3/5/05, 10 pp.)