Ø Introduction
The Federal Court reviewed a second decision finding the
applicant inadmissible under paragraph 37(1)(a) of the IRPA for membership in a
criminal organization.
The Court upheld the decision because the officer corrected
the errors identified in the applicant’s earlier judicial review, identified
the organization and relevant Canadian offences, and reasonably assessed the
applicant’s involvement in the organization’s criminal activities.
Ø Key Principle
For paragraph 37(1)(a), the officer must establish reasonable
grounds to believe that the applicant was involved in the activities of a
criminal organization described by the provision.
The analysis may require identifying the organization, the
relevant Canadian offences and their essential elements, and assessing the
evidence against those requirements.
The standard of “reasonable grounds to believe” requires more than suspicion but less than proof on a balance of probabilities.
Ø Background
The applicant was a citizen of the Republic of the Congo and
the son of the Congolese president. He became a majority private shareholder in
Socotram, a national shipping company, and later became its CEO.
He had been married to a Canadian citizen since 1999 and had
seven Canadian children living in Montreal. His permanent residence application
was eventually refused on organized criminality grounds.
The officer’s first decision had been overturned because she
had failed to identify the criminal organization and the Canadian offences
involved. The matter was returned for redetermination.
In the second decision, the officer identified an
organization involving the applicant, Socotram, its directors, related
companies, and other individuals. She concluded that the organization was
involved in activities including fraud, tax evasion, and laundering proceeds of
crime, and that the applicant knowingly and repeatedly participated in those
activities for his personal benefit.
Ø Court Findings
The Federal Court found that the second decision was
reasonable.
The Court found that the officer had properly identified the
organization and the relevant Canadian offences, including fraud under
section 380 of the Criminal Code, tax evasion under subsection 239(1) of the
Income Tax Act, and laundering proceeds of crime under subsection 462.31(1) of
the Criminal Code.
The Court accepted that the term “organization” in
paragraph 37(1)(a) is interpreted flexibly and can encompass a variety of
organized groups, including groups that may also have legitimate purposes or
activities.
The officer reasonably relied on evidence concerning the
applicant’s substantial personal enrichment, excessive compensation, transfers
of corporate funds, corporate structures in Luxembourg, and his refusal to
provide important documents such as his employment contract and tax records.
The Court also rejected the argument that the activities had
to constitute criminal offences in the country where they occurred. For the
purposes of the provision, the officer was entitled to assess whether the
conduct, if committed in Canada, would constitute the relevant federal
indictable offences.
The Court further found that the applicant had received
sufficient procedural fairness. He had been interviewed for approximately four
hours, received detailed questions and concerns, and had several opportunities
to provide evidence and explanations. The officer was not required to provide a “running score” of every concern or disclose the precise final
composition of the organization in advance.
Ø Outcome
The Federal Court dismissed the application for judicial
review.
The Court also certified a question concerning
whether paragraph 37(1)(a) requires evidence that the conduct alleged to
constitute an offence in Canada must also constitute a criminal offence in the
country where it occurred.
Case Citation:
Nguesso v. Canada (Citizenship and Immigration), 2016 FC 1295 CanLII
Prepared by:
Dr. Muhammad
Abrar (Barrister and
Solicitor)
Author | Writer | Mentor | Legal Researcher | Canadian
Immigration Case Law and Statistics Analyst
