Cherryl Red sought judicial
review after an immigration officer refused her permanent residence application
under the Live-in Caregiver class. The officer found her inadmissible under
paragraph 36(2)(c) of the IRPA because she had signed two cheques in the
Philippines that were later dishonoured. The Federal Court found the decision
unreasonable because the officer failed to adequately determine whether her
conduct constituted offences in the Philippines and Canada.
Key Principle
A finding of criminal
inadmissibility under paragraph 36(2)(c) of the IRPA requires more than
identifying conduct associated with a foreign criminal charge. The
decision-maker must reasonably address whether the act committed was an offence
where it occurred and whether the same conduct, if committed in Canada, would
constitute an indictable offence under federal law. Contrary evidence
concerning the elements of the alleged offences must be meaningfully addressed.
Background
Red, a Philippine citizen, came
to Canada as a live-in caregiver in 2012 and applied for permanent residence in
2015.
In 2009, her former boyfriend
obtained a loan from AsiaLink Finance Corporation. Red signed as a guarantor
and signed blank cheques connected with the loan. All parties knew the account
contained no funds. Red understood that her former boyfriend would make the
repayments, but he failed to do so and two cheques were dishonoured.
A Philippine charge was brought
under Batas Pambansa Bilang 22. However, AsiaLink later filed an Affidavit of
Desistance stating that the complaint resulted from misaccounting and
misapprehension of facts. The court withdrew the charge.
The immigration officer
nevertheless concluded that Red had committed an offence in the Philippines and
that the same conduct would constitute an offence under subsection 362(1) of
the Canadian Criminal Code.
Court Findings
• Foreign Offence Was Not
Properly Analyzed
The officer relied generally on
the Philippine bouncing-cheque law and the existence of the original charge
without analyzing its elements. The Affidavit of Desistance and court order
directly undermined the conclusion that an offence had occurred. A conviction
is unnecessary, but reasonable grounds were still required to believe the
offence had been committed.
• Canadian Equivalency
Analysis Was Inadequate
The officer stated that Red’s
conduct would constitute an offence under subsection 362(1) of the Criminal
Code but did not identify the applicable provision or analyze its required
elements. There was no explanation of fraudulent intent or an intention to
induce reliance on a false statement.
The evidence showed that all
parties knew the account lacked funds when the cheques were signed and that Red
believed her former boyfriend would make the payments. The officer failed to
explain how these facts established a Canadian offence.
• Reasons Lacked Transparency
and Intelligibility
Although GCMS notes formed part
of the decision, the officer still had to identify the critical reasoning
supporting each element of paragraph 36(2)(c). The failure to connect the
evidence to the foreign and Canadian offences left both Red and the Court to
speculate about the reasoning.
Outcome
The Federal Court granted
judicial review, set aside the inadmissibility decision and remitted the matter
to a different officer for redetermination. No question of general importance
was certified.
Case
Citation:
Red v. Canada (Citizenship and Immigration), 2018 FC 1271 (CanLII)
Prepared by:
Dr. Muhammad Abrar (Barrister and Solicitor)
Author | Writer | Mentor | Legal Researcher | Canadian Immigration Case Law and Statistics Analyst
