CITIZENSHIP AND IMMIGRATION
Exclusion and Removal
Inadmissible Persons
Judicial review of Immigration and Refugee Board’s decision applicant inadmissible to Canada under Immigration and Refugee Protection Act for having committed offence in U.S. which, if committed in Canada, would constitute offence under Criminal Code punishable by maximum 10 years’ imprisonment—Applicant, Pakistani, legally working in U.S. before claiming refugee status in Canada—While in U.S., applicant applying for bank loan under Small Business Administration (SBA) to buy convenience store and gas station—In loan application, deliberately misstating net worth —Loan secured by mortgage, guaranteed by SBA— Eventually paid in full—Applicant pleading guilty to making false statement for purposes of obtaining loan under SBA under United States Code, sentenced to fine, two months’ imprisonment—Immigration and Refugee Protection Act, s. 36(1)(c) providing foreign national inadmissible for committing act outside of Canada that, if committed in Canada, constituting offence punishable by maximum 10 years’ imprisonment—Canadian equivalent of U.S. crime is Criminal Code, s. 362(1)(c)(iii)—U.S. offence much broader in scope than Canadian offence since, inter alia, U.S. misrepresentation might not be limited to person’s financial condition, means—Text of U.S. offence covering narrower Canadian offence in Code, s. 362(1)(c)(iii)—Real difference in case law—In Canada, false representation must be “operative”, i.e. causal relationship must exist between misrepresentation and loan—Case requiring determination of criminal offence equivalency—Equivalency established by determining essential ingredients of Canadian, foreign offences; determining whether evidence sufficient to establish proof of essential ingredients of Canadian offence in foreign proceedings—Board correctly finding that victim having to place detrimental reliance on fraudulent misrepresentation in Canadian offence, whereas “operability” (detrimental reliance) not essential element in American offence—However, unreasonable for Board to infer applicant’s false representation operable, given lack of evidence from SBA— SBA’s taste for risk not analysed—Fact loan made not proving reliance on false misrepresentation—Bank’s guidelines only link in record between representation and loan—Record not suggesting SBA as secured creditor would not have guaranteed loan despite misrepresentation—No basis for concluding acts committed outside Canada by applicant constituting offence punishable by maximum term of at least 10 years if committed in Canada—Application allowed— Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 36(1)(c)—Criminal Code, R.S.C., 1985, c. C‑46, s. 362(1)(c)(iii) (as am. by S.C. 2003, c. 21, s. 5).
Dhanani v. Canada (Minister of Citizenship and Immigration) (IMM‑3860‑04, 2005 FC 169, Harrington J., order dated 3/2/05, 11 pp.)