Nguesso v. Canada (Citizenship and Immigration)

Nguesso v. Canada (Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2015-07-17
Neutral citation
2015 FC 879
File numbers
IMM-1144-14
Decision Content
Date: 20150717
Docket: IMM-1144-14
Citation: 2015 FC 879
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, July 17, 2015
PRESENT: The Honourable Madam Justice Bédard
BETWEEN:
WILFRID NGUESSO
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
JUDGMENT AND REASONS
[1] This is an application for judicial review of a decision rendered on December 20, 2013, by Constance Terrier (the officer), an immigration officer with the Immigration Section of the Canadian Embassy in Paris (the Immigration Section). In her decision, the officer declared the applicant inadmissible on grounds of organized criminality under paragraph 37(1)(a) of the Immigration and Refugee Protection Act, SC 2001, c 27 (IRPA), and she refused his application for permanent residence as a member of the family class. For the following reasons, the application is allowed.
I. Background [2] The applicant is a citizen of the Republic of the Congo (Congo), but during the relevant period, he resided in France, where he holds a residency permit that is valid until December 31, 2022. The applicant is the nephew and adopted son of Denis Sassou-Nguesso (DSN), who is the president of Congo. He is married to a Canadian citizen, with whom he has six children, all Canadian citizens.
[3] In 2006, the applicant’s wife and four of their children moved to Montréal. On December 27, 2006, the applicant filed an application for permanent residence under the family class with the Immigration Section. It was this application that was refused on December 20, 2013. Between 2006 and the refusal of his permanent residence application, the applicant obtained several temporary resident visas enabling him to visit his family in Canada.
[4] The processing of the applicant’s permanent residence application took seven years and was marked by various events. It is not necessary to describe each step of the process in detail, but since several breaches of the duty of procedural fairness have been raised, it will be useful to provide an overview of some of the steps involved in processing the application. It will also be useful to highlight some of the facts in the record that are not contested but that are relevant to understanding the nature of the disputes between the parties.
[5] In 1989, the Congolese government created a national marine transportation company, the Société Congolaise de Transports Maritimes (Socotram), with two private partners, SAGA and ELF Congo. The Congolese government held 45% of the shares, SAGA 49% and ELF Congo 6%. Socotram’s main objective is to develop a domestic shipping fleet. In May 1990, the Congolese government designated Socotram [translation] “a national shipping company” and granted the company all of its traffic rights.
[6] In 1998, after DSN had returned to power, the Congolese government granted Socotram the right to appropriate at least 40% of the marine traffic rights generated by foreign trade to and from Congo.
[7] In 1998, W.G.N. Trading and Shipping Negoce International S.A. (TS), a company created in 1995 in which the applicant is the sole shareholder, purchased all of the Socotram shares held by SAGA and ELF Congo. The applicant therefore became, through TS, Socotram’s majority private shareholder. He was also appointed Socotram’s Director of Transportation.
[8] In 2004, TS sold its Socotram shares to the Guinéa Gulf Shipping Company S.A. (GGSC), but the applicant remained in Socotram’s employ, and, in June 2005, he was appointed Chief Executive Officer (CEO).
[9] The applicant had interests in other companies aside from TS, including S.C.I. St. Philibert (St. Philibert), Matsip Consulting S.A. (Matsip), Trading and Shipping S.A., International Shipping S.A. and S.C.I. Canaan Canada (Canaan).
[10] The record also shows the following facts relating to the processing of the applicant’s file by the Immigration Section, and more specifically by the officer who processed his permanent residence application.
[11] In February 2008, the Security Intelligence Background Section of the Canadian Embassy in Paris (Section B) asked the war crimes and organized crime sections of the Canada Border Services Agency (CBSA) to verify whether the applicant’s activities or associations rendered him inadmissible to Canada. The request indicated, among other things, that the applicant was the son of DSN; that he was CEO of Socotram, the principal shareholder of which was his company TS; and that he was president of the Club 2002-Pur, an association supporting DSN that became a political party in January 2007. The request also specified that the origins of President DSN’s wealth, particularly his assets in France, was the subject of an investigation by the French police, following a complaint filed by associations regarding allegations of theft for the embezzlement of public funds (this investigation is known in France as the investigation into [translation] “ill-gotten gains”). The request specified that the applicant’s name appeared several times in this complaint and that some of the assets obtained through questionable funding were allegedly in his name. The request also mentioned that open sources spoke of [translation] “clannish, family-centred” management of power in Congo, presenting the applicant as being very close with President DSN. The applicant was not informed of the requests made to the CBSA.
[12] On April 14, 2008, the CBSA’s War Crimes Section concluded that there was insufficient evidence to establish that the applicant was inadmissible to Canada for war crimes under section 35 of the IRPA. However, it recommended that the file be referred for screening under section 37 of the IRPA because of the [translation] “opaque” transactions of Socotram and TS.
[13] On April 24, 2008, an email sent by an officer of the CBSA’s Organized Crime Section to an officer of Section B highlighted major concerns about the origins of the applicant’s properties and financial sources and suggested that additional information be obtained from the applicant.
[14] On May 13, 2008, the immigration officer responsible for the file at the time sent a letter to the applicant asking him to provide certain documents and information. The applicant sent some of the requested documents to the Immigration Section on August 1, 2008.
[15] The officer, Constance Terrier, was assigned to the applicant’s file in August 2008.
[16] On January 14, 2009, the Financial Transactions and Analysis Centre (FINTRAC) prepared a report and disclosure regarding several electronic transfers of funds involving the applicant. The report indicated that FINTRAC had reasonable grounds to believe that some of the information was relevant in the context of a potential money laundering offence. The report also mentioned that FINTRAC believed that some of the information was relevant to the determination of whether an individual was inadmissible under sections 34 to 42 of the IRPA. This report was sent to the CBSA on January 14, 2009, and forwarded to Section B on May 4, 2009.
[17] On July 27, 2009, a representative of the CBSA’s Organized Crime Section sent an email to Guy Langevin, an officer with Section B, in which he stated that despite lingering concerns regarding the links between the applicant and DSN, there was insufficient evidence that illegal activities had been committed. He concluded by indicating that the Organized Crime Section would be closing the file “pending further intelligence”.
[18] A note entered into the Global Case Management System (GCMS) on October 29, 2009, by Mr. Langevin of Section B states that the file is still being studied by the CBSA’s Organized Crime Section.
[19] The notes entered in the GCMS show no progress in the file between October 2009 and early March 2011.
[20] On March 3, 2011, the applicant’s counsel at the time announced her intention to file a mandamus application to force the Immigration Section to render a decision on the applicant’s permanent residence application.
[21] On April 5, 2011, FINTRAC prepared a second report on electronic transfers of funds involving the applicant, indicating that he was a “politically exposed foreign person” within the meaning of section 9.3 of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, SC 2000, c 17 (PCMLA).
[22] On August 12, 2011, the officer communicated with the investigating judge responsible for the investigation into the [translation] “ill-gotten gains”. He informed her that he was bound by professional privilege, but that the investigation was moving forward and that it should reach its conclusion in early 2012.
[23] On May 22, 2012, the applicant’s counsel filed a mandamus application with this Court (Docket IMM-4924-12), to force the Immigration Section to render a decision on the applicant’s permanent residence application. This dispute was settled out of court on July 3, 2012, on the basis of a timetable proposed by the respondent to complete the processing of the applicant’s permanent residence application. It was established that the applicant would be called to an interview.
[24] On September 5, 2012, the applicant received a letter from the Immigration Section about concerns regarding his admissibility under paragraph 37(1)(a) of the IRPA. The letter indicated that the Immigration Section was concerned about the applicant’s experience, knowledge and advancement in the professional world. The letter also mentioned specific concerns in connection with an alleged appropriation of proceeds from the sale of petroleum products. The letter contained the following excerpt:
[translation]
We have reasonable grounds, supported by open, convergent and consistent documentation, to believe that you may belong to a group of persons embezzling part of Congo’s national petroleum production, appropriating the proceeds of the resale of petroleum products and participating in the embezzlement of public property to the detriment of the Congolese state.
We have reasonable grounds to believe that these transactions arose from a corporate structure involving a small number of individuals belonging to a single clan and closely related companies held and directed by the same small number of individuals.
Finally, we have questions about a number of electronic transfers of funds made between November 2005 and October 2008, considered suspect by FINTRAC, the Financial Transaction and Reports Analysis Centre of Canada.
You will be asked to provide additional documents at the end of the interview.
[25] The applicant’s interview with the officer took place on September 25, 2012, and lasted about four hours, during which he was asked about 170 questions. It appears from the record that the officer prepared some of the interview questions and that several other questions were prepared by the CBSA.
[26] On September 28, 2012, the Immigration Section sent the applicant a letter in which it was indicated that based on statements made during the interview of September 25, 2012, the Immigration Section had concerns about his revenues, the companies in which he previously or still held shares, the nature of his contract of employment and the success of his businesses. The letter was accompanied by a six-page list of documents and information to be provided regarding the subjects raised during the interview, requesting that they be submitted within 90 days.
[27] On November 1, 2012, the CBSA prepared a report and a recommendation regarding the possibility that the applicant was inadmissible under paragraph 37(1)(a) of the IRPA. The report refers to two FINTRAC reports and information provided by the applicant during his interview. The CBSA concluded, after a thorough review, that despite suspicions that the applicant might be involved in embezzlement and money laundering activities, there was not enough evidence to meet the standard of “reasonable grounds to believe” that he was inadmissible on grounds of organized criminality.
[28] On January 28, 2013, the Immigration Section was informed of a change of counsel; from that point on, the applicant was represented by Johanne Doyon.
[29] On February 1, 2013, Ms. Doyon asked for additional time to respond to the requests formulated on September 28, 2012, by the Immigration Section. She also asked to be provided with the documents referred to in the fairness letter of September 5, 2012, indicating that under the rules of procedural fairness, these should have been disclosed to the applicant before the interview of September 25, 2012.
[30] On February 27, 2013, the officer replied to the letter of February 1, 2013, by a letter dated February 1, 2013. In her letter, she extended the applicant’s deadline for submitting the requested documents to April 30, 2013. However, she refused to disclose the documents and information that Ms. Doyon had requested on the grounds that [translation] “at this stage of the process, there is no requirement to provide all of the sources or copies of the documents consulted, given that your client has been provided with a reasonable opportunity to review the information which we intend to use as a basis for our decision.” The officer did, however, provide Ms. Doyon with her notes from the interview of September 25, 2012, as well as her analysis of the interview.
[31] On April 30, 2013, the applicant, by way of Ms. Doyon, filed a complaint with the Director of the Immigration Section. In the complaint, she alleged several breaches of procedural fairness in the processing of the applicant’s file, in particular the refusal to disclose the documents mentioned in the letter of September 5, 2012. Ms. Doyon also invoked bad faith on the part of the immigration officers in processing the applicant’s file and the way in which the interview of September 25, 2012, was conducted. More specifically, Ms. Doyon asked that the officer no longer be assigned to the applicant’s file and that her interview notes be withdrawn from the record. In the same letter, Ms. Doyon enclosed some of the documentation that had been requested in the letter of September 28, 2012.
[32] This complaint was dismissed by Rénald Gilbert, the Immigration Section’s Immigration Program Manager, in a letter dated December 6, 2013. Mr. Gilbert wrote that the officer would finish processing the applicant’s permanent residence application and that her interview notes would not be withdrawn from the record. He also concluded that there had been no breach of the rules of procedural fairness.
[33] On May 13, 2013, the officer again contacted the office of the investigating judge responsible for the [translation] “ill-gotten gains” investigation, but no information was provided to her because of the confidentiality of the investigation.
[34] On December 20, 2013, the officer refused the applicant’s permanent residence application and declared him inadmissible on grounds of organized criminality.
II. The impugned decision [35] Inadmissibility on grounds of organized crime is governed by paragraph 37(1)(a) of the IRPA:
Organized criminality
Activités de criminalité organisée
37(1) A permanent resident or a foreign national is inadmissible on grounds of organized criminality for
(1) Emportent interdiction de territoire pour criminalité organisée les faits suivants :
(a) being a member of an organization that is believed on reasonable grounds to be or to have been engaged in activity that is part of a pattern of criminal activity planned and organized by a number of persons acting in concert in furtherance of the commission of an offence punishable under an Act of Parliament by way of indictment, or in furtherance of the commission of an offence outside Canada that, if committed in Canada, would constitute such an offence, or engaging in activity that is part of such a pattern; or
a) être membre d’une organisation dont il y a des motifs raisonnables de croire qu’elle se livre ou s’est livrée à des activités faisant partie d’un plan d’activités criminelles organisées par plusieurs personnes agissant de concert en vue de la perpétration d’une infraction à une loi fédérale punissable par mise en accusation ou de la perpétration, hors du Canada, d’une infraction qui, commise au Canada, constituerait une telle infraction, ou se livrer à des activités faisant partie d’un tel plan;
[36] In her decision, the officer concluded that she had reasonable grounds to believe that the applicant was a member of a criminal organization through his family connections, which had enabled him to occupy positions unrelated to his education and contribute to a system of embezzlement, misappropriation of company property, money laundering and opaque financial arrangements for personal enrichment at the expense of corporations. She added that she had reasonable grounds to believe that the applicant was involved in organized criminality that was part of a pattern of criminal activity organized by a number of persons acting in concert in furtherance of the commission of offences of embezzlement, misappropriation of company property and money laundering that, if committed in Canada, would constitute such offences.
[37] The officer noted that her conclusions were based on the position held by the applicant within Socotram and the benefits granted to him by Socotram or other companies with which he was connected. The officer then discussed the elements that had led her to these conclusions.
[38] First she indicated that she had doubts about the honesty of the transaction that resulted in the applicant, through TS, acquiring the Socotram shares held by SAGA and Elf-Congo. She wrote that she had reasonable grounds to believe that this transaction had been arranged or influenced by DSN after his return to power in Congo, when he was [translation]“placing” those close to him in various key positions.
[39] She went on to state that she had reasonable grounds to believe that the applicant’s appointment as Socotram’s Director of Transportation was based more on his connection to DSN than his personal merits or qualifications for the position, that his remuneration was not based on his professional activities and that the benefits he received were for his personal enrichment, to the detriment of Socotram’s activities. She added that she had reasonable grounds to believe that his joining Socotram represented a desire to take control of a financially rich structure and bring it into the Nguesso family’s sphere of influence for the purpose of personal enrichment.
[40] The officer also indicated that she did not believe the applicant’s statement during the interview to the effect that he did not know the individuals behind GGSC and that he had sold his shares in Socotram through the transfer of the shares held by TS to GGSC. She noted that the documents provided by the applicant established that GGSC and TS had the same corporations as administrators or shareholders and that their head offices were in the same building. She also indicated that these companies had ties with Alain Sereyjol-Garros (ASG) or his fiduciary holdings and noted that she had reasonable grounds to believe that the applicant had withheld information at the interview by failing to indicate that he had ties with the various companies that were the majority private shareholders of Socotram. She also wrote that the companies’ corporate structure was nebulous and confusing and that its purpose was to hide the true identity of the shareholders. She inferred that the applicant was the sole shareholder in control of Socotram and that the complex corporate structures had been set up by ASG, acting on his behalf.
[41] The officer also concluded that she had reasonable grounds to believe that Socotram’s funds had been used for activities whose purpose was to enrich the applicant rather than to advance its corporate purpose, through the purchase of assets and transfer of funds for his benefit and for the benefit of companies in which he held shares.
[42] She then indicated that she had reasonable grounds to believe that the applicant was a member of a criminal organization through his involvement in a montage of companies, the organized and criminal nature of which was corroborated by the presence and involvement of ASG, who was known for his ability to disperse assets in a complex layer of financial and fiduciary transactions for the purpose of masking the origins of the investments and the identity of their true holders. She added that using tax havens is not in itself illegal, but that using tax havens to launder money constitutes organized criminality. She added that the financial structures, through trust companies, constituted an asset concealment system to perpetrate planned financial fraud and money laundering with the support of an illegal organization.
[43] She concluded by stating that she had reasonable grounds to believe that the applicant was involved in criminal activity (embezzlement, misappropriation of company property and money laundering) that was supported by a structured and deliberate plan and that he had directly participated, conscientiously and repeatedly, in these financial structures and activities.
III. First preliminary issue – the striking of the applicant’s supplementary affidavits [44] The respondent submits that the supplementary affidavits filed by the applicant should be struck. He submits that the right to file an affidavit was limited by the parameters that I had set out in the order of January 26, 2015, namely, to that needed to introduce in evidence documents that were not included in the Certified Tribunal Record (CTR) and that the applicant considered relevant to support the grounds raised in his application for judicial review.
[45] The respondent argues that the affidavit filed by Amélie Charbonneau on May 15, 2015, is not limited to introducing exhibits and contains several arguments in support of the application for judicial review, as well as a biased repetition of the facts already appearing in the court record. The respondent relies on Canada (Attorney General) v Quadrini, 2010 FCA 47 at para 18, [2010] FCJ No 194 [Quadrini], in which the Court set out that “the purpose of an affidavit is to adduce facts relevant to the dispute without gloss or explanation”. He adds that some of the exhibits filed in support of the affidavit should not be authorized either, in particular Exhibits G, H, I and J, on the grounds that they were not authorized by the order of January 26, 2015.
[46] The respondent also alleges that the applicant’s supplementary affidavit, also filed on May 15, 2015, was not authorized by the Court and should be struck.
[47] The applicant submits that his supplementary affidavit is authorized by the order that I issued on March 20, 2015, in which I set a new timetable and authorized the filing of an additional memorandum and affidavit. I agree and find that there is no reason to strike the affidavit.
[48] As for Ms. Charbonneau’s affidavit, the applicant submits that its purpose was to relate facts, not to issue opinions, and Ms. Doyon indicated during the hearing that she would not object to having the Court ignore anything that could be considered an opinion.
[49] The principles taught in Quadrini are clear: an affidavit must set out facts and not its author’s opinions. I do not consider it necessary to analyze each paragraph of Ms. Charbonneau’s affidavit; it will suffice to state that I intend to ignore any statement in the affidavit that may fall outside the framework of neutral factual statements. As for Exhibits G to J, I do not consider it necessary to declare them inadmissible, even though they were not helpful to my analysis of the record.
IV. Second preliminary issue: the applicability of the clean hands doctrine [50] In his supplementary memorandum, the respondent argues that the applicant is not addressing the Court with “clean hands”, as the latter made several false statements and provided several contradictory stories, particularly between his permanent residence application form, the information he gave during his interview with the officer and the information contained in the documents he submitted. The respondent submits that, among other things, the applicant provided conflicting information about his places of residence, especially during the period he was living in Gabon; the activities of TS; the shares he holds or has held in various other companies; property purchased by Socotram in Canada for his benefit and grants allegedly received by Socotram.
[51] The respondent adds that the applicant refused to submit several documents that were asked of him and that were relevant to the analysis of his permanent residence application, particularly those listed in the letter of September 28, 2012.
[52] The respondent alleges that a reviewing court may exercise its jurisdiction by refusing to hear an application for judicial review on the merits or refusing to grant the remedy sought where the applicant has acted dishonestly, illegally or in bad faith. The respondent maintains that the applicant lied on several occasions to the Canadian immigration authorities and voluntarily withheld facts from the authorities relating to important elements, and that he therefore deliberately misled or attempted to mislead the immigration authorities on many points. The respondent submits that this conduct undermines the integrity of the immigration system. The Court should therefore use its discretion to dismiss the application for judicial review without considering it on the merits.
[53] The respondent bases this position on subsection 16(1) of the IRPA and on the case law, including Canada (Minister of Citizenship and Immigration) v Thanabalasingham, 2006 FCA 14, [2006] FCJ No 20 [Thanabalasingham] and Dong v Canada (Minister of Citizenship and Immigration), 2011 FC 1108, [2011] FCJ No 1370.
[54] The applicant, on the other hand, submits that he has not made any misrepresentations and that the clean hands doctrine does not apply in his case. He adds that the officer did not declare him inadmissible on the basis of alleged misrepresentations. He insists on the fact that the respondent is focusing on minor errors that have no incidence on the dispute.
[55] An application for judicial review is a recourse that involves judicial discretion. If the applicant does not come to the Court with “clean hands”, the Court may dismiss the application without determining the merits, but it is not obliged to do so. In exercising its discretion, the Court must instead try to strike a balance between the attack on the integrity of the process brought about by the applicant’s misconduct and the public interest in ensuring the lawful conduct of government (Thanabalasingham, at paras 9-10). In this case, I find that the application raises serious issues and has a significant impact on the applicant and his family. I am of the view that the interests of justice will be better served if I decide on the merits of this application for judicial review filed against the decision refusing the applicant’s permanent residence application and declaring him inadmissible.
[56] Furthermore, the contradictions and conduct of which the respondent criticizes the applicant were in part considered by the officer and are relevant to the issue of whether the rules of procedural fairness were violated and whether the officer’s decision was reasonable. It seems to me that it would be more appropriate to deal with them in that context.
V. Issues [57] This application for judicial review raises the following issues:
1. Was the process that led to the decision tainted by breaches of procedural fairness?
2. Did the officer commit errors of law that warrant this Court’s intervention?
3. Did the officer commit errors in her assessment of the applicant’s permanent residence application that warrant this Court’s intervention?
VI. Standards of review [58] The standard of review applicable in matters of procedural fairness is correctness (Canada (Minister of Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 43, [2009] 1 SCR 339; Mission Institution v Khela, 2014 SCC 24 at para 79, [2014] 1 SCR 502). The issue to be determined is not whether the decision was correct, but rather whether the process followed by the decision-maker was fair (Majdalani v Canada (Minister of Citizenship and Immigration), 2015 FC 294 at para 15, [2015] FCJ No 459; Krishnamoorthy v Canada (Minister of Citizenship and Immigration), 2011 FC 1342 at para 13, [2011] FCJ No 1643 [Krishnamoorthy]; Pusat v Canada (Minister of Citizenship and Immigration), 2011 FC 428 at para 14, [2011] FCJ No 541 [Pusat]).
[59] I am also of the view that the standard of reasonableness should be applied to the errors of law alleged by the applicant. All of the errors raised relate to how the officer should have interpreted and applied paragraph 37(1)(a) of the IRPA and section 33, which establishes the “reasonable grounds to believe” standard.
[60] In Agraira v Canada (Minister of Public Safety and Emergency Preparedness), 2013 SCC 36 at paras 49-50, [2013] 2 SCR 559 and Canadian National Railway Co. v Canada (Attorney General), 2014 SCC 40 at paras 55-62, [2014] 2 SCR 135, the Supreme Court applied the presumption that the standard of reasonableness is applicable to issues that involve a decision-maker interpreting its own statute or statutes closely connected to its function in non-jurisdictional contexts.
[61] It is well established that the application of the “reasonable grounds to believe” standard by an immigration officer to the circumstances of a case involves questions of mixed fact and law reviewable on a standard of reasonableness (Torre v Canada (Minister of Citizenship and Immigration), 2015 FC 591 at para 15, [2015] FCJ No 601; Dunsmuir v New Brunswick, 2008 SCC 9 at para 51, 53, [2008] 1 SCR 190; Thanaratnam v Canada (Minister of Citizenship and Immigration), 2005 FCA 122 at paras 32-33, [2005] FCJ 587 [Thanaratnam]).
VII. Analysis A. Procedural fairness [62] The applicant submits that broad procedural protections are required in this case because of the enormous impact on his family of the decision to declare him inadmissible. He raises the failed family reunification resulting from this decision and negative impact on his children’s constitutional right to remain in Canada.
[63] The respondent submits that the content of the duty of procedural fairness is variable, and its purpose is to ensure that the person concerned receives a fair hearing. It maintains that the content of the duty of fairness owed by a visa officer is at the lower end of the spectrum, since the interests at stake are less important than in other circumstances and that the issuing of a permanent resident visa is a privilege, not a right.
[64] In Baker v Canada (Minister of Citizenship and Immigration, [1999] 2 SCR 817 at paras 21, 33, [1999] SCJ No 39 [Baker], the Supreme Court of Canada recalled that the content of the duty of procedural fairness is variable and flexible and must be considered in context. At paragraph 30, the Court notes that “[a]t the heart of this analysis is whether, considering all the circumstances, those whose interests were affected had a meaningful opportunity to present their case fully and fairly.” The Court did not dictate the content of the duty of fairness, but it did identify factors to consider in determining the scope of the duty in a given context. These factors were summarized in Congrégation des témoins de Jéhovah de St-Jérôme-Lafontaine v Lafontaine (Village), 2004 SCC 48, [2004] 2 SCR 650 at para 5:
The content of the duty of fairness on a public body varies according to five factors: (1) the nature of the decision and the decision-making process employed by the public organ; (2) the nature of the statutory scheme and the precise statutory provisions pursuant to which the public body operates; (3) the importance of the decision to the individuals affected; (4) the legitimate expectations of the party challenging the decision; and (5) the nature of the deference accorded to the body: Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817. . . .
[65] The case law also generally recognizes that the scope of the duty of fairness owed by a visa officer is at the lower end of the spectrum. In Khan v Canada (Minister of Citizenship and Immigration), 2001 FCA 345, at paras 31-32, [2001] FCJ No 1699 [Khan], the Federal Court of Appeal wrote the following:
31 The factors tending to limit the content of the duty in the case at bar include: the absence of a legal right to a visa; the imposition on the applicant of the burden of establishing eligibility for a visa; the less serious impact on the individual that the refusal of a visa typically has, compared with the removal of a benefit, such as continuing residence in Canada; and the fact that the issue in dispute in this case (namely, the nature of the services that Abdullah is likely to require in Canada and whether they would constitute an excessive demand) is not one that the applicant is particularly well placed to address.
32 Finally, when setting the content of the duty of fairness appropriate for the determination of visa applications, the Court must guard against imposing a level of procedural formality that, given the volume of applications that visa officers are required to process, would unduly encumber efficient administration. The public interest in containing administrative costs and in not hindering expeditious decision-making must be weighed against the benefits of participation in the process by the person directly affected.
[See also Fouad v Canada (Minister of Citizenship and Immigration), 2012 FC 460 at para 14, (sub nom Al-Ghazali v Canada (Minister of Citizenship and Immigration)) [2012] FCJ No 768.]
[66] It should also be kept in mind that a decision on inadmissibility does not involve the exercise of a discretionary power. This factor militates in favour of a greater scope for the duty of fairness. In this respect, I consider the comments of Justice Dawson in Mekonen v Canada (Minister of Citizenship and Immigration), 2007 FC 1133 at paras 16-17, [2007] FCJ No 1469 [Mekonen] to be applicable to this case:
16 The decision with respect to inadmissibility is not an exercise of discretion. Officers are instructed to obtain evidence for subsection 34(1) decisions by collecting police or intelligence reports, statutory declarations supported by evidence of statements made to an officer, and other documentary evidence including media articles, scholarly journals, and expert reports.
17 The objective nature of the decision and the lack of any appeal procedure militate in favor of greater content to the duty of fairness.
[67] One must also consider the particular circumstances of the case and the significant impact that the decision declaring the applicant inadmissible and refusing his permanent residence application has had on his family. This decision prevents the family’s permanent reunification in Canada, despite the fact that the applicant’s wife and children are Canadian citizens. This particular circumstance militates in favour of a duty of fairness more extensive than that owed, for example, to a visa applicant who is not in this situation (AB v Canada (Minister of Citizenship and Immigration), 2013 FC 134 at para 55, [2013] FCJ No 166 [AB]).
[68] Specifically, the applicant has two principal grounds for claiming that his right to procedural fairness was violated: (1) his permanent residence application was refused on grounds of inadmissibility other than those disclosed to him and the officer failed to disclose documents and/or information relevant to the decision before her; and (2) his file was handled improperly and unfairly overall and the conduct of the officer and other employees in the Immigration Section raises a reasonable apprehension of bias.
(1) Failure to disclose the proposed grounds of inadmissibility as well as certain documents and information (a) Applicant’s arguments [69] The applicant alleges that the grounds of inadmissibility relied on by the officer were not disclosed to him before she rendered her decision and that the officer never disclosed to him the true nature of the alleged inadmissibility.
[70] On this point, he submits that the fairness letter of September 5, 2012, sent before the interview that was held on September 25, 2012, raised the possibility of inadmissibility based on concerns that he might [translation] “belong to a group of persons embezzling part of Congo’s national petroleum production, appropriating the proceeds of the resale of petroleum products and participating in the embezzlement of public property to the detriment of the Congolese state”.
[71] The applicant submits that the grounds of inadmissibility relied on by the officer and mentioned in her decision are completely different from those raised in the letter; the officer found that there were reasonable grounds to believe that he was involved in a structure of companies organized in connection with ASG for the purpose of hiding assets, laundering money and committing tax fraud, embezzlement and misappropriation of public property.
[72] The applicant also submits that the letter sent to him on September 28, 2012, after the interview, did not raise any new concerns, but simply asked for additional information.
[73] The applicant adds that ASG’s name was never communicated to him before he received the decision and that the officer had never informed him that she had concerns about his alleged ties to ASG. He submits that the officer had a duty to inform him of her concerns, even if they were prompted by documents that he himself submitted after the interview.
[74] He therefore states that he was not presented with the concerns and doubts that formed the basis of the officer’s decision and that he never had the opportunity to address them and respond.
[75] The applicant also submits that the officer herself admitted that she had changed the grounds for inadmissibility when she indicated that the documents he had sent on and after April 30, 2013, had [translation] “provided new leads”. The officer also admitted that she had learned about ASG’s existence by reading the documents the applicant had sent her on April 30, 2013.
[76] The applicant adds that the unfair treatment has continued into the judicial review proceedings, with the respondent relying on undisclosed documents to justify the officer’s decision on the basis of reasons other than those mentioned in the decision. The applicant argues that the respondent is now claiming that the criminal organization to which he is accused of belonging is allegedly made up of himself and his companies, President DSN, the administrators of Socotram and ASG. This organization was identified for the first time not in the officer’s decision, but rather in the respondent’s memorandum.
[77] The applicant alleges that the officer failed to disclose not only the true nature of the grounds of inadmissibility, but also the documents and information relevant to the processing of his application. Therefore, he was denied the opportunity to verify the accuracy of the information on which she was relying, to make full answer and defence against the allegations and to participate in a meaningful manner in the decision-making process.
[78] Among other things, the applicant accuses the officer of having failed to disclose to him several useful documents and pieces of information before the interview, particularly the [translation] “open, convergent and consistent documentation” referred to in the fairness letter of September 5, 2012, and the nature of the electronic transfers of funds that FI