Ottawa, Ontario, March 21, 2005
PRESENT: THE HONOURABLE MADAM JUSTICE HENEGHAN
BETWEEN:
DIMITAR NIKLOV ILIEV, also known as DIMITAR NIKOLOV ILIEV
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] Mr. Dimitar Niklov Iliev, also known as Dimitar Nikolov Iliev (the "Applicant") seeks judicial review of the decision, dated February 5, 2004, of the Immigration and Refugee Board, Refugee Protection Division (the "Board"). In its decision, the Board granted the request of the Minister of Citizenship and Immigration (the "Respondent") to vacate the finding that the Applicant was a Convention refugee.
[2] The Applicant, a citizen of Bulgaria, came to Canadain 1996. He claimed to be a Convention refugee and following a hearing before the Convention Refugee Determination Division in October 1997, was found to be a Convention refugee in January 1998. In May 2002, the Respondent obtained leave to commence an application to vacate the determination by the Convention Refugee Determination Division.
[3] The Respondent relied on section 109 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended (the "Act") in seeking to vacate the finding that the Applicant was a Convention refugee. The Respondent had alleged that the Applicant had obtained refugee status on the basis of fraudulent means, misrepresentation, suppression and concealment of material facts, specifically with respect to the entry of two criminal convictions in Bulgaria. The Respondent relied on certificates of conviction that had been issued by a Bulgarian court. The first certificate related to the conviction of the Applicant in 1991 for the offence of "continuous crime larceny of public property"; the second was in respect of a conviction in 1996 for the offence of "committing a fraud" with the infliction of "property damage" in the amount of U.S. $14,680.
[4] The Board accepted the two certificates of conviction as evidence that the Applicant had been convicted of criminal offences in Bulgaria. It found that since the Applicant had received a sentence of two years imprisonment in connection with the 1991 conviction, this offence was not a serious non-political crime and would not have triggered the operation of Article 1F(b) of the Refugee Convention, a provision that operates to exclude admission into Canada of a person who has been convicted of a serious non-political offence. However, the Board reached a different conclusion with respect to the 1996 conviction.
[5] Here, the Board accepted the Respondent's argument that the Applicant had been convicted of the crime of fraud in the amount of "U.S. $14,680", which offence would, in Canada, be fraud over Can. $5,000, that is an indictable offence punishable in Canada by up to 10 years imprisonment. According to the Board, this situation attracts the operation of Article 1F(b) of the Refugee Convention, that is a person who is excluded from consideration as a Convention refugee as the result of having committed a serious non-political offence. The Board acknowledged the decision in Chan v. Canada(Minister of Citizenship and Immigration), [2000] 4 F.C. 390 (F.C.A.).
[6] The problem with the Board's conclusion in this regard is that it was made in the absence of any evidence about the equivalency between the Bulgarian criminal law and the criminal law of Canada. According to the trial decision in Xie v. Canada (Minister of Citizenship and Immigration), [2004] 2 F.C.R. 372 (T.D.), affirmed on other grounds [2004] 2 F.C.R. 372 (C.A.), equivalency of criminal offences is a question of fact to be established by evidence.
[7] A factual finding made without evidence is a ground for judicial intervention, pursuant to section 18.1(4) of the Federal Courts Act, R.S.C. 1985, c. F-7, as amended. In the present case, this
factual finding is essential to the Board's disposition of the Respondent's application to vacate the initial finding that the Applicant was a Convention refugee.
[8] In the result, this application for judicial review is allowed and the matter is remitted to a differently constituted panel for re-determination. There is no question for certification arising.
ORDER
The application for judicial review is allowed and the matter is remitted to a differently constituted panel for re-determination. There is no question for certification arising.
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2162-04
STYLE OF CAUSE: DIMITAR NIKLOV ILIEV
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: MONDAY, MARCH 14, 2005
REASONS FOR ORDER AND
ORDER: HON. MADAM JUSTICE HENEGHAN
DATED: MARCH 21, 2005
APPEARANCES: Mr. Jay Bernholtz
FOR THE APPLICANT
Mr. Jamie Todd
FOR THE RESPONDENT
SOLICITORS OF RECORD: Mr. Jay Bernholtz
Markham, Ontario
FOR THE APPLICANT
John H. Sims, Q.C.
Deputy Attorney General of Canada
FOR THE RESPONDENT