CITIZENSHIP AND IMMIGRATION |
Exclusion and Removal |
Inadmissible Persons |
Ivanov v. Canada (Minister of Citizenship and Immigration)
IMM-2942-04
2004 FC 1210, Snider J.
2/9/04
10 pp.
Judicial review of IRB decision applicant excluded under Immigration and Refugee Protection Act (IRPA), s. 98, having committed theft, serious non-political crime--Applicant ran errands for organized crime in Bulgaria--Asked to take suitcase containing US$1 million to Russian mobster, applicant instead fled with funds, with wife and daughter went to U.S.A. where illegally resided--Later claimed Convention refugee status in Canada--First issue: did applicant commit serious, non-political crime--Since Board had to apply facts of case to law, reasonableness simpliciter was applicable review standard--Applicant argued IRPA, s. 98 did not capture intent of one who steals from thief--This argument rejected in R. v. Grasser (1981), 64 C.C.C. (2d) 520 (N.S.S.C. App. Div.)--Given that rights attach by reason of mere possession, Criminal Code, s. 322(1)(a) would appear to capture theft from thief--One is a thief even if he forms intent to steal from thief--No reviewable error by Board--Applicant advanced novel proposition did not steal, local mafia member having voluntarily given him possession of funds, thereby transferring whatever right he had to money--Argument rejected--Second issue: whether Board required to balance gravity of offence against potential harm to applicant if sent back to Bulgaria--Law settled that balancing exercise not required in case of serious non-political crime: Xie v. Canada (Minister of Citizenship and Immigration), [2005] 1 F.C.R. 304 (C.A.)--Prior to removal, applicant entitled to Pre-Removal Risk Assessment under IRPA, s. 112, which involves balancing process, could result in stay of removal order-- Board did consider circumstances, recognized applicant had grown up on street, but found no mitigating factors existed-- Applicant testified has no remorse, never considered dissociating self from mafia--Application denied--No question certified as of general importance--Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 98, 112-- Criminal Code, R.S.C., 1985, c. C-46, s. 322.