WILFRID NGUESSO Applicant v. THE MINISTER OF, 2015 FC 879

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’sintervention? VI.

Standards of review [58] The standard of review applicable in matters of procedural fairness is correctness (Canada (Minister of Citizenship andImmigration) v Khosa, 2009 SCC 12at para 43, [2009] 1 SCR 339; Mission Institution v Khela, 2014 SCC 24at 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 294at para 15, [2015] FCJ No 459;Krishnamoorthy v Canada (Minister of Citizenship and Immigration), 2011 FC 1342at para 13, [2011] FCJ No 1643 [Krishnamoorthy];Pusat v Canada (Minister of Citizenship and Immigration), 2011 FC 428at 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 ofthe errors raised relate to how the officer should have interpreted and applied paragraph 37(1)(

a) of the IRPA and

section 33, whichestablishes the “reasonable grounds to believe” standard. [60] In Agraira v Canada (Minister of Public Safety and Emergency Preparedness), 2013 SCC 36at paras 49-50, [2013] 2 SCR559 and Canadian National Railway Co. v Canada (Attorney General), 2014 SCC 40at paras 55-62, [2014] 2 SCR 135, the SupremeCourt applied the presumption that the standard of reasonableness is applicable to issues that involve a decision-maker interpreting itsown 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 thecircumstances of a case involves questions of mixed fact and law reviewable on a standard of reasonableness (Torre v Canada (Ministerof Citizenship and Immigration), 2015 FC 591at para 15, [2015] FCJ No 601; Dunsmuir v New Brunswick, 2008 SCC 9at para 51, 53,[2008] 1 SCR 190; Thanaratnam v Canada (Minister of Citizenship and Immigration), 2005 FCA 122at 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 hisfamily of the decision to declare him inadmissible. He raises the failed family reunification resulting from this decision and negativeimpact 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 theperson 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 ofthe spectrum, since the interests at stake are less important than in other circumstances and that the issuing of a permanent resident visais a privilege, not a right. [64] In Baker v Canada (Minister of Citizenship and Immigration, (SCC), [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 andflexible and must be considered in context.

At paragraph 30, the Court notes that “[a]t the heart of this analysis is whether, consideringall the circumstances, those whose interests were affected had a meaningful opportunity to present their case fully and fairly.” The Courtdid 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 givencontext.

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 towhich the public body operates; (3) the importance of the decision to the individuals affected; (4) the legitimate expectations of the partychallenging the decision; and (5) the nature of the deference accorded to the body: Baker v.

Canada (Minister of Citizenship andImmigration), (SCC), [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 thespectrum.

In Khan v Canada (Minister of Citizenship and Immigration), 2001 FCA 345, at paras 31-32, [2001] FCJ No 1699 [Khan], theFederal 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 impositionon the applicant of the burden of establishing eligibility for a visa; the less serious impact on the individual that the refusal of a visatypically has, compared with the removal of a benefit, such as continuing residence in Canada; and the fact that the issue in dispute in thiscase (namely, the nature of the services that Abdullah is likely to require in Canada and whether they would constitute an excessivedemand) 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 FINTRAC found suspicious.

The applicant maintains that if the officer’s sources of information had been disclosed to him, he could have verified their reliability and objectivity and, if necessary, made submissions and argued against the use of certain information in the public domain.

The applicant submits that this opportunity would have been all the more important given his family ties with a political figure, who may be the subject of extensive media coverage that is not always neutral. [ 79 ] He also submits that the January 2009 FINTRAC report should have been disclosed to him before the interview to enable him to verify the accuracy of the information it contained.

The applicant submits that it was not enough for the officer to mention in the fairness letter that certain transfers of funds were considered suspect by FINTRAC without providing him with a list of transactions. [ 80 ] The applicant also claims that the fairness letter should have identified the criminal organization in question, the list of questions that the officer intended to ask him and a list of the documents that she would ask him to submit.

He also alleges that during the interview, the officer repeatedly referred to documents and information that had not been disclosed to him and that were not shown to him during the interview while the officer was referring to them to ask questions. [ 81 ] The applicant also criticizes the officer for failing to disclose to him, before the interview, the April 2008 report of the CBSA (War Crimes Section) as well as the July 2009 conclusion of the CBSA’s Organized Crime Section.

The applicant submits that the officer should also have disclosed to him the CBSA’s report of November 1, 2012, in which it concluded, after verifications and an exhaustive review, that there was insufficient evidence on which to base reasonable grounds to believe that he was inadmissible under sections 34 , 35 or 37 of the IRPA . [ 82 ] The applicant insists on the importance of the report of November 1, 2012, particularly because the officer admitted that the significant concerns mentioned at paragraph 6 of her affidavit of September 24, 2014, came from the CBSA.

It was the CBSA that sent the officer most of the questions that she asked during the interview. The applicant argues that by failing to disclose that report, the officer deprived him of evidence favourable to his case that was based on the same sources and/or information that she herself had consulted before declaring him inadmissible. [ 83 ] The applicant adds that the second FINTRAC report of April 2011, to which the CBSA report of November 1, 2012, refers, should also have been disclosed to him.

The applicant argues that this report was all the more relevant because it included his designation as a politically exposed foreign person under the PCMLA , which was relevant to his defence. (

b) Respondent’s arguments [ 84 ] The respondent submits that, in this case, the concerns that led to the declaration of inadmissibility of the applicant were disclosed to him and that he had ample opportunity to make representations and resolve the officer’s doubts. The respondent submits that the officer’s two principal categories of concern involved his rise within Socotram given his family ties and professional profile and the origins of his considerable wealth.

The respondent submits that these concerns were raised several times and that the applicant had numerous occasions to address them and submit information that would resolve the officer’s doubts. [ 85 ] The respondent submits that procedural fairness does not require that every document processed by an officer be disclosed to the applicant, but rather that he have real or presumed knowledge of the essential information contained in the relevant documents to enable him to provide his point of view on the information.

The respondent submits that the applicant had access to all of the relevant information and documents to enable him to participate in the decision-making process. [ 86 ] Referring to the letter of September 5, 2012, the respondent submits that the information included in the [ translation ] “open, convergent and consistent documentation” mentioned therein (mainly newspaper articles about members of the Nguesso family, the wealth of certain African heads of state and the Congolese petroleum industry and Socotram) was public, that it could not have not been unknown to the applicant and that he had ample opportunity to respond to it. [ 87 ] The respondent also insists on the fact that the applicant was represented by counsel and that at no time before or during the interview did he request a copy of the documents referred to in the fairness letter, implying that he was aware of the information it contained.

There was no request for disclosure until February 1, 2013. [ 88 ] Furthermore, the officer, on cross-examination, informed the applicant that the documentation mainly included newspaper articles about members of his family. [ 89 ] The respondent acknowledges that the FINTRAC report of January 14, 2009, was not disclosed to the respondent, but submits that the report listed electronic transfers of funds made or received by the applicant, so he could not have been unaware of them. The respondent also argues that the issue involving the various transfers of funds was raised on several occasions.

He alleges that the fairness letter of September 5, 2012, mentions it, that several of the questions asked during the interview of September 25, 2012, were about certain transactions and that the letter of September 28, 2012, demanded information on that subject.

The respondent therefore argues that the applicant was informed of most of the information and allegations contained in the FINTRAC report and that he was given the opportunity to make whatever submissions he deemed appropriate. [ 90 ] As for the second FINTRAC report dated April 5, 2011, the respondent submits that because the officer did not look at it or use it in her analysis of the permanent residence application, she had no obligation to transmit it to the applicant.

The respondent also submits that it appears from the CBSA’s recommendation of November 1, 2012, that this disclosure was similar to the first. [ 91 ] The respondent also addressed the three reports prepared by the CBSA. [ 92 ] He submits that the evaluation made by the CBSA’s War Crimes

Section did not need to be disclosed to the applicant because

it addressed the possibility of inadmissibility for war crimes under

section 35 of the IRPA, a ground that the officer rejected. [93] As for the July 2009 email containing the opinion of the CBSA’s Organized Crime Section, the respondent submits that itreveals no concerns that were not disclosed to the applicant. He adds that the CBSA opinion clearly mentioned that it was not final.

Therespondent adds that the preliminary nature of the opinion no doubt explains why the recipient of the email, Guy Langevin, wrote in theGCMS notes on October 29, 2009, that the file was [translation] “still under review in the Organized Crime Section”. [94] As for the CBSA evaluation dated November 1, 2012, the respondent submits that it was essentially based on the responsesprovided by the applicant during the interview, the FINTRAC disclosures and the information in the public record.

The CBSA thereforereveals no new concerns that had not been raised with the applicant and on which the officer based her decision. [95] The respondent notes that the officer indicated, on cross-examination, that she had taken into consideration the CBSA’sevaluation and that no inference could be drawn from the fact that the CTR did not contain any notes or exchanges about the evaluationor the fact that it was not mentioned in the officer’s decision. [96] The respondent adds that the report is based solely on the evidence that was before the CBSA on November 1, 2012.

It hasbeen demonstrated that the CBSA only had access to the interview notes relating to the questions it had asked the officer to ask theapplicant. Furthermore, this recommendation does not take into account the information and documents sent by the applicant onApril 30, 2013.

Finally, it is clearly stated in the CBSA report that its role was limited to providing support to the officer, who retainedthe authority to make whatever decision she considered appropriate. [97] The respondent also refutes the applicant’s allegation that the officer should have again confronted him with the concerns thatemerged from the documents he submitted in April 2013.

The respondent submits that the officer asked the applicant several questionsabout his various companies and that he deliberately chose not to respond or provide explanations about the transfers of funds betweenSocotram, several of his companies and himself. (

c) Analysis [98] The case law recognizes that a visa applicant must be given a reasonable opportunity to respond to an immigration officer’sconcerns before his or her application is denied, and it goes without saying that he or she must therefore be informed of any suchconcerns (Khan at para 18; AB at para 67; Pimentel v Canada (Minister of Citizenship and Immigration), 2004 FC 1149at para 7, [2004]FCJ No 1380; Ghofrani v Canada (Minister of Citizenship and Immigration), 2008 FC 767at paras 15-17, [2008] FCJ No 1005). [99] This Court has dealt on several occasions with files in which the alleged breach of procedural fairness involved a failure todisclose documents or information before a decision was rendered, as is the case here. [100] In Haghighi v Canada (Minister of Citizenship and Immigration), (FCA), [2000] 4 FC 407 at paras 26-28,[2000] FCJ No 854 (CA) [Haghighi], the Federal Court of Appeal had to determine whether an immigration officer dealing with anapplication for a humanitarian and compassionate exemption based in part on a fear of persecution had breached procedural fairness byfailing to disclose a pre-removal risk assessment report prepared by another officer.

The Court held that the relevant issue was whetherprior disclosure of the report was required to allow the applicant to participate meaningfully in the decision-making process, and itestablished guidelines for reviewing the scope of the duty of fairness in such a context. [101] The Federal Court of Appeal was again invited to consider the obligation to disclose certain documents before a decision isrendered in Bhagwandass v Canada (Minister of Citizenship and Immigration), 2001 FCA 49at para 22, [2001] 3 FC 3 [Bhagwandass],but this time, in the context of a public danger opinion.

The Court applied the Haghighi test. [102] At paragraph 12 of Mekonen, Justice Dawson summarized as follows the factors identified by the Federal Court of Appeal inHaghighi and Bhagwandass: 12 . . . In both cases, the Court applied five factors in order to determine whether disclosure of the report in question was required inorder to provide the person concerned with a reasonable opportunity to participate in a meaningful fashion in the decision-makingprocess.

The factors were: (1) the nature and effect of the decision within the statutory scheme; (2) whether, because of the expertise of the writer of the report or other circumstances, the report was likely to have such a degree ofinfluence over the decision-maker that advance disclosure was required in order to “level the playing field”; (3) the harm likely to arise from a decision based upon an incorrect or ill-considered understanding of the relevant circumstances; (4) the extent to which advance disclosure of the report was likely to avoid the risk of an erroneously-based decision; and (5) any costs likely to arise from advance disclosure, including delays in the decision-making process. [103] At paragraph 19 of Mekonen, Justice Dawson addressed the factor relating to the degree of influence that the report was likelyto have over the decision-maker and used the expression “instrument of advocacy”, a phrase often repeated in subsequent cases.

She alsoemphasized, at paragraph 27 of her judgment, the fact that the relevant issue was not whether the applicant knew of the facts orinformation contained in the undisclosed report, but “whether the disclosure of the report is required to provide the person with areasonable opportunity to participate in a meaningful manner in the decision-making process”. [104] The same test was applied in similar circumstances in various judgments of this Court, and, in most of those cases, the nature ofthe information contained in the undisclosed documents and the influence they had on the decision-maker were the determinative factors(Okomaniuk v Canada (Minister of Citizenship and Immigration), 2013 FC 473at paras 33-34, [2013] FCJ No 501 [Okomaniuk];

Gebremedhin v Canada (Minister of Citizenship and Immigration) , 2013 FC 380 at para 9 , [2013] FJC No 404 [ Gebremedhin ]; Ulybin v Canada (Minister of Citizenship and Immigration) , 2013 FC 629 at para 23 , [2013] FCJ No 661; Krishnamoorthy at para 37 ; Pusat at para 30 ; Baybazarov v Canada (Minister of Citizenship and Immigration) , 2010 FC 665 at paras 13-15 , [2010] FCJ No 930 [ Baybazarov ]; Kablawi v Canada (Minister of Citizenship and Immigration) , 2009 FC 283 at paras 12-14 , [2009] FCJ No 348). [ 105 ] At paragraph 33 of Okomaniuk , the Court specified that it is not always necessary for the report to be disclosed if the content or gist of the concerns are raised and conveyed (see also Gebremedhin at para 9 ). [ 106 ] Like the respondent, I believe that the rules of procedural fairness were not breached in this case.

I find that the applicant was validly informed of the nature of the inadmissibility being considered and the officer’s concerns and that he had a reasonable and meaningful opportunity to participate in the decision-making process. [ 107 ] As of May 13, 2008, the Immigration

Section asked the applicant to provide additional documents and information. This request already indicated that the Immigration

Section had concerns, or at least questions, about the applicant’s assets and revenue sources. The Immigration

Section instructed the applicant to provide his bank statements, the deeds of acquisition for his properties and vehicles, and details about the origin of the funding for these purchases. He was also instructed to provide the financial statements of Socotram and TS and the details of his brothers’ and sisters’ employment. [ 108 ] Counsel then representing the applicant inquired about the reasons why the additional documents were being required of the applicant, and, in an email dated December 2, 2008, she called into question the relevance of several of the pieces of information sought. In an email dated December 5, 2008, the Immigration

Section replied that in the context of an immigration application, immigration officers may ask for any document that will help establish a candidate’s personal, professional and financial reality. The response specified that the research undertaken had raised concerns and questions about some of the applicant’s assets and that the public information available, published on Internet sites or in newspapers, justified a more in-depth investigation, which the Immigration

Section was conducting in collaboration with partner agencies and Citizenship and Immigration Canada (CIC). The Immigration

Section also noted that this was a routine check that could take time. [ 109 ] The applicant then received the letter of September 5, 2012. This letter set out the various concerns of the Embassy’s Immigration

Section and specifically mentioned the ground of inadmissibility set out at paragraph 37(1) (

a) of the IRPA . The letter indicated that the Immigration

Section was concerned about the applicant’s experience and knowledge and his advancement in the professional world. The letter also mentioned specific concerns in connection with the potential appropriation of proceeds from the sale of petroleum products. [ 110 ] The file then evolved considerably, and although the concern regarding the potential misappropriation of the proceeds of petroleum production was no longer raised, the other concerns relating to the applicant’s advancement in the professional world and the origins and legitimacy of his substantial financial resources remained.

The same can be said for the concerns relating to certain transfers of funds. [ 111 ] On September 25, 2012, the applicant participated in an interview that lasted almost four hours, during the course of which he was asked 170 questions. The applicant was accompanied by the counsel representing him at the time. As a result of the interview, additional information was obtained from the applicant, and he was informed of the officer’s concerns.

The questions asked by the officer clearly revealed that she had concerns about various subjects, including the following: • the applicant’s academic history; • the creation of TS, its financial resources and activities and the circumstances that enabled the applicant to move from a helicopter pilot position to that of TS administrator; • the benefits that the applicant may have reaped from his family ties with DSN, particularly with respect to his advancement in the professional world; • the creation of Socotram, its mandate, its activities, its funding model, its partners, its administrators and their proximity with DSN and the private shareholders who have successively held its shares; • the purchase by TS of the shares held by SAGA and ELF Congo; • the applicant’s recruitment to Socotram, the lack of connection between his education and career path and his rise within Socotram through positions of great responsibility; • the salary and benefits that the applicant receives from Socotram; • the sale of TS’s shares to GGSC and the reasons for the sale; • the history of GGSC, its shareholders, its activities and its connections with the applicant, as well as the applicant’s claimed ignorance regarding GGSC’s activities, shareholders and administrators; • the interests that the applicant allegedly holds in several companies, and particularly his role in St.

Philibert, Matsip and Canaan; • the real property and moveable assets owned by the applicant in France, Congo and Canada and the source of the funds used to purchase them; • the many transfers of electronic funds made for the applicant’s benefit that came from Socotram and several other companies, including TS, Matsip and Canaan;

• the apartment rented by Socotram for the applicant that belonged to St. Philibert, one of the applicant’s companies; • the transfer of a large sum of money from Socotram to Canaan via a Montréal notary that allegedly served to purchase the house in which the applicant’s wife and children reside; and • his involvement in the investigation by the French authorities into [ translation ] “ill-gotten gains”. [ 112 ] Following the interview, the officer sent a letter to the applicant dated September 28, 2012. In the letter she indicated that based on the applicant’s statements during the interview, the Immigration

Section had concerns about his revenues, the companies in which he held shares, the nature of his employment contract and the success of his business. [ 113 ] The applicant submits that this letter did not list the officer’s new concerns, but merely requested additional information. This argument cannot succeed. The correspondence and the list of documents that the officer asked the applicant to provide clearly show that her concerns were broader and more numerous than those exposed in the letter of September 5, 2012.

The officer asked the applicant to provide many documents about a variety of subjects, such as his revenues; the activities and resources of TS; the transaction by which he acquired, through TS, the shares that SAGA and ELF Congo held in Socotram; Socotram’s activities; Socotram’s administrators; his employment contract; the salary and benefits that he received from Socotram; various companies in which he held interests, such as St.

Philibert and Canaan; and several transfers of funds carried out by Socotram to the applicant or to some of his companies and other transfers of funds from the companies to the applicant. [ 114 ] On February 27, 2013, the Immigration

Section also sent the applicant’s counsel the list of questions asked of the applicant during the interview, the answers he gave and the officer’s analysis of the interview.

The officer’s concerns relating to the applicant’s career path and the influence of DSN, the creation and development of TS, Socotram’s operations, the applicant’s other companies and the legitimacy of several transactions and transfers involving Socotram and the applicant are clearly reflected in the interview notes. [ 115 ] I am therefore of the view that the applicant was validly informed of the officer’s concerns, which were not permanently set when the letter dated September 5, 2012, was sent.

I should reiterate that the fairness letter of September 5, 2012, was not limited to the allegations of potential misappropriation of the proceeds of petroleum production in Congo. [ 116 ] The officer’s concerns about the legitimacy of the applicant’s business and sources of revenue, his companies’ corporate structures, their ties with Socotram and the transfers of funds between Socotram and those companies evolved based on the responses provided by the applicant to the questions he was asked and the documents he provided.

I am of the view that all the letters the applicant received, the questions asked of him during the interview and the documents and information requested of him after the interview, as well as the officer’s interview notes, enabled him to understand the gist and nature of the officer’s concerns. He also had the opportunity to ask questions as needed, which he did not do.

The applicant instead chose to respond only partially to the officer’s questions and provide only some of the requested documents. [ 117 ] I therefore find that he was validly informed of the officer’s concerns and had a reasonable opportunity to respond to them.

I reject the applicant’s allegation that he was found to be inadmissible on grounds other than those alleged. [ 118 ] I also find that the applicant was provided with the information that would enable him to participate meaningfully in the decision-making process. [ 119 ] The letter of September 5, 2012, clearly indicates that inadmissibility for organized criminality was being considered under paragraph 37(1) (

a) of the IRPA . [ 120 ] I agree that the officer disclosed to the applicant neither the public sources on which her concerns mentioned in the letter of September 5, 2012, were based, nor the list of relevant electronic transfers of funds, and it would have been preferable for her to have done so. However, I find that the officer’s concerns were specifically expressed during the interview and that they are clearly revealed by the interview notes disclosed to the applicant. I therefore find that this omission did not prevent the applicant from participating in the decision-making process in a meaningful way.

The officer informed the applicant that the documentation was made up mainly of newspaper articles. This information was in the public domain and was available. Moreover, the applicant could not have been unaware of the media coverage about his family or that relating to the investigation by the French authorities into [ translation ] “ill-gotten gains”.

Furthermore, the public documentation referred to in the letter of September 5 was mentioned in relation with the concern about the potential misappropriation of a portion of the proceeds of petroleum products, and this element was not raised subsequently. [ 121 ] The officer did not disclose to the applicant the FINTRAC report of January 2009, which included a list of the transfers of funds considered suspect, but she did ask him several pointed questions about specific transactions and transfers of funds that concerned her.

Moreover, in the letter of September 28, 2012, the officer clearly asked the applicant to provide information about the transactions and transfers at issue. I therefore find that the gist of the information contained in the January 2009 FINTRAC report that was used by the officer was disclosed to the applicant and that he had the opportunity to make any submissions he wished to make in response to her questions and concerns. As for the second FINTRAC report from April 2011, the officer did not look at it before rendering her decision.

It therefore could not have been used as an “instrument of advocacy” and did not have to be disclosed to the applicant. [ 122 ] As for the CBSA reports, I find that the officer did not breach procedural fairness in failing to disclose them to the applicant. [ 123 ] The first report from the CBSA’s War Crimes

Section in April 2008 concerned the possibility of inadmissibility for war crimes. This ground was rejected by the officer and was therefore not relevant to the decision she rendered. [ 124 ] The CBSA’s email of July 2009 was a preliminary opinion based on its analysis of the information in its possession at that time. The report contains very little information and does not refer to concerns that were not disclosed to the applicant. [ 125 ] It is clear that the officer looked at the CBSA report of November 1, 2012, before rendering her decision.

However, applying the test set out in Haghighi and Bhagwandass and repeated in Mekonen does not lead me to conclude that its disclosure was necessary,

because the report was not relied on by the officer, and it is not based on information that was unavailable to the applicant. The report is an analysis performed by a partner agency on the basis of the evidence in the file at the time the report was prepared. The record also shows that the officer did not rely on the report in rendering her decision; instead she reached contrary findings based on her own analysis of the file and the evidence at her disposal.

Therefore, the CBSA report was not an “instrument of advocacy” designed to have such a degree of influence on the officer that advance disclosure was required to level the playing field. [ 126 ] It was not a report reflecting negatively on the applicant on which the officer relied to render her decision, as was the case in all of the authorities filed by the parties. On the contrary, this report indicated that the CBSA was of the view that there was insufficient evidence to support the existence of reasonable grounds to believe that the applicant should be declared inadmissible for organized criminality.

The question of whether the officer should have accepted the CBSA’s findings is more relevant to the issue regarding the reasonableness of her decision. [ 127 ] Essentially, the applicant submits that if he had had the CBSA report in his possession, he could have used it to try to persuade the officer that there was insufficient evidence to declare him inadmissible.

This argument is not sufficient to create a duty to disclose the report to the applicant, particularly because the CBSA was not acting as the decision-maker and the officer’s decision was based on much more information than the CBSA had available to it when it issued its opinion. In addition to the information available to the CBSA, the officer based her analysis on the responses provided by the applicant to the questions she herself had asked him and on the documents that he had provided on April 30, 2013.

The influence that the CBSA report of November 1, 2012, could have had on the officer’s decision was therefore limited and insufficient to require that it be disclosed to the applicant. [ 128 ] The applicant submits that the officer should have sent him the “new” concerns that emerged following her analysis of the documents that he submitted on April 30, 2013. I disagree. The officer asked the applicant to provide her with a large number of documents. He had ample opportunity then to make any submissions he thought appropriate to explain or contextualize the documents he opted to send.

The record also shows that the applicant chose to provide only partial responses to the officer’s questions and to provide only some of the documents requested. The applicant had the opportunity to provide explanations to address the officer’s concerns regarding the transactions between Socotram, TS and GGSC; his conditions of employment; the corporate structure of his companies and several transfers of funds, but he opted to do so only partially.

The officer had no duty to disclose to the applicant the results of her analysis of the documents he had submitted. [ 129 ] Requiring another “round” of fairness would have been equivalent to requiring that the officer provide the applicant with an intermediate outcome of her analysis of documents he had submitted.

The duty of fairness may require that the applicant have a fair opportunity to respond to concerns raised by documents that he himself has submitted if the officer has concerns about the credibility, accuracy or genuineness of the information submitted ( Baybazarov at para 12 ; Kaur v Canada (Minister of Citizenship and Immigration) , 2014 FC 678 at para 17 , [2014] FCJ No 745 [ Kaur ]; Chawla v Canada (Minister of Citizenship and Immigration) , 2014 FC 434 at para 14 , [2014] FCJ No 451; Hussaini v Canada (Minister of Citizenship and Immigration) , 2013 FC 289 at para 10 ; [2013] FCJ No 318).

This duty does not stretch to the point of requiring an officer to provide an applicant with a preliminary analysis of the evidence that he has submitted ( Rukmangathan v Canada (Minister of Citizenship and Immigration) , 2004 FC 284 at paras 22-23 , [2004] FCJ No 317; Baybazarov at para 11 ; Kaur at para 17 ).

In this case, the officer did not have doubts regarding the authenticity or credibility of the documents that the applicant provided; rather she drew inferences and conclusions from these documents. [ 130 ] I therefore find that the applicant benefitted from the information that was necessary to enable him to participate meaningfully in the decision-making process and that the failure to provide the FINTRAC and CBSA reports and to question him further about the documents he submitted on April 30, 2013, does not constitute a breach of the rules of procedural fairness.

(2) Unfairness and reasonable apprehension of bias (

a) Applicant’s arguments [ 131 ] The applicant submits that several elements in the record show that he was treated unfairly throughout the processing of his permanent residence application. He also argues that the unfair treatment has extended into this judicial review and that the manner in which the file has been handled constitutes an abuse of process. [ 132 ] The applicant alleges that despite the fact that the Immigration

Section asked the CBSA three times to examine whether he was inadmissible and that the CBSA found three times that there was no evidence to support a finding of inadmissibility, his file was unduly blocked because of the ongoing investigation in France into [ translation ] “ill-gotten gains”. [ 133 ] The applicant notes that the entry into the GCMS of October 29, 2009, indicated that his file was [ translation ] “still under review in the Organized Crime Section”, despite the fact that the CBSA had found no grounds for inadmissibility in July 2009.

The applicant states that the officer was unable to explain this note. [ 134 ] The applicant also submits that there was no progress in the file from October 2009 to March 2011 and that he had to file a mandamus application to move things forward.

Moreover, he notes that the out-of-court settlement involved a timetable for finalizing the processing of the application without the issue of inadmissibility being raised by the respondent. [ 135 ] The applicant also criticizes the respondent for filing an incomplete CTR, arguing that he was forced to file several applications to have the CTR completed and that it is still not complete. [ 136 ] The application criticizes the officer for some of her statements regarding the preparation of the CTR.

The officer indicated that the documents included in supplementary volumes 8 and 9 of the CTR were not included in the original CTR because they were not in her possession or under her control, because she was not aware of them or because they had been destroyed in accordance with the thin file policy. [ 137 ] The applicant submits that the responses to the undertakings made by the officer on cross-examination and the cross-

examination itself reveal that the majority of the documents that were not in the original CTR were indeed in her possession. They could mainly be found in her electronic mailboxes and her computer.

He alleges that it also came out for the first time during the officer’s cross-examination and her responses to her undertakings that she had decided to remove certain documents from the CTR on the ground that they contained privileged information. [ 138 ] The applicant alleges that the officer also admitted that her affidavit of September 19, 2014, contained errors, particularly with respect to her statement about the completeness of the record, and that she should have specified, at paragraphs 6 and 7 of her affidavit, [ translation ] “all my communication exchanges in the file still physically present in Paris”.

The applicant submits that the officer also admitted that she had not mentioned in her affidavit of September 19, 2014, that there existed other exchanges with the CBSA and CIC that had not been included in Volumes 1 to 7 of the CTR on the grounds that they had not been relevant to the decision. [ 139 ] The applicant therefore submits that the officer failed to prepare the CTR rigorously and made inaccurate statements. [ 140 ] The applicant also takes issue with the officer for making misrepresentations, particularly when she claimed not to have had any direct communications with partners such as the CBSA on the basis that these communications were made through the officers of

Section B. The applicant also complains that the officer made contradictory statements regarding the number of times she communicated with the investigating judges in charge of the [ translation ] “ill-gotten gains” investigation in France. [ 141 ] The applicant also submits that the officer’s interview notes are incomplete and, in some respects, inaccurate, and that there are discrepancies and contradictions between the version of the notes provided to the CBSA and the one provided to him.

The applicant also alleges that the officer’s interview notes are replete with personal comments and unreliable. [ 142 ] The applicant finally submits that the affidavit sworn by the officer on September 24, 2014, on the subject of procedural fairness, was incomplete because, among other reasons, there was no mention of the complaint he filed on April 30, 2013, or the way it was handled.

The applicant criticizes the officer for having attempted to explain this omission by alleging that she was not the one who had dealt with the complaint, when the record shows that she was involved in its handling. [ 143 ] The applicant is also of the view that the officer’s conduct raises a reasonable apprehension of bias. He is particularly critical of her communications with the French investigating judge, despite her awareness that he was bound by professional privilege.

From the applicant’s point of view, these communications raise concerns about potential interference or an attempt to let the investigating judge know about Canada’s interest in the investigation. The applicant submits that the officer’s conduct was improper and raises a reasonable apprehension of bias. [ 144 ] The applicant also submits that the notes handwritten by the officer on the complaint of April 30, 2013, demonstrate that she believed that he had been charged with offences relating to the [ translation ] “ill-gotten gains” complaint in France, before the investigation was even concluded.

The applicant states that this confusion also raises a reasonable apprehension of bias. [ 145 ] The applicant also alleges that the CTR (page 2040 of Volume 8) reveals that on June 22, 2012, well before the interview of September 25, 2012, the officer was already considering inadmissibility. In an email that the officer sent to another officer, she wrote, [ translation ] “apart from security grounds, there aren’t really any other grounds for refusal” . [ 146 ] The applicant also criticizes the officer for the way she conducted the interview, and more particularly the unreasonableness of several of her questions.

He adds that the officer’s interview notes, as well as the notes summarizing her analysis, demonstrate the presence of biases, insinuations and arbitrary comments that lack any evidentiary basis. [ 147 ] The applicant adds that on April 30, 2013, he submitted all of the documents relevant to the processing of his permanent residence application and the decision on inadmissibility.

The applicant submits that it was abusive to ask him to submit all of the documents identified in the letter of September 28, 2012, and that only those documents regarding the lawfulness of his commercial activities and his sources of revenue were relevant. The applicant submits that several of the documents requested went beyond what was relevant and constituted a fishing expedition and an invasion of his private life. (

b) Respondent’s arguments [ 148 ] The respondent refutes any allegations that the applicant’s file was handled improperly. [ 149 ] He submits that the IRPA does not impose time limits for dealing with permanent residence applications. The investigations were necessary and could require considerable time to conduct. The respondent insists that the immigration system is based on the provision of accurate and complete information and that the officer was entitled to ask the applicant to provide additional information and documents.

He adds that delays in handling complex files are indicative not of bias but of prudence. [ 150 ] The respondent submits that the interview of September 25, 2012, was conducted according to standard practice and that the officer was under no obligation to disclose to the applicant in advance the questions she planned to ask him. [ 151 ] The respondent refutes the argument that the handling of the applicant’s file raises a reasonable apprehension of bias and notes that the onus is on the applicant to reverse the presumption of impartiality by demonstrating a reasonable apprehension of bias, which he has not done. [ 152 ] The respondent also submits that the officer’s role in the handling of the complaint of April 30, 2013, was not inappropriate, since it is often the decision-maker who first deals with an allegation of bias against him or her, and that, regardless, the final decision on this complaint was made by the officer’s supervisor.

The respondent alleges that the fact that the officer did not mention the complaint in her affidavit cannot form the basis of a reasonable apprehension of bias because the complaint was not part of the review of the file on the merits. [ 153 ] As for the officer’s communications with the French investigating judge, the respondent submits that the officer had a duty to

inform herself of the progress of the investigation into [translation] “ill-got

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