1.34 Immigration and Commission de l'immigration - . Refugee Board of Canada et du statut de refugi? du Canada ID Flle Number. - ,1 Immigration Section de UCI /Client ID Number: i Immigration Date of Birth: FAVOURABLE DECISION In the matter of the Minister of Public Safety and Emergency Preparedness and [surname given names of person concerned] permanent resident El foreign national Before 5' i3" 5?1? . Member ofthe Immigration Division [given names and surname in block letters] On the basis of the evidence adduced at the admissibility hearing held under the provisions of the Immigration and Refugee Protection Act (IRPA), the Immigration Division, pursuant to paragraph 45(a) of the IRPA, recognizes the right to the person concerned named above to enter Canada being a Canadian citizen within the meaning of the Citizenship Act. El being a person registered as an Indian under the Indian Act. El being a permanent resident. pursuant to paragraph 45(b) of the IRPA, grants to the person concerned named above, El permanent resident status. El temporary resident status. pursuant to paragraph of the IRPA, authorizes the person concerned named above to enter Canada for further examination, without conditions. under the conditions set out below. pursuant to paragraph 45 of the IRPA, Elf makes a decision in favour of the person concerned named above for the reasons set out below. Conditions I Reasons: I acknowledge receipt of the above decision. [given names and surname of person concerned in block letters] [signature] I have faithfully and accurately interpreted in the language the information provided above. [given names and surname of interpreter in block letters] [signature] Signed [city] [signature of member] ID 669 (2015i08i07) EL In Disponible en frangais COUNS canada. 135 Commission de l'immigration Immigration and et du statut de r?fugi? du Canada Refugee Board of Canada Immigration Division Section de l?immigration ID File No. N0 de dossier de la SI 0003?94-04874 Client ID No. No ID client 2337-1318 Private Hearing Huis clos Reasons and Decision Motifs et d?cision The Minister of Public Safety and Emergency Preparedness Between Le ministre de la S?curite publiciue et de la Protection civile Entre And et Person(s) Concerned Simion CRONENFELD Date(s) of Hearing 27 November 2015 Date(s) de 11 December 2015 l?audience Place of Hearing Toronto I:ieu de audlence Date Of . Date de la ooze-tried True Copy 5 Apr" 2016 decision Come Conforme ., . I. Kohler Tribunal I74 Panel Case Officer ii Pr?p?s? are cars -: --..1 I Counsel for the Rose Conseil du Minister ministre S. Green Conseil(s) pour H. Stein l?int?ress?(e) I Ies f?r the A. Gold Person(s) concerned Barristers and Solicitors 136 ID File No. N0 de dossier de la SI 0003-94-04874 Client ID No. ID client 2337-1318 IN THE MATTER OF the Immigration and Refugee Protection Act and an Admissibility Hearing concerning Simion CRONENFELD. REASONS FOR DECISION This is a record of the reasons for a decision made under the provisions of the Immigration and Refitgee Protection Act [hereinafter referred to as the Act] concerning Simion Cronenfeld following an admissibility hearing conducted pursuant to subsection 44(2) of the Act. On 15 June 201 1, an immigration of?cer wrote a report [hereinafter 44 Report] pursuant to subsection 44(1) ofthe Act alleging that Mr. Cronenfeld is inadmissible to Canada for serious criminality, as described in subsection 36(1)(c) of the Act. Subsection 36(1)(c) states as follows: A permanent resident or a foreign national is inadmissible on grounds of serious criminality for committing an act outside Canada that is an offence in the place where it was committed and that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years. The Minister alleges that Mr. Cronenfeld is inadmissible under for being a permanent resident who committed a serious crime in the United States. It has been speci?cally alleged that Mr. Cronenfeld committed the act of drawing and passing a cheque without suf?cient funds with intent to defraud, and committed the act of theft. The 44 Report states that Mr. Cronenfeld was charged with these criminal offences under Nevada law. The Minister submits that ifcommitted in Canada, that these acts could constitute the Criminal Code offences of fraud over $5000 and theft over $5000 respectively. 137 ID File No. de dossier de la SI 0003-94-04874 Client ID No. ND ID client 2337?1318 The Minister submits that Mr. Cronenfeld also committed the Nevada offence of ?obtaining money under false pretenses?. The Minister submits that while this particular offence is not speci?cally cited in the 44 Report, information regarding this additional offence is found in the documentary evidence. Therefore, the Minister submits, Mr. Cronenfeld ?was fully aware of the case he had to meet and he was provided a full opportunity to participate in a meaningful manner in the process, there was no breach of procedural fairness?. In order for a person concerned to be fully aware of the case to be met in an admissibility hearing, the Minister must set out the specific allegation in the 44 Report. Anything less is insufficient. It was open to the Minister to amend the 44 Report to include this particular offence, but the Minister did not do so. Therefore, this particular allegation will not be addressed in this decision, as the immigration Division has nojurisdiction to do so. Mr. Cronenfeld submits that the Nevada criminal charges related to the Green Valley Ranch Station Hotel and Casino [hereinafter should not be considered when assessing Mr. Cronenfeld?s admissibility. This is because those speci?c charges have been withdrawn as a result ofa negotiated settlement. Under 8. 36(l)(c) there is no requirement for a criminal charge to have been laid in the foreign jurisdiction. All that is required is the commission of an act that is deemed an offence in the foreignjurisdiction. In the case of Mr. Cronenfeld, there is an allegation that he acted in a manner that caused the Nevada authorities to have grounds to believe he committed an offence and to charge him under their criminal statute. It is these actions of Mr. Cronenfeld that will be assessed in this decision, not the existence (or lack thereof) ofcriminal charges. 138 ID File No. N0 de dossier de la SI 0003-94-04874 Client ID No. ID client 2337-1318 [10] The evidence this decision is based on consists of Exhibits AH-4 and AH-S tendered by the Minister, Exhibits and AH-6 tendered by Mr. Cronenfeld, as well as Mr. Cronenfeld?s testimony and the testimony of Mr. Lior Avadiev. [1 1] On 27 November 2015, Mr. Cronenfeld made an oral application to have six items within Exhibit specifically item numbers excluded from the evidence. After hearing submissions from both parties, I did not grant Mr. Cronenfeld?s application, as I was not persuaded that the materials in question are prejudicial or lack relevance. [12] Having reviewed all of the documentary evidence, I ?nd all documents to be credible and trustworthy. I also find the testimony of Mr. Cronenfeld and Mr. Avadiev to be credible and trustworthy. Both witnesses answered questions clearly and did not appear to embellish their testimony. In the event of contradictions between the documentary evidence and the oral testimony, I prefer the oral testimony as I had the opportunity to observe it being tested through cross examination, and I accept the veracity of the oral testimony. [13] On 14 October 2015, Mr. Cronenfeld made an application for this hearing to be held in the absence of the public. The Minister did not object. The application was granted on 23 November 2015. Background [14] Mr. Cronenfeld was born in Russia on 11 December 1979 and immigrated to Israel at the age of four. He is a citizen oflsrael. He came to Canada in 1986 and became a permanent resident on 15 March 2007. Mr. Cronenfeld is not a Canadian citizen. 139 ID File No. de dossier de la SI 0003-94?04874 Client ID No. N0 ID client 2337?1318 [15] Documentation in evidence sets our various spellings of Mr. Cronenfeld?s name, including Simion Kronenfeld and Semion Kronenfeld. I am satis?ed that these documents all refer to the same individual, speci?cally Simion Cronenfeld who appeared before me at this admissibility hearing. [1 6] Mr. Cronenfeld became a successful businessman in Canada, in the ?eld ofelectronics refurbishing. He started gambling in Las Vegas in 2002 or 2003, as a way to entertain corporate clients while at the electronics trade show held in that city. [17] Mr. Cronenfeld sold his electronics business in 2007 and started receiving staged payments from the buyer. Those payments stopped being made in 2008. Mr. Cronenfeld involved himself in various other business opportunities, including real estate and providing venture capital in a gas development project in Ukraine. [18] By 2008, Mr. Cronenfeld became a heavy gambler, gambling a few million dollars on each three?day visit to the casinos. At this time, Mr. Cronenfeld started to use casino lines of credit when gambling, instead of putting his own money forward at the moment he gambled. [19] A line of credit is initiated with an application form filled out by the gambler. Through the application process, the casino is given the opportunity to verify the gambler?s assets and credit worthiness, and to determine the level ofrisk the casino is willing to assume when extending credit to the gambler. Once credit is established, the gambler signs markers in order to receive chips to gamble with at the casino. Markers are later exchanged for a cheque covering the amount owed on the line of credit. [fthe gambler wins, he can pay the line of credit with those winnings. One bene?t of the line of credit system is a 20% reduction on the amount owed. Another bene?t is a generous grace period for payment of the line of credit. 140 ID File No. N0 de dossier de la SI 0003-94?04874 Client ID No. N0 ID client 2337-1318 [20] Mr. Cronenfeld?s credit limit at the Venetian Hotel and Casino [hereinafter Venetian] increased from $1 million to $9 million by October 2008. His line of credit also increased at GVR. Until October 2008, there is no evidence that Mr. Cronenfeld did not pay his lines of credit to clear his gambling debts at these Las Vegas casinos. [21] In October 2008, Mr. Cronenfeld gambled-at both the Venetian and GVR in Las Vegas. He used his line of credit at both casinos. [22] In October 2008, Mr. Cronenfeld gambled and lost a total of approximately $10 million over a few days at the Venetian. He ?rst gambled and lost $5 million. He then gambled and lost another $5 million. Mr. Cronenfeld provided a cheque for $7.9 million to cover the entire $10 million on his line of credit (calculated to include the 20% discount and repayment of his charter ?ights). [23] The Venetian attempted to cash the $7.9 million cheque on 17 December 2008, but it was returned ?payment stopped?. [24] In October 2008, Mr. Cronenfeld also gambled heavily at GVR, using his line of credit that received a number of extensions by the casino. By the end of this jaunt, Mr. Cronenfeld gambled and lost $5 million. He provided two Cheques, totaling $4 million, to cover his line of credit (calculated with the 20% discount). These two cheques, one for $1.7 million and the other for $2.3 million, were deposited by GVR on 9 December 2008, only to be returned due to non- sufficient funds [hereinafter [25] On 18 February 2009, a warrant was signed by a court in Clark County, Nevada. Mr. Cronenfeld was accused of?drawing and passing a check without sufficient funds in drawee bank with intent to defraud, presumptions of intent to defraud? and theft. 141 ID File No. N0 de dossier de la SI 0003-94-04874 Client ID No. NO ID client 2337-1318 [26] From this information, Mr. Cronenfeld was reported under s. 36(1)(c) ofthe Act. Decision and Analysis [27] Upon careful review ofthe evidence, submissions and relevant case law, I find Mr. Cronenfeld not described in paragraph 36(1)(c) of the Act. [28] This case turns on the actions of Mr. Cronenfeld and on the issue of intent. 1. Drawing and passing a check without sufficient funds [29] The offence of ?drawing and passing a check without suf?cient funds in drawee bank with intent to defraud, presumptions of intent to defraud? is set out in the Nevada Revised Statutes, NRS 205.130 and NRS 205.132. [30] NRS 205.130 states, in part: Except as otherwise provided. .., a person who willfully, with intent to defraud, draws or passes a check or draft to (0) Credit extended by any licensed gaming establishment, when the person has insufficient money, prOperty or credit with the drawee of the instrument to pay it in full upon its presentation, is guilty [31] NRS 205.132 states, in part: in a criminal action for issuing a check or draft against insufficient or no funds with intent to defraud, that intent and the knowledge that the drawer has insuf?cient money, property or credit with the drawee is presumed to exist if:. .. Payment of the instrument is refused by the drawee when it is presented in the usual course of business. .. 142 ID File No. N0 de dossier de la SI 0003-94-04874 Client ID No. lD client 2337-1318 [32] The wording in the Nevada statute suggests that writing a cheque that is returned NSF is an absolute liability offence, as the intent is presumed to exist if the cheque is returned NSF. However, American law provides the negation of a presumed intent to defraud if the payee creditor is aware that sufficient funds are not available to cover the cheque] [33] In the case oer. Cronenfeld, the casinos were aware (or ought to have been aware) of his credit worthiness (or growing lack thereof) each time they extended his credit above his previous credit line limit, as the casinos had the ability to inquire and conduct due diligence in order to assess the risk of increasing Mr. Cronenfeld?s credit limit. [34] There is sufficient evidence that Mr. Cronenfeld discussed the issue of his lack of available funds with each casino.2 Mr. Cronenfeld testified that he was candid with casino staff that he needed the standard grace period, and later stated he needed more time, to arrange for payment. He testified that he maintained regular communication with casino representatives, keeping them informed of his efforts to acquire funds and arrange payment, and regularly notifying the casinos that his bank accounts still did not have suf?cient funds to cover the cheques he wrote. [3 5] From the evidence, I am unable to find that Mr. Cronenfeld intended to write NSF cheques or intended to defraud the Venetian or GVR. I also ?nd that the Venetian and GVR were aware of Mr. Cronenfeld?s financial situation when they continued to extend credit to him, when they allowed him to sign more and more markers, when they received his cheques, and when they attempted to cash his cheques. [36] Therefore, I am unable to find that Mr. Cronenfeld had any ?intent to defraud? the Venetian or the GVR. Without intent, Mr. Cronenfeld?s actions of writing a $7.9 million cheque to the Venetian and writing two cheques totaling $4 million to the GVR, all of which were returned NSF, do not constitute committing the said offence in Nevada. In addition. these actions State v. Zem, 92 Ariz. 334; People v. Payer, 6 Ca]. 3d 530; Zahaw' v. State, 343 P.3d 595. 3 See for example, Exhibit AH-S, pp. 58 59. 143 ID File No. de dossier de la SI 0003?94-04874 Client ID No. N0 ID client 2337-1318 do not constitute committing the offence of fraud in Canada, as there is no evidence that Mr. Cronenfeld acted by ?deceit, falsehood or other fraudulent means?. 2. Theft [37] The offence oftheft is set out in the Nevada Revised Statutes, NRS 205.03 82, which states in part: a person commits theft if, without lawful authority, the person knowingly: obtains real, personal or intangible property or the services of another person by a material misrepresentation with intent to deprive that person of the property or serv1ces. [38] The use of the words ?knowingly? and "with intent to deprive? make it clear that a person commits this offence in Nevada when the actions of the person demonstrate that he had the intention of doing so. As stated above, I am unable to find evidence that Mr. Cronenfeld intended for the cheques to be returned NSF, and therefore default on his payment ofthe lines ofcredit. There is no evidence that he knowingly obtained something from the casinos with the intention of depriving the casinos of proper payment. [39] There is no evidence that Mr. Cronenfeld made any material misrepresentations to the Venetian or GVR, as there is no evidence that he was untruthful on his credit applications or in his statements to the casinos. Through their positions as creditors, the casinos had the ability (and responsibility) to assess Mr. Cronenfeld?s credit worthiness when they extended him increasing amounts of credit. When it came time to write cheques to pay off his lines of credit, as discussed above, Mr. Cronenfeld made it clear to the Venetian and GVR that he did not have sufficient funds to cover the cheques at the moment and that he needed a grace period to make payment arrangements. Mr. Cronenfeld kept the casinos abreast of his efforts to obtain the funds, and continued to request further time to arrange payment. At no time did Mr. Cronenfeld misrepresent his financial situation to the casinos. 144 ID File No. N0 de dossier de la SI 0003-94-04874 Client ID No. N0 client 2337-1318 [40] Without intent, the intent to deprive and material misrepresentation, Mr. Cronenfeld?s actions of writing a $7.9 million cheque to the Venetian and writing two cheques totaling $4 million to the GVR, all of which were retumed NSF, do not constitute committing the offence of theft in Nevada. As well, these actions do not constitute committing the offence of theft in Canada, as there is no evidence that Mr. Cronenfeld acted with intent. Conclusion [41] In conclusion, from the evidence before me, I ?nd on a balance of probabilities that Simion Cronenfeld, a permanent resident of Canada, is not inadmissible pursuant to of the Act. Therefore, I am required to issue a Favourable Decision. (signed) 15 April 2016 Date