Canada: Court orders Canada to compensate Kazakh millionaire fugitive - PressFrom - Canada
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CanadaCourt orders Canada to compensate Kazakh millionaire fugitive

13:01  24 june  2019
13:01  24 june  2019 Source:   thestar.com

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Court orders Canada to compensate Kazakh millionaire fugitive © Provided by Toronto Star Newspapers Limited Rustem Tursunbayev, a Kazakh multimillionaire, has been fighting for years to avoid being sent back to his homeland where he is wanted for embezzlement.

A Kazakh multimillionaire wanted for embezzlement in his homeland has been awarded $203,000 in costs after the Federal Court found Canadian officials guilty of abusing the legal process in fighting the man’s request to stop the deportation proceeding against him.

The compensation to Rustem Tursunbayev is believed to be the largest monetary award for costs ordered in an single immigration case by the court, said Lorne Waldman, one of the man’s three lawyers.

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Tursunbayev was apprehended in the Greater Toronto Area in 2012 after Interpol sought his arrest based on accusations of fraud, counterfeiting and organized crime by Kazakh authorities. He was released from Toronto West Detention Centre and placed under strict house arrest for years. He is no longer under house arrest and does not have guards watching him.

After years of legal wrangling in court fighting Tursunbayev’s bid to stop his deportation, Canadian officials — including justice, public safety, immigration and foreign affairs ministers — in 2017 finally agreed to put his removal on hold until a trial decides if he should be sent back to Kazakhstan by way of extradition instead of deportation.

The deportation process is decided by a tribunal member who may or may not be a lawyer, while extradition requests are heard before Superior Court Justices, a process that provides important legal safeguards not available under deportation.

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Tursunbayev had argued throughout that his deportation must be put aside until the court rules whether extradition was the way to go. No trial date has been set yet.

“Our argument is the proper process to return our client to Kazakhstan is extradition, which offers a much more significant level of protection for him. It is more difficult for the Canadian government to succeed in extradition because of Kazakhstan’s human rights record. And they chose not to send him back by extradition, but through immigration deportation,” said Waldman.

“My client was forced to go through a complicated litigation that’s unnecessary and the court agreed.”

In a court order, Justice James Russell chided the government for failing to provide an explanation for its change of mind after years of litigation.

“Consent after years of expensive and hard-fought resistance is not the same as consent at an earlier stage or a mutually acceptable compromise. The reality is that, eventually, the plaintiff was wholly successful in the stay motion; there is little to justify the defendants’ resistance,” Russell wrote.

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According to Toronto police, Tursunbayev, who is in his 50s, is believed to have lived in the GTA since he entered Canada as a permanent resident in 2009. At the time of his arrest, he and his wife, Nataliya, lived in a King City mansion that was then worth $3.9 million.

It wasn’t clear what prompted the charges from Kazakhstan, but Tursunbayev had ties to the state-owned nuclear company, Kazatomprom, which was embroiled in a corruption scandal in 2009.

Tursunbayev accused the Canadian government ministers and seven individual officials of abusing the process on grounds that the authorities:

  • Misused the deportation proceedings instead of extradition proceedings to effect his return to Kazakhstan;
  • Failed to discharge their duty to ensure that the evidence they relied on from Kazakhstan was not obtained by torture;
  • And unlawfully shared information with Kazakh officials.

“The court concluded that there was a serious issue in relation to the question of whether or not there was a disguised extradition,” wrote Justice Russell. “The court found that there was irreparable harm in allowing an abuse of process to continue, and that the balance of convenience favoured the plaintiff.”

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In this cost recovery claim, Tursunbayev had asked for a “holistic approach” to the legal expenses he incurred throughout the legal battle, but Russell suggested he should have raised the potential demand for costs at the onset.

“It would be entirely inappropriate … to go back and now consider costs in motions where I issued final orders in which costs were not awarded (intentionally) because I had not been asked by the plaintiff to consider costs and so assumed he wasn’t seeking them,” Russell ruled.

However, “given the international dimensions of this case, the difficulties and expense of finding qualified experts on Kazakhstan and the need for international travel,” Russell concluded that the awarded cost was “entirely reasonable.”

Tursunbayev could not be reached for comment.

Nicholas Keung is a Toronto-based reporter covering immigration. Follow him on Twitter: @nkeung

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