The story of immigrant Vivek Vishisht, 34, is a matter of public interest to Canadians.
In December 2020, the Immigration Appeal Division of the Immigration and Refugee Board of Canada published its decision in the matter of Vishisht and Canada (Minister of Public Safety). The hearing took place in February 2020. The Judgment was issued in March 2020. The reason for the delay in publishing this decision is unknown.
In 2018, various media outlets reported the sentencing decision of criminal fraud prosecution against Vivek Vishisht. The reasons for sentence in the criminal case were never published. We rely on the facts as held in the Canadian Immigration Appeal Division decision.
Vivek Vishisht’s Fraud on Canadian Seniors
In 2008 Vivek Vishisht came to Canada from India. At the time he was 22-years-old (born in 1986). According to Vishisht’s criminal defence lawyer, when Vishisht immigrated to Canada he “escaped abject poverty.”
It is unknown what Vishisht did in Canada from 2008 to 2018. What is known is that at some point Vishisht obtained employment at the Toronto-Dominion Bank on Queen Street in Charlottetown.
On Jan. 19, 2018, Vishisht was granted permanent resident status in Canada. He remained, and currently is, a citizen of India. A month after becoming a permanent resident, he began to defraud Canadians. From February to April 2018, he defrauded clients of the bank for a total amount of $251,535.08. He was only caught because a bank client reported missing funds.
The bank conducted a forensic audit and discovered Vishisht had defrauded 16 customers over a three-month period. Twelve of the 16 victims were elderly customers, and four accounts belonged to the estates of people who had recently died. The bank’s forensic audit revealed that Vishisht had created two fake bank accounts from which he had drawn bank drafts payable to himself. TD Bank reimbursed all of their customers.
On September 18, 2018, Vishisht pled guilty to a charge of fraud over $5,000. An agreed statement of facts was submitted to the Court.
The Sentencing Focused on the Deportation of Immigrant Rogues
According to a CBC report, Crown prosecutor Lisa Goulden recommended a sentence of 12 to 15 months in jail. “A quarter-million dollars is large-scale fraud. Elderly clients were targeted…He’s not the only person who grew up poor. That’s no excuse,” Golden told court.
Defence lawyer Isaac Quinn submitted that six months less a day in jail was appropriate, as this sentence would allow Vishisht to appeal deportation. “This is the country he knows,” Quinn told the Court. The Crown was of the view that even if this the country that he knows, it is not a country that wants him to remain here and obtain citizenship.
The investigation found that Vishisht used about a third of the money — $84,059.80 — to buy a 2018 Audi. “That’s double what I’ve ever paid for a car,” said Judge John Douglas as he handed down sentence Tuesday in Charlottetown Provincial Court.
The Deportation Hearing
According to court records, on January 11, 2019, Canada’s Minister of Public Safety issued a removal order against Vishishti by reason of “serious criminality” pursuant to paragraph 36(1)(a) of the Immigration and Refugee Protection Act (IRPA).
Immigration Appeal panel member David Lopez Sanso held:
15 The amount involved in this case is staggering: Vishishti defrauded his victims for a sum just north of a quarter of a million dollars. He did so as a bank teller, thus abusing the trust his employer put in him, and the trust Canadians put in their banking institutions, more specifically his employer’s clients.
16 The fraud required planning: Vishishti perpetrated a scheme that required him to open several bank accounts to deposit the stolen money. The fraud was not a one-time occurrence: it went on for the three months of February, March, and April 2018.
17 What is even more damning for Vishishti and strongly aggravates the offence is that he committed his crime against vulnerable people. Indeed, out of the 16 people that he victimized, 12 were elderly and four were deceased.
18 [Vishishti] criminal lawyer pleaded during his sentencing that his client had grown up in abject poverty, and that part of the money was used to help his family in India. However, this is not supported by the evidence before this Panel: he had the means to come to Canada at the age of 22 and was educated in English back in India.
More importantly, Vishishti explained at the hearing that he had committed his crime for financial gain, not once alluding to his upbringing, or any financial troubles that his Indian family would have. In fact, rather than showing payments to his relatives abroad, the evidence shows that the Appellant used the stolen monies to purchase a luxury car worth $84,000.
The Minister’s Counsel pointed out that there were absolutely no regrets that Vishishti expressed for the victims. The Panel agreed with this assessment. The panel held that while Vishishti appeared remorseful, this was only because he has to suffer the consequences of his actions, not out of remorse or consideration for his victims.
The Panel further held that Vishishti failed to take concrete steps towards his rehabilitation in terms of introspection, whether through therapy or professional counselling to unearth the root causes of his serious criminal offense, community involvement to foster his sense of belonging among the people he victimized, or other means. 
The Panel concluded that the fact that he did not mention his victims at the hearing, the lack of concrete steps to address his mental state and the profound reasons that made him act criminally for financial gain are reasons why Vishishti is not rehabilitated and is at high risk to reoffend. 
Vishishti conceded to the Panel that it was lawful for them to order him deported but asked that they show compassion on him as he had a girlfriend in Canada. The alleged girlfriend, however, did not testify. The Panel held that even if the alleged girlfriend had testified, it would not have been a sufficient reason to deport a rogue who is at high risk to re-offend .
Victims Concerned of Reduced Criminal Sentence for Immigrants
In his sentencing decision, Justice John Douglas sided with the defence, and sentenced Vishisht to six months less a day of jail and two years on probation. Justice Douglas held that “Low sentences can cause the public to lose confidence in the justice system”…”But the immigration issues are of utmost concern in this case … It’s up to the [federal] Immigration Department to deport him or not.”
Norman Groot, a fraud recovery lawyer with Investigation Counsel PC, commented that fraud victims often express concerns with why potential deportation plays a role in the criminal sentencing of rogues. Victims have expressed to Groot: “Why would it be appropriate for an immigrant who perpetrates frauds on Canadians immediately after becoming a landed immigrant to receive a sentence that is half of what a Canadian citizen would get.” Loss of confidence in the justice system does result from this kind of sentence.
It is not known to us whether this decision is the end of the appeals for Vivek Vishisht. He has the right to seek judicial review of the Immigration Appeal Division decision and seek a stay of his deportation.
Groot advised that in a recent case cited as Martinez v. Canada (Immigration), 2020 CanLii 101696, the Federal Court of Canada granted a stay of deportation for judicial review. In another recent case cited as Mukhal ats Canada (Immigration), 2020 FC 868, the Federal Court of Canada dismissed an appeal in a case where an applicant was ordered deported from Canada to India.
Vivek Vishisht enters Charlottetown Provincial Court where he was sentenced to six months in jail. (Brittany Spencer/CBC)
A full copy of the decision of Vishisht and Canada (Minister of Public Safety) can be found here.