Federal Court Decisions

                                                                                                                                            Date: 20020405

                                                                                                                                Docket: IMM-4620-00

                                                                                                                   Neutral Citation: 2002 FCT 376

BETWEEN:

                                                                         KA-LAI HO

                                                                                                                                                        Applicant,

                                                                              - and -

                             THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                                    Respondent.

                                                            REASONS FOR ORDER

KELEN J.:

[1]         This is an application pursuant to section 18.1 of the Federal Court Act, R.S.C. 1985, c.F-7 for judicial review of the decision of Immigration Officer Gilles Le Maire, dated June 9, 2000, wherein the application for permanent residence of the applicant was refused on the grounds that her spouse, Mr. Kwai Chung Chiu, is within the class of inadmissible persons defined in paragraph 19(1)(c.1) of the Immigration Act, R.S.C. 1985, c.I-2 and therefore the applicant is not permitted to obtain an immigrant visa.

FACTS

[2]         The applicant, Ka-Lai Ho, born March 5, 1968, is a resident of Hong Kong, China. She has worked most recently as a secretary.

[3]         The applicant applied for permanent residence to the Canadian Consulate General in Los Angeles on November 8, 1995, along with her spouse Kwai Chung Chiu. Her daughter, Eady Hei-Man Chiu, was born in Scarborough, Ontario, on March 12, 1997.

[4]         In her application, the applicant responded "No" to question 27, which reads:

27. Have you or has any one of the persons in question 11 [which sets out the names of the dependants accompanying her, in this case her spouse and child] ever:

[...]

B. Been convicted of or currently charged with any crime or offence in any country?

Further on in the application, the applicant attested to the truthfulness of the information in her application.

[5]         On November 24, 1995, an Immigration Officer approved the family's application, subject to medical and police clearances which would be supplied by the applicants. An interview was not deemed to be required at that time.

[6]         On March 7, 1996 police certificates from Hong Kong were received by the Consulate General. These certificates showed that Mr. Kwai Chung Chiu had been convicted in 1980 of:

(1)                 Attempted Theft

(2)                 Going equipped for stealing

(3)                 Theft

and in 1982 for:

(4)                 Fighting in a public place

(5)                 Criminal Damage

[7]         On the basis of these convictions, Mr. Chiu was required to complete a "rehabilitation application". Mr. Chiu filed an application for rehabilitation on May 13, 1996. Subsequently, he was interviewed on August 4, 1998 by Immigration Officer Wally Staschejko. In the notes from the interview with the applicant's spouse, Officer Staschejko writes, in part:

[ I ] WOULD RECOMMEND THAT IF ALL OFFENSES SUMMARY THAT REHAB BE GRANTED.[...] UPON FURTHER EXAMINATION APPEARS ONE CONVICTION EQUIVALATES [sic] TO POSSESSION OF BURGLARY TOOLS WHICH IS 19(1)(C.1)(I). IF SO RECOMMEND REFUSAL AS SUBJECT SEEMS TO CLAIM TO ALWAYS BE AT WRONG PLACE AND DOES NOT ACCEPT THAT HE WAS IN THE WRONG

The officer requested that Mr. Chiu obtain additional documents regarding the convictions from the Hong Kong Police. Some additional documentation was obtained, however, according to the Hong Kong Police, the original files had been destroyed due to a "lapse of time of more than ten years".

DECISION OF OFFICER LE MAIRE

[8]         On September 20, 1999, Officer Le Maire reviewed Mr. Chiu's file and made a recommendation against approval of Mr. Chiu's rehabilitation application. On the Application for Approval of Rehab form, Officer Le Maire wrote at section 13 of the Reasons for Recommendation:

1) The applicant attempted to conceal his criminal past by answering falsely to question 27(b) of his application form

2) The applicant has expressed no regret and no remorse for his past offenses

3) The interviewing officers concluded after hearing the applicant on his criminal past that he recommended refusal of his immigration application if his criminal past fell under A19(1)(c)

4) The offenses for which the applicant was found guilty are fairly serious and raise valid concerns as to the moral character of the applicant up to this day

5) No obvious element of this application suggests caution should not be exercised first in the interest of the Canadian public's protection

On October 4, 1999, Mr. Ian Rankin, Program Manager at the Consulate General in Los Angeles concurred with Officer Le Maire's recommendation.

[9]         Subsequently, on June 9, 2000, the Minister refused the rehabilitation application. On that same date, Officer Le Maire refused the applicant's application for permanent residence on the grounds that her dependant spouse was a member of an inadmissible class of persons as set out in ss. 9(1) of the Immigration Regulations. In the letter dated July 21, 2000 Officer Le Maire writes,

in part:

I regret to inform you that your spouse comes within the inadmissible class of persons described in paragraph 19(1)(c) of the Immigration Act, 1976, because he has been convicted of offences which, if committed in Canada, would constitute offences that may be punishable by a maximum term of imprisonment of ten years or more.

[...] In your spouse's case, please be informed that after careful review, the Governor-in-Council is not convinced that he is rehabilitated.

[...] Since your spouse, Chui, Kwai Chung, comes within the inadmissible class described above, I cannot issue immigrant visas to you or your dependants.

DEFINITION OF INADMISSIBLE PERSON

[10]       Paragraph 19(1)(c.1)(i) of the Immigration Act reads:

Inadmissible Classes

Inadmissible persons

19. (1) No person shall be granted admission who is a member of any of the following classes:

[...]

(c.1) persons who there are reasonable grounds to believe

i) have been convicted outside Canada of an offence that, if committed in Canada, would constitute an offence that may be punishable under any Act of Parliament by a maximum term of imprisonment of ten years or more,

Catégories non admissibles

Personnes non admissibles

19. (1) Les personnes suivantes appartiennent à une catégorie non admissible:

[...]

(c.1) celles dont il y a des motifs raisonnables de croire qu'elles ont, à l'étranger:

(i) soit été déclarées coupables d'une infraction qui, si elle était commise au Canada, constituerait une infraction qui pourrait être punissable, aux termes d'unde loi fédérale, d'un emprisonnement maximal égal ou supérieur à dix ans, sauf si elles peuvent justifier auprès

du ministre de leur rédaptation et du fait qu'au moins cinq ans se sont écoulés depuis l'expiration de toute peine leur ayant étéinfligée pour l'infraction,

Paragraph 9(1)(a) of the Immigration Regulations, 1978 reads:

9. (1) Subject to subsection (1.01) and section 11, where an immigrant, other than a member of the family class, an assisted relative, or a Convention refugee seeking resettlement makes an application for a visa, a visa officer may issue an immigrant visa to him and his accompanying dependants if

(a) he and his dependants, whether accompanying dependants or not, are not members of any inadmissible class and otherwise meet the requirements of the Act and these Regulations;

9. (1) Sous réserve du paragraphe (1.01) et de l'article 11, lorsqu'un immigrant, autre qu'une personne et appartenant à la catégorie de la famille, qu'un parent aidé ou qu'un réfugié au sens de la Convention cherchant à se réétablir, présente une demande de visa d'immigrant, l'agent des visas peut lui en délivrer un ainsi qu'à toute personne à charge qui l'accompagne si :

a)l'immigrant et les personnes à sa charge, qu'elles l'accompagnent ou non, ne font pas partie d'une catégorie de personnes non admissibles et satisfont aux exigences de la Loi et du présent règlement;

STANDARD OF REVIEW

[11]       Teitelbaum J. in Liu v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 1125, 2001 FCT 751(F.C.T.D.), wrote:

The appropriate standard of review for this type of decision - a discretionary one by a visa officer - is the same as that enunciated by McIntyre J. in the Maple Lodge Farms v. Government of Canada, [1982] 2 S.C.R. 2 at pp. 7 - 8:

It is, as well, a clearly-established rule that the courts should not interfere with the exercise of a discretion by a statutory authority merely because the court might have exercised the discretion in a different manner had it been charged with that responsibility. Where the statutory discretion has been exercised in good faith and, where required, in accordance with the

principles of natural justice, and where reliance has not been placed upon considerations irrelevant or extraneous to the statutory purpose, the courts should not interfere.

In Wang v. Canada (M.C.I.),[2001] F.C.J. No. 95 (IMM-2813-00, January 25, 2001), Rouleau J., referring to the above cited passage as well as to the Supreme Court of Canada's decision in Baker v. Canada (M.C.I.), [1999] 2 S.C.R. 817, held that the appropriate standard of review should be reasonableness simpliciter [emphasis added].

Accordingly, reasonableness simpliciter is the appropriate standard to review the visa officer's decision in this case. The Court will not set aside a decision of a visa officer, nor substitute its decision for an officer's, unless that decision was unreasonable or clearly wrong.

ANALYSIS

[12]       The immigration officer has the discretion and expertise to consider applications for permanent residence. Upon reviewing the evidence the officer found that the applicant's spouse is within an inadmissible class under subparagraph 19(1)(c.1)(i) and that the applicant, as joined to the inadmissible spouse, is herself inadmissible to Canada.

[13]       This case turns on whether the criminal convictions in Hong Kong are equivalent to crimes in Canada which have a maximum penalty of ten years imprisonment or more.

[14]       The applicant's spouse made an application for rehabilitation to the Minister. If this application were granted, the criminal convictions would not bar the applicant and the applicant's spouse from immigrating to Canada. The application was denied. The decision to deny the application for rehabilitation was considered by three immigration officers. I am satisfied that these three immigration officers carefully considered the circumstances of the applicant's spouse and made the decision in a reasonable and fair manner.

[15]       The delay in processing the application for rehabilitation was because the Immigration Department sought further information from the Hong Kong Police about the crimes in question. This information was not available due to the lapse of time since the convictions.

[16]       The main issue before this Court is whether Officer Le Maire correctly determined that the offence of "going equipped for stealing" under the Hong Kong Criminal Code is the equivalent of the Canadian Criminal Code offence set out in subsection 351(1) - "possession of a break-in instrument". The ss.351(1) offence is punishable with it a sentence of maximum ten years as per the Criminal Code:

Possession of break-in instrument

351. (1) Every one who, without lawful excuse, the proof of which lies on him, has in his possession any instrument suitable for the purpose of breaking into any place, motor vehicle, vault or safe under circumstances that give rise to a reasonable inference that the instrument has been used or is or was intended to be used for any such purpose, is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.

Possession d'outils de cambriolage

351. (1) Est coupable d'un acte criminel et passible d'un emprisonnement maximal de dix ans quiconque, sans excuse légitime dont la preuve lui incombe, a en sa possession un instrument pouvant servir à pénétrer par effraction dans un endroit, un véhicule à moteur, une chambre-forte ou un coffre-fort dans des circonstances qui donnent raisonnablement lieu de conclure que l'instrument a été utilisé, est destiné ou a été destiné à être utilisé à cette fin.

I provided the parties with the opportunity to make written submission on this.

[17]       The applicant submits that Officer Le Maire did not properly complete the determination of equivalency due to the following:

·                        the Officer did not identify in the rehabilitation submission the applicable Hong Kong Criminal Code sections;

·                        the break-in instrument that serves as the basis for the conviction was not identified by the Officer as required by ss.351(1) of the Canadian Criminal Code; and,

·                        the Officer did not include all applicable information in making the recommendation against the applicant's spouse.

[18]       The respondent submits that the Officer correctly identified the relevant section of the Canadian Criminal Code, and relies upon Strayer J.'s finding in Li v. M.C.I. (1996), 200 N.R. 307, [1996] F.C.J. No. 1060 (F.C.A.) which sets out that a finding of equivalency between two offences requires a similarity of the definitions of the offences, and a similarity of essential ingredients. Strayer J. wrote at paragraphs 17-18:

Nor in my view does a proper interpretation of subparagraph 19(2)(a.1)(i) of the Immigration Act require such a technical dissection of foreign and Canadian offences into "elements" and "defences". The institutional setting must be kept in mind. Such determinations of equivalency must be made by an adjudicator in a quasi-judicial proceeding. It is hardly to be expected that he or she is to make such fine distinctions in Canadian, much less foreign, criminal law. The purpose of the provision is obviously to exclude from Canada persons who have done things abroad, for which they have been convicted there, which Canada regards by its laws as constituting serious misconduct. This purpose would not, for example, be served by a rule that two offences are not equivalent because the requirement of a particular intent in the foreign law is treated as an element of the offence, whereas in Canadian law its lack is treated as a defence.

I believe that it would be most consistent with the purposes of the statute, and not inconsistent with the jurisprudence of this Court, to conclude that what equivalency of offences requires is essentially the similarity of definitions of offences. A definition is similar if it involves similar criteria for establishing that an offence has occurred, whether those criteria are manifested in "elements" (in the narrow sense) or "defences" in the two sets of laws. In my view the definition of an offence involves the elements and defences particular to that offence, or perhaps to that class of offences. [...] For the purpose of subparagraph 19(2)(a.1)(i) of the Immigration Act it is not necessary to compare all the general principles of criminal responsibility in the two systems: what is being examined is the comparability of offences, not the comparability of possible convictions in the two countries.

[19]       There is no issue as to whether or not the applicant's spouse was charged and convicted of the Hong Kong Criminal Code section 27 offence of "going equipped for stealing", which has been shown by the respondent to have its equivalent in section 351 of the Canadian Criminal Code. Therefore, there can be no question that the applicant's spouse was in possession of an item which fulfilled the requirements of the Hong Kong section. That fact meets the requirements of the Canadian equivalent, as evaluated by Officer Le Maire.

[20]       I am satisfied that one or more of the criminal convictions in Hong Kong are equivalent to Canadian Criminal Code offences which carry a maximum penalty of ten years imprisonment or more. On this basis, the immigration officer correctly found that the applicant's spouse was within an inadmissible class of immigrants.

[21]       In consideration of the foregoing and the standard of review, this application for judicial review is dismissed.

      (signed) Michael A. Kelen     _________________________

                     JUDGE

OTTAWA, ONTARIO

April 5, 2002