Date: 20021107
Docket: IMM-4927-01
Neutral citation: 2002 FCT 1155
Vancouver, British Columbia, Thursday, the 7th day of November, 2002
PRESENT: THE HONOURABLE MR. JUSTICE MICHEL BEAUDRY
BETWEEN:
KIN CHING LO
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
[1] This is an application under s. 82.1 of the Immigration Act, R.S.C. 1985, c. I-2 (the "Act"), for judicial review pursuant to s. 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, of a decision of Patricia Nicoll, a visa officer at the Canadian visa post in Hong Kong, dated November 14, 2001, whereby the Applicant's application for permanent residence in Canada was refused.
ISSUES
1. Was visa officer Donald Barr functus officio when he reversed a decision made by his predecessor, visa officer George Menard?
2. Was the finding of criminal equivalency between Hong Kong Public Order Ordinance s. 33, Chap. 245 ("Possession of an Offensive Weapon in a Public Place") and Criminal Code of Canada s. 88, offence of "Possession of a Weapon Dangerous to the Public Peace ("PWDPP") correct?
[2] The answer to the first question is no.
[3] The answer to the second is yes.
BACKGROUND
[4] Kin Ching Lo initially applied for permanent residence in Canada in July of 1994. At that time, he applied as an entrepreneur immigrant. He was interviewed by a visa officer on August 24, 1994. After discussing the differences between emigrating as an entrepreneur and an investor with the visa officer, Mr. Lo opted to change his application to that of an investor immigrant (Applicant's Record, page 33).
[5] During this interview, Mr. Lo advised the visa officer of his arrest at the age of 18 in 1981 for possession of an offensive weapon in a public place. Mr. Lo related that he was working at his father's restaurant when two friends came to visit. The group decided to get a snack at another restaurant. While the three were eating, another group of six or seven came into the restaurant. One of Mr. Lo's friends advised that he had quarreled with a member of the group of newcomers. Mr. Lo's companion was concerned there could be an altercation. As a result, Mr. Lo's group called for the bill and left the restaurant. Just before getting in the taxi, the friend of Mr. Lo who had quarreled with the group of newcomers took out three fruit knives and handed one to Mr. Lo and to the third friend. The knives were for protection. The taxi was stopped at a police roadblock. Mr. Lo and his two friends were caught with the knives. Mr. Lo was charged, convicted and sentenced to six months in a detention centre for possession of an offensive weapon in a public place. The co-accused persons were sentenced to nine months and three years, respectively. Mr. Lo never saw these two friends again (Applicant's Record, page 33).
[6] During his first interview, Mr. Lo was advised of the rehabilitation process. However, because Mr. Lo changed his application from entrepreneur to investor and the visa officer who conducted the interview was transferred, it took two years before any action on his file was taken.
[7] According to CAIPS notes, on February 24, 1997, a decision was made to allow Mr. Lo to apply for rehabilitation. The file was reviewed again on May 8, 1997, wherein the visa officer decided that the offence of possession of an offensive weapon in a public place is equivalent to the Canadian Criminal Code offence of Possession of a Weapon Dangerous to the Public Peace ("PWDPP") s. 88 R.S.C. 1985 c. C-46 (Applicant's Record, pages 34-35). This is a hybrid offence. Currently, if the Crown proceeds indictably, the accused faces a maximum sentence of ten years in custody. In 1981, PWDPP was a purely indictable offence.
[8] The visa officer also noted that Mr. Lo had been charged with possession under the more serious Public Order Ordinance, rather than possession under the Summary Offences Ordinance.
[9] The reviewing visa officer decided Mr. Lo and his spouse should be interviewed again. This second interview occurred on June 10, 1997. Visa Officer Menard found the Applicant and his wife impressive in their knowledge of their respective businesses. There were no concerns about the origin of the 2 million dollars the Applicant and his wife had accumulated in the last 10 years.
[10] Visa Officer Menard also heard the story of the offence of which Mr. Lo was convicted. It was this visa officer's position that there was no similar offence in Canada. In addition, this visa officer was aware that police stopped vehicles regularly to look for illegal immigrants. Based on an assessment of demeanor and credibility, Visa Officer Menard found that Mr. Lo may be eligible for rehabilitation, and was willing to make a positive recommendation to the Minister to that effect (Applicant's Record, pages 35-37).
[11] The file was again reviewed by Visa Officer Menard on July 14, 1997. He decided that PWDPP was not the equivalent of the possession of an offensive weapon in public, and that Mr. Lo was not inadmissible based on the past conviction. Mr. Lo was informed of this in a handwritten letter, and it appears that it was at this time Mr. Lo began the process of providing his investment monies to the Aurora II investment fund of the Northwest Territories in order to complete the application for permanent residence (Applicant's Record, page 37).
[12] Mr. Lo's file was reviewed again on June 23, 1998, because Visa Officer Menard was transferred. The new officer, Donald Barr, decided that Mr. Lo's possession conviction in fact was the equivalent of PWDPP, that Mr. Lo was inadmissible, and that he would have to apply for rehabilitation (Applicant's Record, pages 37-38). A letter to this effect was sent on July 27, 1998 (Applicant's Record, page 47).
[13] On the 27th of July, 1998, a note appears in CAIPS - I agree with interviewing officer not rehabed - that was entered by Donald Barr (Applicant's Record, page 40). On May 27, 2000, Mr. Barr sent the Minister an Amended Recommendation on the Applicant's Rehabilitation Application, recommending against a favourable rehabilitation finding (Respondent's Record, page 198). Mr. Barr stated:
The length of these sentences is significant and incongruous with an innocuous incident of the nature described in Mr. Lo's submission. Accordingly, it is possible that Mr. Lo failed to be completely candid and forth coming in providing a full account of the circumstances of the occurrence and the magnitude of the offence he has committed. Mr. Lo has tendered a statutory declaration in support of his submission that he is deserving of exceptional relief to over come his criminal inadmissibility. In fact. Mr. Lo has been the exclusive source for information concerning his involvement in the commission of his crime. As such there is no corroborating material to add credence to his account or objectivity to his claims. Consequently, an unavoidable uncertainty remains respecting precisely what actions were performed by Mr. Lo in the commission of his crime.
(Applicant's Record, page 54)
[14] Mr. Lo did attempt to provide the visa officer with a transcript of his plea and sentencing. However, due to the length of time since the conviction and because the conviction was considered spent by virtue of subsection 2(1) of the Hong Kong Rehabilitation of Offenders Ordinance, all court records were destroyed except the certificate of trial (pages 50-51 Applicant's Application Record).
[15] In August of 2000, Mr. Barr departed from the office, and all of his active files were inherited by Visa Officer Patricia Nicoll. She first became aware of the Lo file in October of 2000. She reviewed the file and did not disagree with the conclusions reached by Mr. Barr.
[16] On June 20, 2001, the Minister advised Visa Officer Nicoll that the application for Mr. Lo's rehabilitation had been refused. No reasons were given for the refusal. Because the Minister refused Mr. Lo's application for rehabilitation, he remained an inadmissible person. Visa Officer Patricia Nicoll therefore refused to grant his application for permanent residence in Canada.
ARGUMENTS OF THE PARTIES
The Applicant's Position
[17] When Visa Officer Donald Barr took over the Applicant's file from Visa Officer Georges Menard, there was nothing left to be done on the file. It was "visa ready". No new information came to light after Visa Officer Barr took over the file. In the circumstances, Visa Officer Barr acted without jurisdiction in reversing the decision of his predecessor.
[18] In the alternative, Visa Officer Barr breached the legitimate expectations of the Applicant Lo, as well as the tenets of natural justice, by not giving Mr. Lo the opportunity to make submissions on the criminal equivalency matter, as per Sadeghi v. Canada (Minister of Citizenship and Immigration) [2000] 4 F.C. 337 (F.C.A.). In that decision, the visa officer refused to issue a visa to an immigrant who scored 72 points because of limited knowledge of Canada (regarding particularly the employment conditions in Canada), limited practical experience, lack of professional contacts in Canada, and lack of preparedness to go to Canada. The Court held that:
Paragraph 11(3)(b) is an extraordinary power intended for exceptional cases, and does not provide visa officers with a general discretion to revisit their assessment under the specific selection criteria which are intended to ensure a certain objectivity and uniformity in decision-making by visa officers.
[19] In addition, Visa Officer Barr made an error when he decided that the Hong Kong weapons possession offence is equivalent to the Canadian weapons possession offence. In Canada, s. 88 of the Criminal Code is a full mens rea offence, requiring the intention to use a weapon for a purpose dangerous to the public peace. In contrast, the possession offence in Hong Kong is complete once possession is established.
[20] In the third alternative, Visa Officer Barr did not equate the Hong Kong possession offence to the correct Canadian offence. It is the submission of the Applicant that the correct equivalent to the Hong Kong possession charge is carrying a concealed weapon under s. 90 of the Criminal Code, as it does not require that possession be for a purpose dangerous to the public peace.
[21] Based on the foregoing, the Applicant requests that the Court make a determination that the Canadian and Hong Kong possession offence are not equivalent.
The Respondent's Position
[22] The Respondent is of the opinion that Visa Officer Patricia Nicoll is the decision-maker in this instance, and not the Minister. She did provide reasons for refusing the Applicant's application in her letter dated November 1, 2001. She made her decision with the entire tribunal record before her.
[23] A visa officer is not functus officio from changing an inadmissibility ground prior to the issuance of a visa, as per Park v. Minister of Citizenship and Immigration, 2001 FCA 165. In that case, the visa officer reversed a decision to issue a visa six months after advising Mr. Park a visa would be issued to him. The decision was reversed because Mr. Park did not tell the visa officer about a conviction for drinking and driving. The Court decided that the visa officer was not functus officio, given that he did not have an explicit statutory power to make a decision to issue a visa.
[24] With respect to the criminal equivalency issue, the Respondent agrees that the proper test to be used is found in Hill v. Canada (Minister of Employment and Immigration) (1987), Imm. L.R. (2d) 1 (Fed. C.A).
[25] In Li v. Canada (Minister of Citizenship and Immigration), [1997] 1 F.C. 235 at para. 13, Strayer J.A. stated that the fundamental test of criminal equivalency is, "...would the acts committed abroad and punished there have been punishable here?"
[26] Visa Officer Nicholl went through each of the three ways by which foreign laws are assessed as compared to Canadian law, and the circumstances of the offence as related by Mr. Lo. The Respondent submits the two offences are equivalent under each of the three methods of equivalency.
ANALYSIS
Standard of Review
[27] The standard of review with respect to criminal rehabilitation decisions was discussed by McKeown J. in Thamber v. Canada (Minister of Citizenship and Immigration) [2001] F.C.J. No. 332. It was noted at para. 9:
In light of the Supreme Court of Canada's decision in Baker v. M.C.I., [1999] 2 S.C.R. 817 (S.C.C), I am satisfied that the standard of review of an immigration officer's decision on criminal rehabilitation is that of reasonableness simpliciter. The impugned decision-making process is similar to that of an H & C application made pursuant to subsection 114(2) of the Act.
Functus Officio
[28] The Applicant submits that Visa Officers Donald Barr and Patricia Nicoll were unable to reverse the decision of Visa Officer Georges Menard with respect to issuing a visa to Mr. Lo. The Applicant's argument is based on Sadeghi. I must agree with the Respondent on this point, who distinguishes this case because it arises out of a visa officer abusing her power to exclude an immigrant under s. 113 even though that immigrant met all the criteria under the rest of the Act. In the case at bar, the visa officers were of the opinion that the Applicant was inadmissible based on his criminal history and excluded him under s. 19 of the Act. Once an assessment has been made that an applicant is criminally inadmissible, the visa officer has no discretion to grant a visa.
[29] In Park, supra, the Court stated at para. 7:
We are all of the opinion that the doctrine of functus officio has no application to the letter written on December 20, 1995. We accept that the letter means that the visa officer believed that Mr. Park was qualified for a visa and that visas would be issued to the family on receipt of the passports. However, the relevant statutory powers conferred on visa officers are to issue and to refuse visas, and although visas had apparently been printed, no visa was ever issued to Mr. Park. While one can assume that these powers are normally exercised on the basis of a prior decision, since the Act does not expressly grant the power to make a decision to issue a visa, there was no exercise of a statutory power to which the functus doctrine could apply. [Emphasis added]
[30] The question to be answered is whether the doctrine of functus will apply when a subsequent visa officer refuses to issue a visa due to a perceived mistake by the visa officer who initially offered a visa.
[31] Jowitt's Dictionary of English Law (2nd ed. 1977) defines functus officio as "having discharged his duty"; an expression applied to a judge, magistrate or arbitrator who has given a decision or made an order or award so that his authority is exhausted." Justice Sopinka dealt with the issue of functus officio as it pertains to administrative tribunals in Chandler v. Alberta Association of Architects [1989] 2 S.C.R. 848. He stated:
As a general rule, once such a tribunal has reached a final decision in respect to the matter that is before it in accordance with its enabling statute, that decision cannot be revisited because the tribunal has changed its mind, made an error within jurisdiction or because there has been a change of circumstances. It can only do so if authorized by statute or if there has been a slip or error within the exceptions enunciated in Paper Machinery Ltd. v. J. O. Ross Engineering Corp., supra.
[32] Given the principles stated by the Supreme Court of Canada and the findings of the Federal Court of Appeal with respect to the powers of a visa officer, I am of the opinion that functus officio does not apply in this case. Practically speaking, visa officers are transferred all the time. A finding of functus would mean that a visa officer who is taking over the caseload of a departing officer cannot review or alter the decisions, even though a visa has not yet issued. In the case at bar, Visa Officer Menard had not yet issued a visa. A finding of functus officio would mean that Visa Officers Barr and Nicoll could only act as rubber stamps for Visa Officer Menard's decision, despite the fact that they would have been the ones actually issuing the visa.
[33] In addition, there are significant policy reasons that favour allowing visa officers to review and correct the decisions of other visa officers. In this case, the reviewing visa officers believed their predecessor had made a mistake which would allow a criminal into Canada. In my opinion, visa officers must retain the discretion to look at previous decisions in order to ensure immigrants are not inappropriately allowed into Canada.
[34] With respect to the submission that Mr. Lo had the right to be heard on the criminal equivalency matter after the visa officers changed their position and assessed him as inadmissible under s. 19 of the Act, it appears to me that Mr. Lo had no more factual information to add.
[35] In my opinion, the visa officer was not required to give Mr. Lo the chance to make submissions with respect to criminal equivalency, nor were the subsequent visa officers functus Visa Officer Menard's decision to issue a visa.
Criminal Equivalency
[36] It is the position of the Applicant that the Hong Kong offence of possession of an offensive weapon in a public place is not the equivalent of possession of a weapon dangerous to the public peace, a Canadian offence. As noted above, Urie J.A. in Hill, supra, described the three methods at page 9 in these words:
.. the equivalency can be established in three ways: first, by a comparison of the precise wording in each statute both through documents and, if available, through the evidence of an expert or experts in the foreign law and determining therefrom the essential ingredients of the respective offences; two, by examining the evidence adduced before the adjudicator, both oral and documentary, to ascertain whether or not that evidence was sufficient to establish that the essential ingredients of the offence in Canada had been proven in the foreign proceedings, whether precisely described in the initiating documents or in the statutory provisions in the same words or not; and three, by a combination of one and two.
[37] In Li v. Minister of Citizenship and Immigration, supra, Strayer J.A. reproduced the above-cited portion of the decision of Hill, then commented on it at page 249 in these words:
This approach has been approved by the Court in subsequent cases [Steward v. Minister of Employment and Immigration, [1988] 3 F.C. 487 at 493 (F.C.A.), Moore v. Minister of Employment and Immigration, unreported, A-501-88 at 4, January 31, 1989 (F.C.A.)]. It appears from the jurisprudence that the second way of determining equivalency, as suggested by Urie J.A., is particularly useful where there is insufficient evidence of the legal scope of the foreign offence or where it appears that the comparable Canadian offence is narrower than the foreign offence. In such a case it is permissible for the adjudicator to consider evidence as to the acts actually committed by the offender and for which he was convicted abroad. This approved second way also points up the fundamental test of equivalence: would the acts committed abroad and punished there have been punishable here?
[38] Visa Officer Nicoll applied all three methods of equivalency before arriving at her conclusion that there was criminal equivalency and the Applicant was therefore a member of the class of persons described in subparagraph 19(1)(c.1)(ii) of the former Immigration Act.
[39] Visa Officer Nicoll compared the essential elements of subsection 33(1), Chap. 245 of the Hong Kong Public Ordinance and the s. 88 of the Criminal Code equivalency. She put side to side both statutes, then noted the essential elements and examined the definition of "offensive weapon" in the Hong Kong ordinance.
[40] She concurred with the reasoning of former Visa Officer Barr and concluded that the Applicant had in fact the fruit knife not for self-defence, but for a purpose dangerous to the public peace.
[41] On the second method of the Hill, supra test, Visa Officer Nicholl considered the Applicant's evidence as to the acts he actually committed and was convicted of in Hong Kong and asked the question "would the acts committed abroad and punished there have been punishable in Canada?"
[42] Visa Officer Nicholl came to the conclusion that the acts committed in Hong Kong, if they were committed in Canada, would constitute the s. 88 Criminal Code offence of "Possession of a Weapon Dangerous to the Public Peace", and explained her conclusion in her cross-examination.
[43] I am satisfied that there are no reviewable errors in the conclusions adopted by Visa Officer Nicholl on the criminal equivalency method. She applied each of the three methods and found equivalency under each method.
[44] I agree with Visa Officer Nicholl that the Applicant was a member of the inadmissible class of persons described in subparagraph 19(1)(c)(i) of the former Immigration Act.
[45] This application for judicial review will be dismissed.
O R D E R
THIS COURT ORDERS that:
The application for judicial review is dismissed.
(Sgd.) "Michel Beaudry"
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4927-01
STYLE OF CAUSE: KIN CHING LO v. THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: November 6, 2002
REASONS FOR ORDER AND ORDER: BEAUDRY J.
APPEARANCES:
Mr. Ron Pederson for Applicant
Mr. Lawrence Wong
Esta Resnick for Respondent
SOLICITORS OF RECORD:
Lawrence Wong & Associates for Applicant
Vancouver, B.C.
Morris Rosenberg for Respondent
Deputy Attorney General of Canada