Date: 19980430
Docket: IMM-2138-97
BETWEEN:
DALISAY PLANDANO LAZARO
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
ROTHSTEIN J.
[1] This is a judicial review of a decision of an Immigration and Refugee Board adjudicator determining the applicant to be a member of an inadmissible class under paragraphs 19(1)(c.1)(i), 19(2)(a.1)(i) and 27(2)(g) of the Immigration Act, R.S.C. 1985, C. I-2, as amended.1 Specifically, the adjudicator concluded that the applicant:
| (a) was described in paragraph 19(1)(c.1)(i) because offences she committed in Hong Kong would, if committed in Canada, constitute the offences of forgery or knowingly using a forged document contrary to sections 366 and 368 respectively of the Criminal Code of Canada, R.S.C. 1985, c. C-46; |
| (b) was described in paragraph 19(2)(a.1)(i) because offences she committed in Hong Kong would, if committed in Canada, constitute the offence of knowingly making a false statement in connection with her application for admission contrary to paragraph 94(1)(h) of the Immigration Act; |
| (c) remained in Canada by reason of misrepresentation of a material fact, i.e. failure to disclose her Hong Kong offences, contrary to paragraph 27(2)(g) of the Immigration Act. |
[2] The applicant, a citizen of the Philippines, applied to immigrate to Hong Kong and used a Philippines passport that she knew contained incorrect information in respect of her age. She would not have been eligible to immigrate to Hong Kong had her correct age been shown. On June 29, 1988 she was convicted in Hong Kong of:
| (a) making a false representation to an immigration officer lawfully acting under Part II of the immigration ordinance; and |
| (b) furnishing false particulars to a Registration Officer. |
THE FORGERY OFFENCES
[3] Sections 366 and 368 of the Criminal Code provide in relevant part:
| 366. (1) Every one commits forgery who makes a false document, knowing it to be false, with intent |
| (a) that it should in any way be used or acted on as genuine, to the prejudice of any one whether within Canada or not; or |
| (b) that a person should be induced, by the belief that it is genuine, to do or to refrain from doing anything, whether within Canada or not. |
| (2) Making a false document includes |
| (a) altering a genuine document in any material part; |
| (b) making a material addition to a genuine document or adding to it a false date, attestation, seal or other thing that is material; or |
| (c) making a material alteration in a genuine document by erasure, obliteration, removal or in any other way. |
| . . . |
| 368. (1) Every one who, knowing that a document is forged, |
| (a) uses, deals with or acts on it, or |
| (b) causes or attempts to cause any person to use, deal with or act on it, |
| as if the document were genuine, |
| (c) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years; or |
| (d) is guilty of an offence punishable on summary conviction. |
| . . . |
[4] With respect to the applicant's application to immigrate to Hong Kong, there is no evidence before the adjudicator that she had made any document, i.e. the passport is a document made by the Government of Philippines. The Hong Kong offences, as described in the record, do not involve the making of a false document. Respondent's counsel asked for time to ascertain whether there was any jurisprudence to the effect that the use of a document knowing it contained false information could constitute the "constructive making" of that document and therefore forgery. He has advised he could find none. Moreover, the applicant's passport was not, as the adjudicator concluded, "altered in a material way" in that "added to this genuine document was a false date of birth". On the evidence before the adjudicator, the document itself was not made by the applicant, "altered" or "added to" and therefore his reasons for concluding that the Philippines passport was "forged" are not sustainable. The adjudicator erred in finding that the offences committed by the applicant in Hong Kong constituted the offences of forgery or knowingly using a forged document in Canada.
MAKING FALSE STATEMENTS
[5] The adjudicator then went on to find that the applicant had also committed offences in Hong Kong that were analogous to that set out in paragraph 94(1)(h) of the Immigration Act, which provides:
| 94. (1) Every person is guilty of an offence who |
| . . . |
| (h) knowingly makes any false or misleading statement at any examination, inquiry or hearing under this Act or in connection with the admission of any person or the application for admission by any person; |
The adjudicator also found that the applicant had made misrepresentations of a material fact in Canada contrary to paragraph 27(2)(g) of the Immigration Act.
[6] On the basis of his finding that the applicant was described in paragraphs 94(1)(h) and 27(2)(g), the adjudicator noted that he was required to issue either a deportation order or a departure order. However, because of his conclusion with respect to the more serious forgery offences, he found that he had no discretion and was required to issue a deportation order, and he did so. Clearly, as he was in error with respect to his forgery findings, he also erred in deciding that he had no discretion as to whether to issue a departure order or deportation order.
CONCLUSION
[7] For these reasons, the judicial review will be allowed and the matter remitted to a different adjudicator for redetermination. For guidance to the new adjudicator and the parties, I would add the following directions:
| (a) In comparing the applicant's Hong Kong offences with Canadian offences, there should be placed before the adjudicator, if possible, the relevant Hong Kong statutes so that their precise wording can be compared with that of the relevant Canadian statutes. While this is not a mandatory requirement (see Li v. Canada (Minister of Citizenship and Immigration), [1997] 1 F.C. 235 (C.A.) at 248-49), it is preferable because it would provide a greater degree of certainty in the comparison that must be made. For example, paragraph 94(1)(h) requires that a misrepresentation be made "knowingly". The evidence in the record describing the applicant's convictions in Hong Kong does not make reference to the word "knowingly" and does not disclose whether the relevant Hong Kong ordinance uses the word "knowingly". It is not for the Court to speculate on the wording of the Hong Kong statute or the significance of any difference between the Hong Kong and Canadian statutes. However, if there is no knowledge requirement for the Hong Kong offences, the comparison with paragraph 94(1)(h), which has an express knowledge requirement, may be tenuous. |
| (b) With respect to the applicant's alleged misrepresentation under paragraph 27(2)(g) of the Immigration Act, the adjudicator should take into account the Hong Kong Rehabilitation of Offenders ordinance and the reasons given by the applicant for not disclosing her Hong Kong offences in her application for permanent residence in Canada. While the Hong Kong Rehabilitation of Offenders ordinance does not operate to vacate her Hong Kong convictions for Canadian immigration purposes (see Lui v. The Minister of Citizenship and Immigration (1997), 134 F.T.R. 308 at para. 11), the previous adjudicator found the reasons given by the applicant for not disclosing her Hong Kong convictions to be plausible and the Hong Kong ordinance at least gives the applicant an arguable reason for non-disclosure. In addition, the |
| adjudicator should have regard to whether the misrepresentation under paragraph 27(2)(g) must be made knowingly and if so whether this has any bearing in this case. |
"Marshall E. Rothstein"
J U D G E
CALGARY, ALBERTA
APRIL 30, 1998
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 19980430
Docket: IMM-2138-97
BETWEEN:
DALISAY PLANDANO LAZARO
Applicant
- and -
THE MINISTR OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-2138-97
STYLE OF CAUSE: DALISAY PLANDANO LAZARO
v. THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: April 30, 1998
REASONS FOR ORDER OF ROTHSTEIN, J.:
DATED: APRIL 30, 1998
APPEARANCES:
Mr. Sil Salvaterra for the Applicant
Mr. Brian Frimeth for the Respondent
SOLICITORS OF RECORD:
Community & Legal Aid Services Program
North York, Ontario for the Applicant
G. Thomson
Deputy Attorney General of Canada
Ottawa, Ontario for the Respondent
__________________ 1 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, . . . 19. (2) No immigrant and, except as provided in subsection (3), no visitor shall be granted admission if the immigrant or visitor is a member of any of the following classes:
(a.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 by way of indictment under any Act of Parliament by a maximum term of imprisonment of less than ten years,
27. (2) An immigration officer or a peace officer shall, unless the person has been arrested pursuant to subsection 103(2), forward a written report to the Deputy Minister setting out the details of any information in the possession of the immigration officer or peace officer indicating hat a person in Canada, other than a Canadian citizen or permanent resident, is a person who. . . (g) came into Canada or remains in Canada with a false or improperly obtained passport, visa or other document pertaining to that person's admission or by reason of any fraudulent or improper means or misrepresentation of any material fact, whether exercised or made by himself or by any other person,