Date: 19980204
Docket: IMM-1063-97
BETWEEN:
JONG IN PARK
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
RICHARD J.:
NATURE OF THE PROCEEDING
[1] The applicant, in an originating notice of motion filed on March 14, 1997, seeks an order setting aside the decision made by the Second Secretary (Immigration), Canadian Embassy, Immigration Section, Seoul, Korea dated June 10, 1996 denying the applicant's application for permanent residence in Canada and an order in the nature of mandamus compelling the visa officer to issue immigrant visas to the applicant, his wife and his two sons.
[2] By order dated February 6, 1997, Mr. Justice Cullen granted the applicant's application for an extension of time to file an application for judicial review.
[3] At the opening of the hearing before me, I denied the applicant's motion that this application be adjourned to be heard at a later date with another application brought by the same applicant in IMM-3327-97.
BACKGROUND
[4] On August 3, 1995, the applicant's application for immigration to Canada was assessed by Mr. G. Chubak, Second Secretary, Immigration, (the Officer) at the Canadian Embassy in Seoul, Korea (the Embassy). An interview was conducted by the Officer in the course of processing the application.
[5] During the course of the interview, the applicant satisfied the Officer that he met the selection criteria as an entrepreneur based on an assessment of his experience and his intentions in Canada. On his application for permanent residence in Canada, and at the interview, the applicant stated that he had not been convicted or charged with any crime or offence in any country. This statement was confirmed and signed by the applicant.
[6] On December 20, 1995, a letter was sent to the applicant indicating that the Embassy was prepared to issue a visa for the applicant and his accompanying dependants as it appeared that he had complied with all statutory requirements for immigration with the exception that he provide copies of his Resident Passport which was required to facilitate access to foreign exchange for his ultimate settlement in Canada. The applicant required the December 20, 1995 letter from the Embassy in order to get passports which would allow him to exit Korea.
[7] On January 17, 1996, information was received at the Embassy indicating that the applicant may be criminally inadmissible to Canada.
[8] The applicant subsequently attended a second interview on January 18, 1996, to clarify the aforementioned admissibility issues at which time he indicated that he had been charged and convicted of impaired driving on March 20, 1992. At this time, the Officer discussed the requirements of subsection 9(3) of the Act regarding the requirement to answer all questions truthfully. The applicant's response was that as he had not killed nor injured anyone, his conviction was insignificant.
[9] Following a discussion of the circumstances surrounding the conviction with the applicant, the applicant was counselled by the Officer regarding the Canadian Criminal Code (the Code) equivalency of the Korean charge of impaired driving and that it would lead to a refusal of his application pending a review of the court records of the conviction confirming this equivalency. The Officer asked the applicant to provide the court transcripts.
[10] Upon receipt of the court documents, the Officer determined that the applicant's conviction equated to the offence described in section 253 of the Code and punishable by way of summary conviction or indictment under section 255 of the Code.
[11] A final review of all aspects of the applicant's application was made on June 10, 1996. The application was refused as the applicant was criminally inadmissible.
[12] The operative part of the Officer's letter of December 20, 1995, reads as follows:
| I am pleased to advise that we have completed processing your application and that we are prepared to issue the immigrant visas for you and your family upon receipt of copies of your passports valid to allow your exit from Korea to take residency in Canada |
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| Your immigrant visas will be valid until 07/Aug/1996. |
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[13] The operative part of the Officer's letter of June 10, 1996, reads as follows:
| This refers to your application for permanent residence in Canada. |
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| I have now completed the assessment and review of your application. Notwithstanding that a letter was issued to you dated December 20, 1995 indicating that a visa would be issued pending submission of your passport details, information provided by you at interview on or about February 01, 1996 and substantiated by court documents on or about February 20, 1996 supersedes said letter. I regret to inform you that you come within the inadmissible class of persons described in paragraph 19(2)(a) of the Immigration Act, 1976 because you have been convicted of an offence contrary to the Korean Road Traffic Act, inter alia, Section 107-2-1, to wit, impaired driving. This offence, which corresponds to Section 253 of the Canadian Criminal Code (C.C.C.), if committed in Canada, would constitute an offence that may be punishable by way of indictment or summary conviction under Section 255 of the C.C.C. and for which a maximum term of imprisonment not exceeding five years may be imposed. |
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| The Immigration Act, paragraph 19(1)(c), exempts persons from this inadmissible class if they satisfy the Governor in Council that they have rehabilitated themselves and that at least five years have elapsed since the termination of the sentence imposed for the offence. In your case, you are not eligible for consideration because the requisite five year period has not elapsed, the conviction being registered in March, 1992. Nevertheless, this does not prevent an individual from applying directly to the Governor in Council for this exemption. |
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[14] In his affidavit filed in this application, the Officer gave the following explanation:
| My references to s. 19(2)(a) and s. 19(1)(c) of the Act in my refusal letter were purely accidental and unintended. Section 19(2)(a) and s. 19(1)(c) of the Act were never considered in the assessment of the applicant's application. Similarly, my reference to "Governor in Council" instead of the Minister was also accidental and a result of using an incorrect template. I was always aware of the fact that it is the Minister who must be satisfied on the issue of rehabilitation, not the Governor in Council. |
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GROUNDS FOR REVIEW
[15] At the hearing, counsel for the applicant raised three issues.
| 1) the decision denying the application made on June 10, 1996, was made without jurisdiction since the Officer was functus; |
| 2) the decision is incorrect on its face since it cites the wrong provisions of the Immigration Act; |
| 3) there is no evidence to support the finding of equivalence. |
ANALYSIS
First Ground
[16] Subsection 2(1) of the Act defines a visa as a document issued or a stamp impression made on a document by a visa officer.
[17] Subsection 9(1) of the Act provides that every immigrant shall make an application for and obtain a visa before that person appears at a port of entry.
[18] Subsection 8(1) of the Act provides that where a person seeks to come into Canada, the burden of proving that that person has a right to come into Canada or that her admission would not be contrary to this Act or the Regulations rests on that person.
[19] On the facts of this case, I have serious doubts that the applicant did obtain a visa. The letter of December 20, 1995, states that the processing of the application has been completed and that the Immigration Section is prepared to issue the immigrant visas to the applicant and his dependants upon receipt of copies of their passports. The letter evidences an intent to issue the immigrant visas. The record shows that these visas were never physically handed over to the applicant and, accordingly, he would have been unable to produce them at the port of entry in Canada when seeking landing.
[20] However, I prefer to proceed on the ground that the visa officer was fulfilling his duty to consider all relevant evidence affecting admissibility at all times prior to landing and, in the circumstances, was entitled not to deliver the immigrant visa to the applicant because he was inadmissible.
[21] The issue of criminal inadmissibility came to light for the first time after the Officer's letter of December 20, 1995. The Officer's further investigation resulted from a "poison call" to the Embassy in Seoul, Korea.
[22] The applicant's inadmissibility to Canada existed all along. The applicant concealed this fact from the Officer.
[23] The applicant was inadmissible prior to the initial interview. Here, the visa officer was not revisiting the issuance of a visa to a holder who was admissible at the time the visa was issued. This is different from a situation where the holder of a visa is convicted of an offence prior to landing. In that case, it is for the port of entry Officer to refuse landing because of inadmissibility grounds.
[24] Even if it can be said that the Officer reconsidered his decision of December 20, 1995, by considering the facts regarding criminal activity disclosed by the applicant thereafter, the Officer was entitled to do so in these circumstances.
[25] In the Chan case1, the applicant applied for permanent residence and was subsequently issued a visa. After she had received her visa, it was discovered that Chan was a member of a triad. The visa officer in that case revoked the visa and Chan applied for judicial review, arguing that the Officer, in making his decision to revoke the visa, was functus officio. In dismissing this aspect of the applicant's application, Mr. Justice Cullen commented on the ability of a visa officer to reconsider a decision to issue a visa:
| Does the Immigration Act contemplate that a visa officer can reconsider his decision? There is nothing in the statute that deals with whether a visa officer may review decisions already made. I would take this silence, however, not to be a prohibition against reconsideration of decisions. Rather, I think that the visa officer has jurisdiction to reconsider his decision, particularly when new information comes to light. One can well imagine a situation opposite the one in the case at bar. What if the applicant was initially denied her visa because the officer considered her to be a member of the Sun Yee On triad? Could she not have brought new information to light, asking the visa officer to reconsider his decision? If the new information was persuasive, I have little doubt that the visa officer would have jurisdiction to issue a new decision, granting a visa. In my view, the same logic applies to the case at bar. The visa officer, upon receiving information that the applicant was the member of an inadmissible class, had jurisdiction to reconsider his earlier decision and revoke her visa. To squeeze the administrative decisions of visa officers into the same "functus officio" box that is imposed on judicial decision-makers would, in my view, not accord with the role and duties of visa officers. |
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[26] In the Chan case, the visa had actually been given to the applicant, only to be revoked later on the grounds of her criminal inadmissibility. In the case at bar, the visa had not even been given to the applicant before the issue of his criminal inadmissibility was discovered and explored at a subsequent interview. The Officer properly dealt with the subsequent revelation by the applicant of his criminal inadmissibility and the applicant's submission regarding the Officer's inability to reconsider the issuance of an immigrant visa must fail.
[27] Accordingly, I find that the visa officer had the jurisdiction, in these circumstances, to make the determination contained in the letter of June 10, 1996.
Second Ground
[28] The applicant is correct when he states that the references to paragraphs 19(2)(a) and 19(1)(c) of the Act, and the reference to the Governor-in-Council, are errors. These were inadvertent mistakes made by the Officer as a result of his using the wrong template or form letter when preparing the refusal letter. The Officer explained this oversight in his affidavit and again when he was cross-examined.
[29] The errors made by the Officer are not material to the decision made by him. They are clearly mistakes. There is clear, uncontroverted evidence from the Officer which unequivocally indicates that (a) the proper sections of the Act were applied to the circumstances of the applicant's case, and (b) the Minister is the one who must be satisfied of the issue of rehabilitation. The applicant clearly understood the inadmissibility grounds which were relied on by the Officer. An improper statement of the appropriate sections can be overcome by the application of the proper sections.
[30] In this light, the Officer's decision can stand on its own notwithstanding these mistakes.
Third Ground
[31] The applicant was convicted of the offence of impaired driving under Article 41 of the Korean Road Traffic Act. The applicant was punished under Article 107-2 of the Act, which provides for a penalty for breach of Article 41. The elements of the Korean offence under Article 41 are (a) driving a motor vehicle, and (b) doing so while intoxicated. The evidence also indicates that the "Presidential Decree for Road Traffic Act" stipulates that the standard of intoxication referred to in Article 41 is .05%. The elements of the Canadian Criminal Code offence are (a) operating a motor vehicle, and (b) doing so while the person's ability is impaired by alcohol or drug with more than 80 mg. of alcohol in 100 ml. of blood, defined as a blood alcohol level of .08%.
[32] The facts of this case indicate that the applicant's blood alcohol level was .24% when he was stopped by the police while operating his motor vehicle. It is clear that the acts of the applicant, if committed in Canada, would have been punished in Canada under section 253 of the Criminal Code.
[33] In Li v. Canada (Minister of Citizenship and Immigration)2, Mr. Justice Strayer stated at paragraph 25:
| As indicated earlier, in my view the purpose of subparagraph 19(2)(a.1)(i) is to render inadmissible persons who have been convicted of acts abroad which, if committed in Canada, would be denounced by giving rise to liability for a prosecution by way of indictment. What must be compared are the factual and legal criteria for establishing the offence both aboard and in Canada. It is not necessary to compare the adjectival law by which a conviction might or might not be entered in each country. The literal meaning of paragraph 19(2)(a.1) does not require such comparisons. Nor would such comparisons be consistent with the scheme of the Act under which equivalency is to be determined. The Act does not contemplate a retrial of the case applying Canadian rules of evidence. Nor does it contemplate an examination of the validity of the conviction abroad. |
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[34] The Summary Order by the Northern Branch Office of the Seoul District Court records a conviction for a violation of the Traffic Act to which the applicant herein pleaded guilty. Attached to the Order is a description of the violation which recites in part that the applicant herein was checked on the street showing 2.4 milligram alcohol per 1 millilitre of blood, a reading of .24% blood alcohol level.
[35] There was evidence before the Officer that the applicant was driving his motor vehicle and was stopped by the police with a .24% blood alcohol level. This is an act which, if committed in Canada, is an offence punishable under section 253 of the Criminal Code.
CONCLUSION
[36] Accordingly, the application for judicial review is dismissed.
SERIOUS QUESTION
[37] After hearing representations of counsel, I am prepared to certify the following question:
| Once a decision to issue an immigrant visa is taken, is the visa officer functus officio or, does the visa officer have jurisdiction to reconsider his/her decision on the ground of the holder's inadmissibility prior to the issuance of the visa? |
__________________________
Judge
Ottawa, Ontario
February 4, 1998
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1 (1996) 114 F.T.R. 247 (F.C.T.D.); see also Syed v. Minister of Employment and Immigration (1994) 83 F.T.R. 285 at 288. For a contrary view, see Dumbrava v. Canada (Minister of Citizenship and Immigration) [1995] F.C.J. No. 1238 Court File No. IMM-3068-94 at paragraph 19.
2 [1996] F.C.J. No. 1060 Court File No. A-329-95 (F.C.A.).
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