Rena v. Canada (Minister of Citizenship and Immigration), 2003 FC 1002

                                                                    Date: 20030828

                                                               Docket: IMM-3715-02

                                                           Citation: 2003 FC 1002

Between:

                              DELU NOOR RENA

                                                                Applicant

                                 - and -

                      THE MINISTER OF CITIZENSHIP

                             AND IMMIGRATION

                                                               Respondent

                          REASONS FOR ORDER

PINARD J.:

[1]    The applicant seeks judicial review of a decision of the Appeal Division of the Immigration and Refugee Board (the "Board"), dated July 3, 2002, dismissing in part the applicant's appeal from a decision of Visa Officer Mick Chong (the "officer"), dated November 23, 2000, in which he rejected the sponsored application for landing of the applicant's husband and son. The officer had found the applicant's husband to be inadmissible as a person described in subparagraph 19(1)(c.1)(ii) of the Immigration Act, R.S.C. 1985, c. I-2 (the "Act").

[2]    The applicant has been a Canadian citizen since April 2001. She came to Canada from Bangladesh in 1996 after fleeing her husband's abuse. She was recognized as a refugee in December 1997, because she had been a victim of spousal violence and it was considered dangerous for her to return to Bangladesh. The applicant brought her daughter, Shezuti, with her and gave birth to a son, Rakibul Karim, shortly after her arrival in Canada. She had left behind her elder son, Zunaet, because at the time of her escape he had been asleep with her husband, of whom she was terrified.

[3]    The applicant applied to sponsor her husband and son in 1998 and returned to Bangladesh from January to May of 1999, at which time she alleges that she saw noticeable changes in her husband's behaviour which convinced her to resume her relationship with him. The applicant's younger son is visually impaired, and the applicant alleges that his father's presence is necessary for his well-being.

[4]    Subparagraph 19(1)(c.1)(ii) of the Act reads as follows:

[5]    The Board upheld the applicant's appeal only to the extent that it allowed the sponsorship of her son as a member of the family class.

[6]    At the hearing before me, counsel for the applicant indicated that he did not wish to present his written argument concerning the issue of functus officio.

[7]    Counsel for the applicant submitted that the Board erred in its application of subparagraph 19(1)(c.1)(ii) of the Act. In its decision, the Board stated the following:

In this case, the evidence shows that the applicant committed assaults on his wife. That action, described in section 350 of the Penal Code of Bangladesh, if committed in Canada, would constitute an offence punishable under section 267(b) of the Criminal Code of Canada. The text of section 350 of the Penal Code of Bangladesh reads as follows:

Whoever intentionally uses force to any person, without that person's consent, in order to the committing of any offence, or intending by the use of such force to cause, or knowing it to be likely that by the use of such force he will cause injury, fear or annoyance to the person to whom the force is used, is said to use criminal force to that order.

Section 267(1)(b) of the Criminal Code of Canada reads as follows:

267. (1) Every one who, in committing an assault,

(b) causes bodily harm to the complainant

is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years or an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months.

[8]    The applicant contends that the Board erroneously decided that, in determining the equivalency between Canadian and Bangladeshi criminal offences, only the criminal acts committed and not the charges should be compared. Subparagraph 19(1)(c.1)(ii) requires that the act committed constitute an offence under Bangladeshi laws, and that it would also constitute an offence in Canada. A determination of equivalency requires a comparison of the two laws (see Bransson v. Canada (M.E.I.), [1981] 2 F.C. 141 (C.A.) and Hill v. Canada (M.E.I.) (1987), 1 Imm.L.R. (2d) 1 (F.C.A.)). A close reading of the Board's explanation on this point is required:

. . . The applicant was not sentenced in Bangladesh. So the only factors that we can compare are the criminal acts committed and not the charges, and we have to refer to the provisions of section 19(1)(c.1)(ii). . . .

[9]    The applicant argued before the Board that the two countries' provisions were not equivalent because a charge pursuant to the Bangladeshi offence proceeds by way of summary conviction, whereas in Canada the same offence can be either indictable or punishable by summary conviction. When the Board states that only the criminal acts committed can be compared, and not the charges, it is not refusing to compare the elements of the offences. It is simply indicating that the punishment for the commission of either offence is irrelevant except insofar as described in subparagraph 19(1)(c.1)(ii), i.e. that the Canadian offence may be punishable by a maximum term of imprisonment of ten years or more. The Board committed no error in so deciding. In so finding, I have in mind the following comments made by the Federal Court of Appeal in Li v. Canada (M.C.I.), [1997] 1 F.C. 235, at pages 251 and 252:

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. [See for example, present s. 429(2) of the Criminal Code which provides certain defences to a group of offences against property.] 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.

and in Hill, supra, at page 9:

. . . It seems to me that because of the presence of the words "would constitute an offence . . . in Canada", the equivalency can be determined 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.

[10] Upon reviewing the evidence, I am not convinced that the equivalences drawn by the Board between the offences in the Criminal Code of Canada and the Penal Code of Bangladesh are erroneous.

[11] The applicant further argues that the Board erred in finding that her husband had written in his application that he did not speak English when, in fact, he had stated that he did not speak English fluently. The husband's application is reproduced at pages 36 to 40 of the Certified Copy of the Tribunal Record. Question 12(a) of the application form asks if the applicant is fluent in English, and provides a choice between "yes" and "no". It does not allow for degrees of fluency. The applicant's husband checked the box for "no". Given the format of the question, had the Board had serious concerns about the extent of the applicant's husband's ability to speak English, it should have requested clarification from the applicant. However, I am not convinced that this error is sufficient to displace the Board's finding that the applicant's husband's presence would not be beneficial to their son. It was only one of several factors which the Board took into consideration in reaching its decision, including its findings of damaged credibility with respect to both the applicant and her husband. Furthermore, the Board was under no obligation to draw the applicant's attention to any perceived inconsistencies in her evidence (Danquah v. Secretary of State (November 17, 1994), IMM-105-94 (F.C.T.D.) and Innocent v. Minister of Citizenship and Immigration (July 23, 1997), IMM-3697-96 (F.C.T.D.)).

[12] Finally, the applicant submits that the Board ignored evidence on many factors. A tribunal must be presumed to have considered all of the evidence that was presented to it, and it is not obliged to mention in its reasons all the evidence it has taken into account before rendering its decision (Taher v. Minister of Citizenship and Immigration (September 7, 2000), IMM-5255-99 (F.C.T.D.)). Furthermore, I agree with the respondent that the applicant's complaints are regarding the weight which was accorded the evidence by the Board, which is not properly a subject for judicial review (see Lapointe v. Hôpital Le Gardeur, [1992] 1 S.C.R. 351 at 358-361 and Dickason v. University of Alberta, [1992] 2 S.C.R. 1103 at 1148-1152), rather than any lack of consideration of that evidence.

[13] For all the above reasons, the application for judicial review is dismissed.

       JUDGE

OTTAWA, ONTARIO

August 28, 2003

                                   FEDERAL COURT

                    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                IMM-3715-02

STYLE OF CAUSE:                       DELU NOOR RENA v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION

PLACE OF HEARING:              Montréal, Quebec

DATE OF HEARING:              July 8, 2003

REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE PINARD

DATED:                          August 28, 2003

APPEARANCES:

Paul Duchow                           FOR THE APPLICANT

Marie Nicole Moreau                         FOR THE RESPONDENT

SOLICITORS OF RECORD:

Paul Duchow                           FOR THE APPLICANT

Montréal, Quebec

Morris Rosenberg                      FOR THE RESPONDENT

Deputy Attorney General of Canada

Ottawa, Ontario