Date: 20100727
Docket: IMM-5190-09
Citation: 2010 FC 782
Ottawa, Ontario July 27, 2010
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
HYUN JOO PARK
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review pursuant to section 72 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) of the decision made on
August 18, 2009 by a visa officer of the Immigration Section at the Canadian
Consulate General in New York, New York, refusing the applicant’s application
for permanent residence status in Canada based on the inadmissibility of the applicant’s
spouse.
[2]
The
applicant was found inadmissible to Canada on the basis that her spouse was
convicted in South Korea of the criminal offence of “drunken driving” which
rendered him criminally inadmissible to Canada pursuant to paragraph 36(2)(b)
of the IRPA. The accompanying family members, including the applicant, were
therefore found inadmissible.
Background
[3]
Dr.
Hyun Joo Park, the applicant, applied for permanent residence in Canada in April
2008. Her accompanying family members include her husband, Dr. Song Hong Yeop,
and their two daughters who are 18 and 12 years of age respectively.
[4]
The
applicant obtained a Ph.D. in 1996 at the University of Southern
California and has been a postdoctoral fellow at the Research Institute –
Program of Molecular Structure & Function, of the Hospital for Sick
Children in Toronto. Dr. Park
was also a visiting scientist at the Samuel Lunenfeld Research Institute of
Mount Sinai Hospital in Toronto. The applicant
currently holds a Research Associate position at the Hospital for Sick Children.
[5]
In
her position at the Hospital for Sick Children, Dr. Park has been working on
novel approaches to the rescue of mutated CFTR, the primary defect in cystic
fibrosis. There is no question that Dr. Park is a highly educated and capable
scientist who would be an asset to Canada as a permanent
resident.
[6]
The
applicant’s husband, Dr. Hong-Yeop Song, also obtained a Ph.D. from the University of Southern
California and visited the Department of Electrical and Computer Engineering at
the University of Waterloo as a
Research Professor from March 1, 2002 until February 28, 2003. He is now a
professor at the Yonsei University in Seoul, South Korea.
[7]
The
applicant’s husband, Dr. Song, was arrested for “drunk driving” in Seoul, on October
3, 2007. The case was disposed of on November 9, 2007 and he was sentence to
pay a fine of W700,000 ($646.00). Dr. Song did not contest the charge and it
appears to have been dealt with administratively by his acceptance and payment
of the specified fine.
[8]
There
is no evidence on the record pertaining to Dr. Song’s degree of impairment at
the time of his arrest other than that his blood alcohol level was recorded as
being sixty-five (65) milligrams of alcohol in one hundred millilitres of
blood. It appears from the record that he was arrested at a police road block
some distance from a restaurant where he had had dinner. There is no evidence
that Dr. Song was stopped as a result of erratic driving or that he failed any
physical tests to demonstrate impairment. The evidence also does not indicate
whether his blood alcohol level exceeded a threshold required under Korean law
sufficient to determine “drunken driving” or whether the charge was based on
other evidence in addition to the blood alcohol reading.
Decision Under Review
[9]
The
visa officer’s letter, dated August 18, 2009, constitutes her reasons for
decision:
Government
of Canada / Consulate General of Canada
Immigration
Section
1251 Avenue of the Americas
New York, New York 10020-1175
Date: 18 August 2009
File no. B0536 04725
Mrs. Hyun J00 Park
2059 Buckhorn Ave.
Oakville, Ontario L6M 3V5 Canada
Dear Mrs. Park,
I have now completed the assessment of
your application. I regret to inform you that your husband comes within the
inadmissible class of persons described in paragraph 36(2)(b) of the
Immigration and Refugee Protection Act.
Paragraph 36(2)(b) renders inadmissible a
foreign national on grounds of criminality for having been convicted outside
Canada of an offence that if committed in Canada, would constitute an
indictable offence under an Act of Parliament, or of two offences, not arising
out of a single occurrence that if committed in Canada, would constitute
offences under an Act of Parliament.
Your husband Song Hong Yeop was arrested
for drunk driving in Korea on October 3, 2007. The case
was disposed of on November 9, 2007 and he was sentenced to pay a fine of
W700,000. If committed in Canada, this offence would be
punishable under sections 253(l)(a) & 255(1)(b) of the Criminal Code of
Canada and would be punishable by a maximum term of imprisonment of at least
five (5) years. He is inadmissible to Canada
under section 36(2)(b) of the Act.
Subsection 42(a) of the Act states that a
foreign national is inadmissible on grounds of an inadmissible family member if
their accompanying family member or, in prescribed circumstances, their
non-accompanying family member is inadmissible. Your family member is
inadmissible to Canada. As a result, you are also
inadmissible.
Subsection 11(1) of the Act states that
the visa or document shall be issued if, following an examination, the officer
is satisfied that the foreign national is not inadmissible and meets the
requirements of this Act. I am satisfied that your family member Song Hong Yeop
is inadmissible for the reasons set out above. I am therefore refusing your
application pursuant to subsection 11(1) and subsection 42(a) of the Act.
The Immigration and Refugee Protection
Act contains provisions that provide for the rehabilitation of persons who have
committed criminal offences outside Canada.
In order to be considered for rehabilitation, at least five years must have
elapsed since the completion of any sentence imposed or the payment of a fine.
Based on documents in your file, it appears that your husband will be eligible
to apply for rehabilitation on December 13, 2012. You may wish to submit a new
application at that time.
This inadmissibility also extends to any
stay in Canada as a visitor. Your dependant,
Song Hong Yeop, should therefore not attempt to enter Canada unless he is in possession of a
Temporary Resident Permit. Thank you for your interest in Canada.
Yours truly,
M. Edmond
Designated Immigration Officer
[10]
The
visa officer’s CAIPS notes dated August 4, 2009 also constitute her reasons. In
her notes, the visa officer found, based on the Summary Order of the Seoul
Seobu District Court, Criminal Division; the findings of the Court; the
statutory provisions (Korean Road Traffic Act); and the statements of
the applicant’s spouse describing the events (Applicant’s Record at pp.
72-79); that Dr. Hong-Yeop Song was found guilty of an offence which, if
committed in Canada, would constitute an indictable offence under paragraph 253(1)(a)
of the Criminal Code of Canada; impaired driving.
Issues
[11]
The
issue is whether the visa officer erred in determining that the applicant’s
spouse was inadmissible on grounds of criminality pursuant to paragraph
36(2)(b) of the IRPA.
Analysis
[12]
The
determination of whether or not an offence committed abroad of which a foreign
national has been convicted is equivalent to an offence under an Act of the
Parliament of Canada is a question of law. Accordingly, such a question of law
is reviewable upon the standard of correctness: Kharchi v. Canada (Minister of
Citizenship and Immigration), 2006 FC 1160, [2006] F.C.J. No. 1459,
at para. 29.
[13]
As
was found in Kharchi, above, at para, 29:
The
foreign and Canadian laws in question must be interpreted to determine whether
or not the two offences are equivalent, based on how the respective offences
are constructed. In this context, an immigration officer does not have any
special expertise. His or her interpretation of foreign and Canadian law must
be correct (Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40, at paragraph 37 and 59).
Failure to properly conduct an equivalency assessment is a fatal error which is
reviewable by this Court (Ngo v. Canada
(Minister of Citizenship and Immigration), 2005 FC 609, at paragraph 23).
[14]
According
to Hill v. Canada (Minister of Employment
and Immigration),
(1987), 1 Imm. L.R. (2d) 1, [1987] F.C.J. No. 47, to determine that the offence
at issue committed abroad would be an offence under an Act of Parliament if it
had been committed in Canada, it must be established
that the essential elements of both offences are equivalent. Equivalency can be
verified in three ways, one of which is by comparing 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: Kharchi, above, at para, 32.
[15]
As
was found by Justice de Montigny in Qi v. Canada (Minister of
Citizenship and Immigration), 2009 FC 195, [2009] F.C.J. No. 264, at para.
24, “it is now well-settled that foreign criminal law may be proved without
expert evidence in determining criminal inadmissibility in the immigration
context. The decision-maker may rely on expert evidence if it is available, but
may also rely on the foreign and domestic statutory provisions and the totality
of the evidence, both oral and documentary: see, e.g., Hill v. Canada (Minister of Employment
and Immigration)
(1987), 73 N.R. 315, 1 Imm. L.R. (2d) 1 (F.C.A.); Li v. Canada (Minister of
Citizenship and Immigration), [1997] 1 F.C. 235 (F.C.A.).”
[16]
I
would add that no deference is due if the Court determines that an
administrative decision-maker has failed to adhere to the principles of
procedural fairness: Canadian Union of Public Employees v. Ontario (Minister of
Labour),
[2003] 1 S.C.R. 539, [2003] S.C.J. No. 28, at para.100. Such matters continue
to fall within the supervising function of the Court on judicial review.
[17]
In
this case, the officer had articles 44 and 150 of the Korean Road
Traffic Act before her as they had been submitted by the applicant and
were referenced in the Korean court documents relating to Dr. Song’s conviction.
The visa officer compared the wording of these provisions in arriving at the
conclusion that the offence at issue corresponded to paragraphs 253(1)(a) and
255(1)(b) of the Criminal Code of Canada. She did not have the benefit
of expert opinion evidence as none was submitted by the applicant.
[18]
The
wording of the offence at article 44 of the Korean Road Traffic Act does
not require any particular blood alcohol level to be established for a conviction.
Similarly,
in Canada, the offence
of “impaired driving” at paragraph 253(l)(a) of the Criminal Code, does
not require any particular blood alcohol reading. As long as the evidence
establishes a degree of impairment, ranging from slight to great, the offence
is made out: R. v. Stellato, (1993), 12 O.R. (3d) 90, [1993] O.J. No.
18, affirmed by the Supreme Court of Canada, [1994] 2 S.C.R. 478, [1994] S.C.J.
No. 51.
[19]
Evidence
of the consumption of alcohol is insufficient in itself to constitute proof of
impairment. There must be sufficient evidence to satisfy the trier of fact beyond
a reasonable doubt that the ability to drive was impaired to some degree by
alcohol: R. v. Andrews, (1996), 178 A.R. 182, [1996] A.J. No. 8
(Alta.C.A.). The presumption which arises when a driver’s blood alcohol level
exceeds eighty (80) milligrams of alcohol in one hundred (100) millilitres of
blood is sufficient to constitute the offence set out in 253(1)(b) of the Criminal
Code of Canada but is not proof of impairment for the purposes of paragraph
253 (1) (a).
[20]
It
cannot be assumed, therefore, that proof of a conviction for a foreign offence
involving the breach of a statutory blood alcohol threshold will be equivalent
to the Canadian offence of impaired driving in the absence of other evidence of
impairment. I also leave for consideration in another case whether a foreign
offence establishing a threshold lower than that fixed by the Parliament of
Canada would be equivalent to the offence in Code paragraph 253 (1) (b).
[21]
It
may be, as counsel for the applicant argued, that the offence of which Dr. Song
was convicted is treated more as an administrative than a criminal matter in Korea. But that
was not established by the documentary evidence submitted to the officer. In my
view, the officer did not err in conducting an equivalency analysis of the corresponding offences
in Korea and Canada by a comparison of the wording
in each statute. Based on the documentary evidence that was submitted, she was
satisfied that the essential ingredients of the respective offences were
established.
[22]
The
Court should not interfere with the officer’s equivalency determination unless
it finds that she has erred in law: Steward v. Canada (Minister of Employment
and Immigration)
(F.C.A.), [1988] 3 F.C. 487, [1988] F.C.J. No. 321, at para. 12. Hill v. Canada (Minister of Employment
and Immigration),
(1987), 1 Imm. L.R. (2d) 1, [1987] F.C.J. No. 47.
[23]
I
am unable to make such a finding based on the evidence that was submitted to
the officer by the applicant and is before the Court. Accordingly, I must
dismiss the application. No questions were proposed for certification.
[24]
Based
on the record, it appears that the applicant’s spouse will be eligible to apply
for rehabilitation on December 13, 2012, which will be five (5) years after the
payment of the fine for impaired driving in South Korea. Dr. Park
may wish to submit a new application for permanent residency at that time. In
the interim, this may be a suitable case for the exercise of the Minister’s
discretion.
JUDGMENT
IT IS THE JUDGMENT OF
THIS COURT
that the application is dismissed. There are no questions to certify.
“Richard
G. Mosley”
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