Date: 20071115
Docket: IMM-5555-06
Citation: 2007
FC 1188
Toronto, Ontario, November 15, 2007
PRESENT: The Honourable Madam Justice Heneghan
BETWEEN:
YUNKANG WANG
YUYU WANG
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
Mr.
Yunkang Wang (the “Principal Applicant”) and Mrs. Yuyu Wang (the “Second Applicant”)
seek judicial review of the decision of Visa Officer Clark Thomas acting as a
delegate of the Minister of Citizenship and Immigration (the “Respondent”). In
his decision, dated July 8, 2000, the Visa Officer rejected the application for
permanent residence submitted by the Principal Applicant on the grounds that
his wife had been convicted of an offence in Japan and was inadmissible
pursuant to paragraph 36(2)(c) of the Immigration and Refugee Protection Act,
S.C. 2001, c. 27.
[2]
The
Principal Applicant submitted an application for permanent resident visas for
himself, his wife and dependent children in July 2005. He sought entry into Canada as a member of the “investor”
class. In the course of reviewing the application the Visa Officer became aware
that the Second Applicant had been convicted in Japan of an offence. By letter dated March 17,
2006, the Visa Officer sought information about the circumstances of the
offence.
[3]
By letter
dated May 2, 2006, counsel for the Applicants responded and provided the
following:
OFFENSE AGAINST PUBLIC OFFICE ELECTION
ACT
It happened in the afternoon of April 21,
2003 in Ashiya City. There was a city mayor election during
this period. There were promotion cars passing through the streets, speaker
announcements and telephone calls to each household for the election. I was
disturbed by all these activities that made me very stressful, nervous and
unable to have a nap in the afternoon. Therefore, I went to the electoral
office nearby my house to complain. In the said office, I had a language
commotion with a man. He then pushed me to the door and touched my breast.
With this sudden action, I unconsciously retaliated by hit [sic] him with an
umbrella that I had with me. Then, he called the police and sued me with
“Offence against Public Office Election Act”. Originally, it was faulted by
both parties and because of the election law periods, I was prosecuted for intruding
the electoral activities.
[4]
The Second
Applicant was not asked to provide any submissions relative to the criminal
offence; she was asked only to provide all documents, including court
documents, and a “written detailed account of events leading up to the criminal
charge/s”.
[5]
The CAIPS
notes contain the following entry for July 12, 2006:
Upon reviewing the submission it was
found that the spouse has a criminal conviction in Japan.
…
THE CLIENT’S SPOUSE YUYU HAS BEEN
CONVICTED OF AN OFFENCE THAT IF COMMITTED IN CANADA WOULD BE AN OFFENCE DESCRIBED IN 265 OF
THE C.C.C.
SHE IS INADMISSIBLE PURSUANT TO SECTION
36(2) OF IRPA. SHE WILL NOT BE ELIGIBLE FOR REHAB UNTIL AT LEAST MAY 2009
[6]
The
refusal letter, dated July 28, 2006, provides the following explanation for the
rejection of the Principal Applicant’s application for a permanent resident
visa:
Paragraph 36(2)(c) renders inadmissible a
foreign national on grounds of criminality for committing an act outside Canada
that is an offence in the place were [sic] it was committed and that, if
committed in Canada, would constitute an
indictable offence under an Act of Parliament.
Your spouse, Yuyu Wang, committed in Japan on April 21, 2003 an offence, namely
Assault. This act constitutes an offence under the laws of the place where it
occurred. If committed in Canada, this would constitute an
offence under article 265 of the Criminal Code of Canada punishable by way of
indictment.
[7]
In my
opinion, this application should be allowed on the grounds that the Visa
Officer failed to apply the legal test of equivalency in assessing the act
committed by the Second Applicant, for the purpose of making an inadmissibility
finding. Pursuant to subsection 36(2) of the Act, the Visa Officer should have
conducted an equivalency analysis in order to show that the Second Applicant
had committed an act that “if committed in Canada, would constitute an
indictable offence under an Act of Parliament”, as set out in the language of
paragraph 36(2)(c) of the Act.
[8]
In Hill
v. Canada (Minister of Employment and
Immigration)
(1987), 73 N.R. 315 (F.C.A.), the Federal Court of Appeal set forth the
following tests for determining the equivalency of offences:
… 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.
Third, by a combination of one and two.
[9]
There is
nothing in the record to show that the Visa Officer conducted such an analysis.
In my opinion, the reference in paragraph 36(2)(c) to an “offence” invites
application of the equivalency analysis.
[10]
The Visa
Officer here committed a reviewable error and the application will be allowed.
The matter is remitted to a different officer for redetermination. There is no
question for certification arising.
ORDER
This application for judicial review is
allowed, the decision of the Visa Officer is quashed and the matter is remitted
to another officer for redetermination. There is no question for certification
arising.
“E.
Heneghan”
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