Date: 20150819

Docket: IMM-3539-14

Citation: 2015 FC 122

Ottawa, Ontario, August 19, 2015

PRESENT:    The Honourable Madam Justice Simpson

AMENDED JUDGMENT AND REASONS

(Reasons given orally on January 28, 2015)

[1]               In a decision dated March 27, 2014 [the Decision], the Applicant’s application for permanent residence as a skilled federal worker was refused because a Visa Officer [the Officer] decided (i) that the Applicant and her husband were inadmissible for two years because they had made a material misrepresentation; and (ii) that because the Applicant’s husband was found to be criminally inadmissible, both the Applicant and her husband were permanently inadmissible. This application for judicial review of the Decision was made pursuant to s. 72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [the IRPA].

I.                   The Background

[2]               The Applicant’s husband had the following two criminal convictions in South Korea [together the Convictions]:

December 19, 1988:    Convicted of turnover of a car by professional negligence [the First Conviction] and fined 200,000 won, under the South Korea Criminal Act, articles 189 and 187, and 69 and 70.

November 20, 1998:    Convicted of driving with a cancelled driver’s license [the Second Conviction] and fined 500,000 won under the Road Traffic Act, articles 40 and 109, and the Criminal Act articles 69 and 70.

[3]               However, on their application for permanent residence, both the Principal Applicant and her husband answered “no” to the questions asking about whether either of them had ever been convicted of a criminal offence [the Non-Disclosure].

[4]               The visa office in Los Angeles obtained a South Korean Police Clearance Certificate from the Applicant. It disclosed the Convictions. Thereafter, on January 6, 2014, the Officer emailed the Applicant asking for documents concerning the Convictions and for an explanation for the Non-Disclosure [the Fairness Letter]. The material portion of the Fairness Letter reads as follows:

Dear Applicant,

This concerns your application for permanent residence in Canada. Upon review of your case, the following documents for Sewoon Choi are required:

1. Explanation for non-disclosure of convictions listed in Korean Criminal History Information Record on your immigration application.

2. Court documents clearly showing all charges, verdict, and sentence imposed.

3. Official documents clearly showing date of completion for each sentence imposed.

4. Copy of the South Korea statute (actual wording of the law) under which you were charged and convicted.

5. Detailed written explanation of the events and circumstances surrounding and leading to the offences.

[5]               In reply, the Applicant provided a brief explanation for the Non-Disclosure saying that the Convictions had lapsed and that they answered the questions incorrectly because they misunderstood them.

II.                The Decision

[6]               The Officer reviewed the Convictions and considered whether there were Canadian equivalents for the offences described in the Korean law. In performing this analysis, the Officer compared the offences and concluded that sections 249(1) and (4) of the Canadian Criminal Code, RSC, 1985, c C-46 [the Criminal Code], are equivalent to the offences in Korea. The Officer therefore concluded that under paragraph 36(2)(b) of the IRPA, the Applicant’s husband was criminally inadmissible. The Officer also decided that both the Applicant and her husband had misrepresented his criminal record by failing to disclose the Convictions.

III.             The Issues

[7]               There are three issues. The first is procedural fairness, the second is whether the equivalency analysis was reasonable, and the third is whether the Officer should have concluded that the Applicant’s husband was deemed to have been rehabilitated.

A.                Procedural Fairness

[8]               The Applicant says that when the Officer wrote the Fairness Letter, he or she was required to explain that, if the concerns about the Non-Disclosure and the Convictions were not resolved, inadmissibility could result. In other words, the Applicant’s complaint is that she was not told of the potential seriousness of the Officer’s concerns. On the other hand, the Respondent says that since the Applicant was told of the Officer’s concerns and given the opportunity to explain the Non-Disclosure, the requirements of procedural fairness were met.

[9]               Given that the duty of fairness in this context is low (see Obeta v Canada (MCI), 2012 FC 1542 at paragraph 15 and Wang v Canada (MCI), 2006 FC 1298 at paragraph 20), it is my view that, in the context of an application seeking to be admitted to Canada, it was not necessary for the Officer to state that his concerns could result in the Applicant’s inadmissibility. On the facts of this case it would have been obvious to the Applicant that concerns could impact admissibility. For all these reasons, I have found no breach of the requirements of procedural fairness.

B.                 Was the equivalency analysis reasonable?

[10]           Regarding the First Conviction, the Officer equated article 187 of the South Korean Criminal Act to section 249(1) of the Criminal Code. Those provisions read as follows:

Article 187 – A person, who overturns, buries, crashes or destroys a train, electric car, automobile, vessel or aircraft in which persons are actually present, shall be punished by imprisonment for life or not less than three years.

[11]           Regarding the Second Conviction, the Officer’s notes equated article 40 of the South Korean Road Traffic Act to section 249(4) of the Criminal Code. However, this was a typo. It is clear that the Officer intended to refer to section 259(4) of the Criminal Code. The provisions state:

Article 40 – Any body shall not drive an automobile etc. without getting a driving license from the Commissioner of a District Police Agency (including the case where the validity of the driving license is suspended) pursuant to the provisions of Article 68.

[12]           It is of note that the offences in the Criminal Code are hybrid in the sense that they may be prosecuted by indictment or on summary conviction. However, section 36(3)(a) of the IRPA says that such offences are deemed to be indictable. That section reads as follows:

[13]           The Officer’s notes show that he or she considered the elements of each offence and in my view the analysis satisfies the first methodology set out by the Federal Court of Appeal in Hill v Canada (MEI) (1987), 73 NR 315 at page 320, where the Court said that equivalency between offences can be determined in three ways. The relevant passage states:

[...] 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.

[14]           Finally, the Applicant suggests that expert evidence was required, but in my view that is not the case. The language of the South Korean statutes is clear and counsel for the Applicant could not identify any wording that required an expert opinion.

C.                 Deemed Rehabilitation

[15]           The Applicant says that her husband is deemed to be rehabilitated and that the Decision was unreasonable because the Officer failed to address that issue. Section 36(2)(b) of the IRPA is the basis for the finding of criminal inadmissibility. It reads as follows:

[16]           In this case, the second part of the provision applies since the Applicant’s husband was convicted in South Korea of two unrelated offences that, if committed in Canada, would have constituted two offences under the Criminal Code.

[17]           Section 36(3)(c) of the IRPA deals with deemed rehabilitation and it provides as follows:

[18]           Section 18 of the Immigration and Refugee Protection Regulations, SOR/2002-227, describes who can be members of the class of persons deemed to be rehabilitated. The provisions dealing with those persons convicted outside Canada provide as follows:

[19]           Based on these provisions, it is my conclusion that since the Applicant’s husband did not meet the criteria of section 18 because he was convicted of two indictable offences outside Canada, the Officer was not required to consider whether the Applicant’s husband was deemed rehabilitated.

[20]           For all these reasons, the application will be dismissed.

IV.             Certified Question

[21]           Neither counsel proposed a certified question for appeal.

JUDGMENT

THIS COURT’S JUDGMENT is that the application is dismissed.

“Sandra J. Simpson”

FEDERAL COURT

SOLICITORS OF RECORD

APPEARANCES:

SOLICITORS OF RECORD: