Docket: IMM-954-16
Citation:
2016 FC 1184
Ottawa, Ontario, October 24, 2016
PRESENT: The
Honourable Mr. Justice Mosley
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BETWEEN:
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KA HO LAU
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Applicant
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and
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THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
I.
INTRODUCTION
[1]
The applicant, Ka Ho Lau, seeks judicial review
of a decision wherein his application for criminal rehabilitation and admission
to Canada was denied.
[2]
For the reasons that follow, this application is
granted.
II.
BACKGROUND
[3]
The applicant is a citizen of Hong Kong,
People’s Republic of China. He met Fook Yee Grace Au (Grace) in late 2001 and
they got married in December 2004. They now have three children together (ages
11, 9 and 6 months). The applicant’s wife and children are Canadian citizens.
[4]
Mr. Ka Ho Lau is 43 years old. He has a criminal
history largely accumulated when he was young. In 1989, when he was fifteen, he
was convicted of a school yard assault that occasioned bodily harm. For that he
was fined HKD $100 and required to pay compensation of HKD $200 to the victim. Between
1993 and 1997, he was convicted of gambling offences on three separate
occasions. His sentences were fines of HKD $600, $500, and $1,000.
[5]
In 1998 he was involved in a more serious matter
involving blackmail of a construction site manager. For that he was convicted
of two offences and sentenced to 2 years and 3 months on each to be served
concurrently. He claims that upon his release in 2000, he became determined to
change his life style and pursued courses to improve his education and English
language skills.
[6]
In October 2002, the applicant became employed
at a packaging company as a technician. In September 2005, he was promoted to
Marketing Manager. In May 2007, he was further promoted to Managing Director.
In April 2006, the applicant was convicted of driving while disqualified and an
insurance-related offence of using a motor vehicle on a road against third
party risks. For driving while disqualified, Mr. Lau was sentenced to a fine of
HKD 1,000, roughly $170 Canadian at the time of writing, and for the second
offence, a fine of HKD 3000, roughly $510 Canadian at the time of writing, and
disqualified from obtaining a driving license for 12 months.
[7]
Since 2006, the applicant has not been charged
or convicted of any other offence. He claims that with the positive influence
of his wife and family, his life has been given new meaning and he has become a
better person. In 2009, the applicant established his own company which
manufactures packaging materials.
[8]
In June 2013, the applicant’s wife moved back to
Canada to care for her ailing father. The applicant applied for criminal
rehabilitation so that he can be reunited with his family in Canada. In his
application, Mr. Ka had assumed that he would be inadmissible by reason of his
criminal convictions. It is not clear from the record on this application that
a formal finding of inadmissibility had been made.
[9]
On January 14, 2016 the application for criminal
rehabilitation was denied by an officer of the Department of Citizenship and
Immigration (CIC) pursuant to paragraph 36(3)(c) of the Immigration and
Refugee Protection Act, SC 2001, c 27 (“IRPA”).
III.
RELEVANT LEGISLATION
[10]
The following provisions of IRPA are relevant:
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Serious
criminality
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Grande
criminalité
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36 (1) A permanent resident or a foreign national is inadmissible on
grounds of serious criminality for
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36 (1) Emportent interdiction de territoire pour
grande criminalité les faits suivants :
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…
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(b) having been convicted of an
offence outside Canada that, if committed in Canada, would constitute an
offence under an Act of Parliament punishable by a maximum term of
imprisonment of at least 10 years; or
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b) être
déclaré coupable, à l’extérieur du Canada, d’une infraction qui, commise au
Canada, constituerait une infraction à une loi fédérale punissable d’un
emprisonnement maximal d’au moins dix ans;
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…
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Application
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Application
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(3) The following provisions govern subsections (1) and (2):
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(3) Les dispositions suivantes régissent
l’application des paragraphes (1) et (2) :
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(c) the matters referred to in
paragraphs (1)(b) and (c) and (2)(b) and (c) do not constitute
inadmissibility in respect of a permanent resident or foreign national who,
after the prescribed period, satisfies the Minister that they have been
rehabilitated or who is a member of a prescribed class that is deemed to have
been rehabilitated;
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c) les
faits visés aux alinéas (1)b) ou c) et (2)b) ou c) n’emportent pas
interdiction de territoire pour le résident permanent ou l’étranger qui, à
l’expiration du délai réglementaire, convainc le ministre de sa réadaptation
ou qui appartient à une catégorie réglementaire de personnes présumées
réadaptées;
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IV.
DECISION UNDER REVIEW
[11]
The decision to deny rehabilitation was made by
a Deputy Program Manager based on the recommendation of a visa officer at the
Mission in Hong Kong. It was conveyed by letter to the applicant dated January
16, 2016. The letter also stated that the applicant “remains
inadmissible to enter Canada”.
[12]
The reasons for the decision consist of notes
entered in the Global Case Management System (GCMS). There
are two separate entries: July 8, 2014 and January 14, 2016. The first entry on
July 8, 2014 indicates that the case has been reviewed and that the applicant
has the following convictions:
1.
1989/02 – Assault Occasioning Actual Bodily Harm
S.39 Cap.212 (charged when applicant was 15yo);
2.
1993/03, 1993/04, 1997/09 – Gambling in a
Gambling Establishment S.6 Cap.148;
3.
1999/04 – Blackmail S.23 (1) Cap.210;
4.
2006/04 – Driving while disqualified S.12 Cap.
375; 2006/04 Using a motor vehicle on a road against third party risks S.4
Cap.272
[13]
The July 8, 2014 entry then refers to the
equivalency of the above convictions under the Canadian
Criminal Code, RSC, 1985, c C-46 (Criminal Code). The officer
determines that the equivalent offences under the Criminal Code are:
1.
Assault causing bodily harm – section 267(b);
2.
Person found in gaming house – section 201(2)(a)
3.
Extortion – section 346(1)
4.
Operation while disqualified – section 259(4)
[14]
The officer then noted the following:
Applicant stated that he grew up from a
broken home and was lost for a long time, but after being imprisoned for
blackmail for 2 years and later meeting his wife and having children he has
changed and become a responsible provider for his family and trying to live an upright
life. His last charged in 2006 were due to forgetting that he had just lost all
of his driving points and out of habit he went to deliver something for his
company when he was caught by police. His spouse is a Canadian citizen and both
children, aged 7 and 9 are Canadian by birthright. His spouse moved to Canada a
year ago to take care of her father in Canada who has chronic liver problems.
As his spouse and children plan to settle in Canada in the long run, he would
like to be able to join his family in Canada. Does not appear that 10 years has
lapsed since his previous conviction in 2006/04/07 where he was fined and
disqualified from driving for 12 months.
[15]
The second note entered on January 14, 2016
indicates that the applicant is now requesting individual rehabilitation. The
officer finds that:
He is married to a Canadian citizen and has
2 Canadian citizen children who live in Canada. The Applicant’s submission
focuses on his childhood wherein he states that his family background and the
way he was “brought up…is closely related to my behaviours and offences which I
had committed”. While the Applicant does state that he has deep regrets for
what he has done in the past, the majority of his explanation focuses on his
childhood, father working, step-mother not taking care of him, moving around
schools, his need for attention and love. He also states that he wanted to make
money therefore he started gambling. Then, a friend convinced him to demand
money from a construction site manager and states “I guess the site manager
informed the police and I was arrested in early November in 1998 and charged
with blackmail”. The driving while disqualified was because he did not realize
he was disqualified until he was pulled over by the police.
[16]
The following factors were listed in favour of
the applicant’s rehabilitation:
•
appears to have some
stability in employment with father’s firm and family; and
•
has participated in
some training.
[17]
The following factors were listed that operated
against the applicant’s rehabilitation:
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long history of
offending;
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multiple offences and
history of re-offending;
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superficial remorse;
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strong tendency to
blame criminality on others and not take responsibility; and
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downplays serious
offences like extortion.
[18]
The officer concludes by stating that the
applicant has a long history of offences and recidivism, he shows little or no
remorse and he does not take responsibility for his crimes.
V.
ISSUES
[19]
In his Application for Leave and for Judicial
Review the applicant sought leave only with respect to the decision denying his
application for criminal rehabilitation. Issues pertaining to inadmissibility
and the equivalency of the Hong Kong and Canadian offences were raised in his
memorandum of fact and law and oral argument. Having considered the record and
the parties’ submissions, I would limit the issues to be determined to the
following:
Was the officer’s decision that the
applicant had not been criminally rehabilitated unreasonable, based on the
totality of the evidence?
VI.
ANALYSIS
[20]
There is no dispute between the parties and the
Court accepts that it is well settled that the standard of review applicable to
an officer’s determination of criminal rehabilitation is reasonableness: Hadad
v Canada (Minister of Citizenship, Immigration and Multiculturalism), 2011
FC 1503 at para 40.
[21]
I agree with the applicant that on the record
before the Court, it is not clear that a formal inadmissibility finding was
ever properly made – at least not before the decision under review was issued.
There is no indication that the officer conducted a thorough equivalency
assessment such as that described by the Federal Court of Appeal in Hill v
Canada (Minister of Employment and Immigration), [1987] FCJ No 47 at page
9. It is impossible to conclude from the record, for example, whether the
officer considered that the comparable offences under Hong Kong and Canadian
law had common essential elements.
[22]
The officer in this instance may have assumed
that an equivalency assessment was not required as the applicant appears to
have submitted his application on the assumption that he would be found to be
inadmissible. The respondent contends that an inadmissibility determination can
be made either before or after a criminal rehabilitation finding is made. As
Justice Shore noted in Alabi v Canada (Minister of Public Safety and
Emergency Preparedness) 2008 FC 370 at para 46, that may not be consistent
with the language of the statute. It would be preferable, in my view, for the
inadmissibility determination to be made first before the question of
rehabilitation is addressed. That does not appear to have been done in this
instance. If it was necessary to deal with the issue, based on the record
before me I would have found that the inadmissibility determination had been
inadequate.
[23]
In any event, I am satisfied that the
rehabilitation decision cannot withstand judicial review.
[24]
The officer failed to consider the most
important factor in the context of a rehabilitation application, which is
whether or not the foreign national will re-offend: Thamber v Canada (Minister of Citizenship and Immigration), 2001 FCT 177 at para 16. Rehabilitation does not mean that there is no risk of further criminal activity only that the risk is
assessed as “highly unlikely”: CIC Operational
Manual “ENF-2/OP 18 18 – Evaluating Inadmissibility”.
The period for which the applicant has been crime free is a necessary
consideration in a rehabilitation application: Thamber, above, at paras
14, 17-18.
[25]
In particular, the officer failed to reasonably consider
the applicant’s history from the time of his last serious offence i.e., the
blackmail convictions in 1999. While the driving offences in 2006 are not
insignificant, they don’t constitute serious offences within the meaning of the
statute. But even if those offences were taken into account, the applicant had
been charge free for a decade when the decision was finally made in January
2016.
[26]
In deciding a criminal rehabilitation
application, it is important to consider key factors such as: the nature of the
offence, the circumstances under which it was committed, the length of time
which has lapsed and whether there have been previous or subsequent offences: Aviles
v Canada (Minister of Citizenship and Immigration), 2005 FC 1369 at para
18. In my view, the officer did not give due consideration to any of these
factors except for the history of re-offending.
[27]
The officer’s reasons disproportionately focus
on the applicant’s past conduct and do not properly consider the positive
factors present in the application. As this Court found in Hadad, above,
rehabilitation is forward looking. Therefore, the question is, is he likely to
continue in this or similar conduct? To answer this question, it is necessary
to consider the last ten years of the applicant’s life where he has not been
involved in any criminal activity. The officer noted that the applicant had
found stable employment but neglected to consider that the applicant had in
fact incorporated his own firm in 2009.
[28]
Mr. Lau’s biographical narrative submitted in
support of his application provides context and background to the offences he
committed. The officer interpreted the narrative as Mr. Lau blaming his parents
and friends for his criminal activities and demonstrating a lack of remorse and
personal responsibility for his conduct. This was unreasonable in my view,
particularly in light of the fact that the CIC ‘Application for Criminal
Rehabilitation’ asks applicants to “explain in detail
the events/circumstances leading to the offence(s)/conviction(s)”.
[29]
The officer’s focus on the applicant’s “long history of offending” was disproportionate and
she attributed too much importance to the fact that the applicant had past
criminal activity as opposed to the likelihood that he would be involved in
future criminal or unlawful activity.
[30]
The application is therefore allowed and the
application for criminal rehabilitation is referred back to a different officer
for reconsideration. And while it is not necessary for determination of this
application, it appears to the Court that the question of whether a proper
equivalency determination has ever been made remains open.
[31]
No questions were proposed for certification.
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