Mung v. Canada (Minister of Citizenship and Immigration), docket IMM-2311-97

Date: 19980331

Docket: IMM-2311-97

BETWEEN:

     KAI-LAM MUNG

                                         Applicant,

AND:

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                         Respondent.

     REASONS FOR ORDER

GIBSON J.:

[1]      The applicant sought judicial review of a decision of a visa officer made at Paris, France on the 21st of April, 1997 wherein the visa officer refused the applicant's application for permanent residence in Canada as a member of the entrepreneur class.

[2]      The applicant is from Hong Kong. In support of his application to come to Canada, he filed very extensive material regarding his business interests in Hong Kong, which was not then part of the People's Republic of China, and in the People's Republic of China as it then was. He acknowledged that, some years ago, he had been convicted in Hong Kong of "handling stolen property" but took the position that the conviction was spent by virtue of the provisions of the Hong Kong Rehabilitation Ordinance.

[3]      The visa officer rejected the applicant's application on two grounds. First, he found that the applicant had failed to convince him that the applicant had run or could run a business in Canada. The visa officer concluded that the applicant "...would not be able to manage a commercial venture in Canada in an active and on-going manner." Second, the visa officer found the applicant inadmissible in that he had failed to satisfy the Governor-in-Council¹ that he had rehabilitated himself with regard to the offence of which he was convicted and that at least five years had elapsed since the expiration of any sentence imposed for the offence or since the commission of the act or omission that constituted the offence.

[4]      On the basis of the material before the Court and of argument by counsel for the applicant, I concluded that the visa officer made no reviewable error with respect to either of the grounds on which he based his decision. In the result, I dismissed this application for judicial review from the bench.

[5]      Counsel for the applicant recommended certification of two questions. While he proposed no specific form for the questions, he urged that the first should relate to the alleged failure of the visa officer to consider the totality of the information submitted to him and the second should relate to the visa officer's determination regarding criminal inadmissibility.

[6]      Counsel for the respondent urged that no question should be certified because the visa officer's determination that the applicant did not qualify as an entrepreneur was based solely on the facts of this matter and, since that determination effectively disposed of the whole of the matter, a question certified with regard to the issue of criminal inadmissibility would not be dispositive on an appeal from my decision.

[7]      I endorse the position of counsel for the respondent. No question will be certified. That is not to say that the issue of criminal inadmissibility might not be one worthy of certification in appropriate circumstances. The jurisprudence on the question does not appear to be entirely consistent.²

                                 ______________________________

                                     Judge

Ottawa, Ontario

March 31, 1998

     ¹      Effective July 10, 1995, the Minister of Citizenship and Immigration, not the Governor-in-Council.

     ²      See Canada (Minister of Employment and Immigration) v. Burgon [1991] 3 F.C. 44 (C.A.); Wong v. Canada (Minister of Citizenship and Immigration) [1995] F.C.J. No. 1292 (Q.L.), (F.C.T.D.);Barnett v. Canada (Minister of Citizenship and Immigration (1996), 35 Imm. L.R. (2d) 70 (F.C.T.D.); and Lui v. Canada (Minister of Citizenship and Immigration)(1997), 73 A.C.W.S. (3d) 121, 35 W.C.B. (2d) 423 (F.C.T.D.).