Date: 20000517
Docket: IMM-1162-99
Between :
SAM RACK KIM
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD, J. :
[1] The applicant seeks judicial review of a decision of Mrs. S.M. Lopez, a visa officer at the Canadian Consulate General in Detroit, Michigan, dated February 22, 1999, refusing his application for permanent residence in Canada.
[2] The applicant applied for landing in Canada in the self-employed category at the Canadian Consulate General in Detroit through the Area Processing Centre at the Canadian Consulate in Buffalo. His application included his wife and three children as dependants.
[3] The applicant was interviewed at the Canadian Consulate in Detroit on February 19, 1997. At the time of the interview, he was operating two businesses in Canada, a coin laundry and a mini-mart. In 1997, the applicant sold these businesses and invested in a convenience store in Kitchener, Ontario. He is the owner of the store, and he and his wife work in it together.
[4] On December 18, 1998, the visa officer received evidence that there were criminal charges outstanding against the applicant and his wife in Korea. In addition, the CAIPS notes dated October 7, 1998 indicate that the visa officer was made aware of outstanding accusations against the applicant's wife in Canada. The visa officer did not share this information with the applicant or his counsel.
[5] The visa officer outlined her reasons for refusing the applicant's application for permanent residence in her letter dated February 22, 1999:
| Pursuant to paragraph 9(3) of the Immigration Act 1978, you were asked to provide a financial net worth statement for the entire world at your interview on February 19, 1997 and subsequently by telephone with your agent on May 13, 1997. |
| In my letter of January 20, 1999, I again requested this document, as you had not complied. You have not complied completely with any of my requests to date. This financial statement would have clarified your qualifications for selection for immigration to Canada. Your agent's fax of February 19, 1999 does not comply with my request as there are no liabilities anywhere in the world. Your assets around the world are also not listed. In my letter of January 20, 1999, I advised you that these documents were required and that your application would be refused if I did not receive them before February 20, 1999. |
| As you have not complied with the provisions of paragraph 9(3) of the Act, you come within the inadmissible class of persons described in paragraph 19(2)(d) of the Act in that you have not fulfilled or complied with the provisions of the Act and Regulations. |
| I have therefore refused your application. In the future, if you wish to reapply, you will be required to submit a new processing fee. Any new application will be assessed according to the Immigration Act and regulations in force at the time that the new application is filed. |
[6] The only issue is whether the visa officer, in making her decision, relied on the extrinsic evidence of criminal charges against the applicant and his wife. If she did, then her failure to inform the applicant of this evidence would breach the duty of fairness owed to the applicant.
[7] For the purpose of this application, the following provisions of the Immigration Act, R.S.C. 1985, c. I-2, (the Act) are particularly relevant:
| 9. (3) Every person shall answer truthfully all questions put to that person by a visa officer and shall produce such documentation as may be required by the visa officer for the purpose of establishing that his admission would not be contrary to this Act or the regulations.
19. (1) No person shall be granted admission who is a member of any of the following classes:
[. . .]
(c.1) persons who there are reasonable grounds to believe
| (i) have been convicted outside Canada of an offence that, if committed in Canada, would constitute an offence that may be punishable under any Act of Parliament by a maximum term of imprisonment of ten years or more, or |
| (ii) have committed outside Canada an act or omission that constitutes an offence under the laws of the place where the act or omission occurred and that, if committed in Canada, would constitute an offence that may be punishable under any Act of Parliament by a maximum term of imprisonment of ten years or more, |
except persons who have satisfied the Minister that they have rehabilitated themselves and that at least five years have elapsed since the expiration of any sentence imposed for the offence or since the commission of the act or omission, as the case may be.
[. . .]
(2) No immigrant and, except as provided in subsection (3), no visitor shall be granted admission if the immigrant or visitor is a member of any of the following classes:
[. . .]
(d) persons who cannot or do not fulfil or comply with any of the conditions or requirements of this Act or the regulations or any orders or directions lawfully made or given under this Act or the regulations.
|
9. (3) Toute personne doit répondre franchement aux questions de l'agent des visas et produire toutes les pièces qu'exige celui-ci pour établir que son admission ne contreviendrait pas à la présente loi ni à ses règlements.
19. (1) Les personnes suivantes appartiennent à une catégorie non admissible :
[. . .]
c.1) celles dont il y a des motifs raisonnables de croire qu'elles ont, à l'étranger :
| (i) soit été déclarées coupables d'une infraction qui, si elle était commise au Canada, constituerait une infraction qui pourrait être punissable, aux termes d'une loi fédérale, d'un emprisonnement maximal égal ou supérieur à dix ans, sauf si elles peuvent justifier auprès du ministre de leur réadaptation et du fait qu'au moins cinq ans se sont écoulés depuis l'expiration de toute peine leur ayant été infligée pour l'infraction, |
| (ii) soit commis un fait - acte ou omission - qui constitue une infraction dans le pays où il a été commis et qui, s'il était commis au Canada, constituerait une infraction qui pourrait être punissable, aux termes d'une loi fédérale, d'un emprisonnement maximal égal ou supérieur à dix ans, sauf si elles peuvent justifier auprès du ministre de leur réadaptation et du fait qu'au moins cinq ans se sont écoulés depuis la commission du fait; |
(2) Appartiennent à une catégorie non admissible les immigrants et, sous réserve du paragraphe (3), les visiteurs qui :
[. . .]
d) soit ne se conforment pas aux conditions prévues à la présente loi et à ses règlements ou aux mesures ou instructions qui en procèdent, soit ne peuvent le faire.
|
[8] Although the CAIPS notes for January 19, 1999 read as follows:
| I DO NOT SEE THAT DEBTS HAVE BEEN CLEARED IN KOREA ESPECIALLY GIVEN ACCUSATIONS AGAINST THEM. |
and although the CAIPS notes from January 20, 1999 state:
| I HAVE REFUSED TODAY FOR NON-COMPLIANCE. THEIR LATEST FINANCIAL STATEMENT DATED 11FEB99 MAKES NO REFERENCE TO DEBTS OR LIABILITIES ANYWHERE IN THE WORLD. |
| I HAVE NOT REFERRED TO CRIMINAL CHARGES AGAINST THEM, AS I HAVE NOT HAD THE CHANCE TO DISCUSS THESE WITH THE APPLICANTS. HOWEVER, I ALSO HAVE REASONABLE GROUNDS TO BELIEVE THEY COULD HAVE COMMITTED 19(1)(C.1) OFFENCES. |
the visa officer claims in paragraph 14 of her affidavit not to have considered the evidence of criminal charges:
| . . . The information on possible criminality was not a basis for my decision as I was only concerned at that point in the assessment with whether the applicant met the selection criteria of a self-employed applicant. I did not yet consider the issue of whether the applicant may have been criminally inadmissible. I would only have addressed that issue if he had passed on selection and after giving him an opportunity to respond to the information I had received. |
[9] In Chiu Chee To v. Minister of Employment and Immigration (May 22, 1996), A-172-93, the Federal Court of Appeal set out the standard of review for discretionary decisions by visa officers with respect to applications for immigration. This standard is the same as that adopted by the Supreme Court of Canada in [1982] 2 S.C.R. 2">Maple Lodge Farms v. Government of Canada, [1982] 2 S.C.R. 2, where Justice MacIntyre stated, at pages 7 and 8:
| . . . It is, as well, a clearly-established rule that the courts should not interfere with the exercise of a discretion by a statutory authority merely because the court might have exercised the discretion in a different manner had it been charged with that responsibility. Where the statutory discretion has been exercised in good faith and, where required, in accordance with the principles of natural justice, and where reliance has not been placed upon considerations irrelevant or extraneous to the statutory purpose, the courts should not interfere. . . . |
[10] Considering the above non-equivocal and categorical statement by the visa officer in her affidavit, considering that the visa officer was not cross-examined on that statement, considering that her decision clearly indicates that the applicant's application was rejected because of his failure to provide documents requested by the visa officer, thereby not complying with the provisions of subsection 9(3) of the Act, and considering, therefore, that the applicant has failed to meet the burden of establishing that the visa officer did rely on the evidence of criminal charges in making her decision, the application for judicial review is dismissed.
JUDGE
OTTAWA, ONTARIO
May 17, 2000
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