Date: 20070502
Docket: IMM-292-06
Citation: 2007 FC 470
Ottawa, Ontario,
May 2, 2007
PRESENT: The Honourable Madam Justice Heneghan
BETWEEN:
MOHAMMAD
AMIN PATEL
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
Mr.
Mohammad Amin Patel (the “Applicant”) seeks judicial review of the decision of
a Designated Immigration Officer (the “Officer”), denying his application for
permanent residence in Canada on the grounds of
inadmissibility pursuant to paragraph 36(1)(b) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27, as amended (the “Act”).
[2]
The
Applicant, a resident of New
York and an
American citizen, was convicted of the offence of Petit Larceny in the Criminal
Court of the City of New
York on November
18, 2004. The Officer purported to apply an equivalency test in determining
whether this conviction gave rise to inadmissibility pursuant to paragraph
36(1)(b) of the Act.
[3]
Having
reviewed the materials filed in support of this application including the
affidavits of the Applicant and of the Officer, the transcript of the
cross-examination of the Officer, the Officer’s notes and the balance of the
certified Tribunal Record, I am satisfied that this application should be
allowed. In my opinion the Officer committed a reviewable error by failing to
properly apply the correct test for determining the equivalency of the offence
of Petit Larceny in New
York State with
the offence of theft pursuant to section 322 of the Canadian Criminal Code,
R.S.C. 1985, c. C-46, as amended (the “Criminal Code”).
[4]
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.
[5]
In the
present case, the Officer deposed at paragraph 9 of her affidavit that she
considered the conviction for Petit Larceny to be equivalent with the Criminal
Code offence of theft, as follows:
I disagreed with this submission. The
Applicant in this case was initially charged under both New York State Tax Law
and Penal Law. In the end, however, he was convicted of larceny or stealing
property under the New York State Consolidated Penal Law. As the
Applicant was convicted of a penal or criminal offence, I was of the view that
the most appropriate equivalent offence was to be found in the Canadian
Criminal Code’s theft provisions rather than in the more limited penalty
provisions of provincial retail sales tax legislation.
[6]
The
Officer adhered to this view in her cross-examination. She testified that she
did not seek advice from a lawyer in dealing with the question of equivalency
but looked at the language of the New York Penal Code and reached her
conclusions on the basis of her own opinion.
[7]
I see a
problem with the Officer’s conclusion with respect to the question of
equivalency. In my view, she did not clearly identify which of the three
available legal tests, as set out in Hill, that she was applying. She
did not, in my opinion, seek to identify the essential elements of the offence
for which the Applicant had been convicted before looking for an equivalent
offence under the Criminal Code.
[8]
In my opinion,
the Officer’s failure to consider the essential elements of the offence in New York led to an error on her part
in applying the test for equivalency. An error in the application of a legal test
is an error of law and justifies judicial intervention.
[9]
Accordingly,
this application for judicial review is allowed. The matter is remitted to a
different Officer for redetermination. Counsel advised that there is no
question for certification arising.
ORDER
The application for judicial review is
allowed, the decision of the Officer is quashed and the matter is remitted to
another officer for determination. There is no question for certification
arising.
“E.
Heneghan”
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