Date: 20070705
Docket: IMM-5527-06
Citation: 2007
FC 710
Ottawa, Ontario, July 5, 2007
PRESENT: THE CHIEF JUSTICE
BETWEEN:
SHUM,
MEI WING
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] On November 11, 1997, the
applicant’s spouse, a citizen of Hong Kong, pleaded guilty to aiding and
abetting the breach of a condition of a visitor’s undertaking not to be
employed while in that country. The visitor was apparently employed as a
housemaid at a time when she did not have the legal authority to work in Hong Kong. The applicant’s spouse was
sentenced to a fine worth the Canadian equivalent of approximately $500.
[2] On the basis of these
facts, the immigration officer concluded that the applicant’s spouse was
inadmissible in Canada on grounds of criminality, pursuant to paragraphs
36(2)(b) and 124(1)(c) of the Immigration and Refugee Protection Act.
This resulted in the refusal of the applicant’s application for permanent
residence in accordance with paragraph 42(a) of the Act. The applicant seeks to
be landed as a Québec investor.
[3] Paragraph 124(1)(c)
creates an offence for a person who employs a foreign national in an unauthorized
capacity. According to paragraph 36(2)(b), a foreign national is inadmissible
on grounds of criminality if convicted outside of Canada of an offence which if
committed in Canada would be an offence under an Act of Parliament.
[4] Both parties agree
that the immigration officer in this case determined the equivalency between
the Hong Kong offence and paragraph 124(1)(c) “… by examining the evidence
adduced … 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 …”: Hill v. Canada (Minister of Employment and
Immigration), [1987] F.C.J. No. 47 (QL) (C.A.)
[5] After considering the
able submissions of both counsel, I have concluded that the immigration officer
exercised her discretion without regard for an important element in the
material before her.
[6] In April 2006, the
Hong Kong Police Force advised the immigration officer in writing of the
offence committed by the applicant’s spouse. The letter was stamped as
follows: “This conviction is regarded as spent in Hong Kong by virtue of
subsection 2(1) of the Rehabilitation of Offenders Ordinance” (Ordinance).
There is no mention of this notation by the immigration officer in any of her
analysis.
[7] The Ordinance is not
included in the tribunal record but is available through the internet. Subsection
2(1) of the Ordinance provides that the conviction is not admissible in any
proceedings if a period of three years has elapsed without the individual
having been convicted again in Hong Kong of an offence.
[8] The tribunal record
discloses no other offence committed by the applicant’s spouse. This explains
the notation on the letter received by the immigration officer that the
conviction of the applicant’s spouse “is regarded as spent in Hong Kong”.
[9] Both parties agree
that this provision of the Ordinance does not constitute a pardon as understood
in Canadian law: Kan v. Canada (Minister of Citizenship and Immigration),
[2000] F.C.J. No. 1886 (QL) (T.D.) and Lui v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 1029 (QL) (T.D.).
[10] However, I cannot be
satisfied that the exercise of the immigration officer’s discretion would not
have been materially affected had she considered the Ordinance. Such
consideration may have invited her to assess more carefully the seriousness of
the offence. Also, she may have asked more precise questions to determine
whether the person was hired by the applicant’s spouse or someone else. In her
response to the immigration officer, the applicant’s spouse noted that the
illegal worker “was hired as a housemaid” without stating by whom. If the
immigration officer had pursued the matter further, in light of the Ordinance
and the nature of the offence, she may have learned more concerning the
identity of the employer.
[11] As a general rule, the
burden is on the applicant to satisfy the immigration officer concerning the
merits of the application for permanent resident. However, I agree that this is
one situation where the applicant or his spouse should have been given
“effective notice” of the legal issues in play: Keymaresh v. Canada (Minister of Citizenship and Immigration), 2006 FC 641 at paragraph 18.
[12] For these reasons, the
application for judicial review will be allowed and the matter referred to a
different immigration officer for redetermination in accordance with these
reasons. Neither party suggested the certification of a serious question and
none will be certified.
ORDER
THIS COURT ORDERS that the application for judicial
review is allowed and the matter referred to a different immigration officer
for redetermination in accordance with these reasons.
“Allan
Lutfy”
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