Date: 20010524
Docket: A-85-98
Neutral Citation: 2001 FCA 165
CORAM: STRAYER J.A.
ISAAC J.A.
EVANS J.A.
BETWEEN:
JONG IN PARK
Appellant,
(Applicant)
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent,
(Respondent)
Heard at Winnipeg, Manitoba, Thursday, May 24, 2001
JUDGMENT delivered from the Bench at Winnipeg, Manitoba, Thursday, May 24, 2001
REASONS FOR JUDGMENT BY: EVANS J.A.
Date: 20010524
Docket: A-85-98
Neutral Citation: 2001 FCA 165
CORAM: STRAYER J.A.
ISAAC J.A.
EVANS J.A.
BETWEEN:
JONG IN PARK
Appellant,
(Applicant)
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent,
(Respondent)
REASONS FOR JUDGMENT
(Delivered from the Bench at Winnipeg, Manitoba,
on Thursday, May 24, 2001)
EVANS J.A.
[1] This is an appeal from a decision of a Judge of the Trial Division ((1998), 42 Imm. L.R. (2d) 123 (F.C.T.D.), dismissing Jong In Park's application for judicial review of a visa officer's refusal to issue immigrant visas to Mr. Park, his wife and children.
[2] The Judge certified the following question:
Once a decision to issue an immigrant visa is taken, is the visa officer functus officio or, does the visa officer have jurisdiction to reconsider his/her decision on the ground of the holder's inadmissibility prior to the issuance of the visa?
[3] Mr. Park, a citizen of South Korea, had applied to the Canadian Embassy in Seoul for a visa to enter Canada as an independent immigrant in the entrepreneur category. On the basis of the information contained in the visa application, and an interview with Mr. Park on August 3, 1995, the visa officer was satisfied that Mr. Park met the relevant selection criteria. Mr. Park stated both on his visa application form, and at the interview, that he had not been charged with or convicted of any criminal offence in any country.
[4] In a letter dated December 20, 1995, the visa officer informed Mr. Park that the processing of his application was complete and that "we are prepared to issue the immigrant visas for you and your family upon receipt of copies of your passports valid to allow your exit from Korea to take residency in Canada." Mr. Park promptly obtained the passports and on January 9, 1996 provided copies to the Embassy as requested.
[5] On January 17, 1996, the visa officer had received a "poison telephone call" which led him to investigate whether Mr. Park might be inadmissible for criminality. In the course his inquiries, the visa officer discovered that Mr. Park had been convicted in Korea on March 20, 1992 of impaired driving. When the visa officer asked Mr. Park about this at an interview on January 18, 1996, he said that he had not understood that he was being asked about convictions for what he regarded as a trivial offence.
[6] After reviewing the conviction certificate, the visa officer concluded that the offence for which Mr. Park had been convicted was equivalent to the corresponding provision of the Canadian Criminal Code, and that this conviction made Mr. Park inadmissible to Canada under subparagraph 19(2)(a.1)(i) of the Immigration Act, R.S.C. 1985, c. I-2, and, consequently, that he was ineligible for a visa. In a letter dated June 10, 1996, the visa officer advised Mr. Park that his application for a visa had been refused on the ground that he was a member of an inadmissible class by virtue of his criminal conviction.
[7] We are all of the opinion that the doctrine of functus officio has no application to the letter written on December 20, 1995. We accept that the letter means that the visa officer believed that Mr. Park was qualified for a visa and that visas would be issued to the family on receipt of the passports. However, the relevant statutory powers conferred on visa officers are to issue and to refuse visas, and although visas had apparently been printed, no visa was ever issued to Mr. Park. While one can assume that these powers are normally exercised on the basis of a prior decision, since the Act does not expressly grant the power to make a decision to issue a visa, there was no exercise of a statutory power to which the functus doctrine could apply.
[8] For these reasons, the certified question will be answered as follows: a visa officer is not functus officio once a decision to issue an immigrant visa is made. The appeal will be dismissed.
"John M. Evans"
J.A.
Winnipeg, Manitoba
May 24, 2001
FEDERAL COURT OF CANADA
APPEAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
Appeal from an order of the Trial Division dated February 4, 1998, Trial Division Docket
IMM-1063-97
DOCKET: A-85-98
STYLE OF CAUSE: Jong In Park v. Minister of Citizenship and Immigration
PLACE OF HEARING: Winnipeg, Manitoba
DATE OF HEARING: May 24, 2001
REASONS FOR JUDGMENT OF
THE HONOURABLE MR. JUSTICE EVANS
DATED MAY 24, 2001
APPEARANCES:
David Matas for the Appellant, (Applicant)
Sharlene Telles-Langdon for the (Respondent), Respondent
Department of Justice
301 - 310 Broadway
Winnipeg, MB R3C 0S6
SOLICITORS OF RECORD:
David Matas
602 - 225 Vaughan St.
Winnipeg, MB R3C 1T7 for the Appellant, (Applicant)
Morris Rosenberg
Deputy Attorney General of Canada for the (Respondent) Respondent
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