Digests

Kan v. Canada (Minister of Citizenship and Immigration)

IMM-728-00

Rouleau J.

21/11/00

15 pp.

Judicial review of visa officer's refusal of permanent residence--Visa officer determined applicant met definition of entrepreneur in Immigration Regulations, 1978 but convictions in Hong Kong of assault occasioning actual bodily harm and reckless or dangerous use of firearm rendered applicant inadmissible under Immigration Act, s. 19(1)(c.1)(i) as member of inadmissible class of persons--Since more than five years elapsed since convictions, applicant eligible to be considered for rehabilitation--Visa officer determining rehabilitation not warranted--As Minister's authority to decide on rehabilitation not delegated, visa officer exceeded authority in considering rehabilitation; advising applicant of procedure to apply for rehabilitation--Application for rehabilitation subsequently denied by Minister--Applicant submitting Rehabilitation of Offenders Ordinance (R.O.O.) of Hong Kong equivalent, similar to Criminal Records Act (C.R.A.) of Canada--Relying on Canada (Minister of Employment and Immigration) v. Burgon, [1991] 3 F.C. 44 (C.A.) for proposition conviction spent under R.O.O., should not have been taken into account when making determination under s. 19(1)(c.1)(i)--Respondent contending applicant improperly attempting to challenge Minister's decision within context of application for judicial review, which seeks to impugn visa officer's decision--Application dismissed--That visa officer not considering applicant's pardon under Hong Kong law, not Minister's decision challenged herein--If Court finding visa officer should have considered pardon, then ministerial decision unwarranted--Not meaning Minister's decision challenged by present application--Tei v. Canada (Minister of Citizenship and Immigration) (1998), 161 F.T.R. 51 (F.C.T.D.), in which applicant challenging visa officer's recommendation to Minister distinguished--Only issue whether visa officer correct in not considering effect of pardon obtained under Hong Kong law--Lui v. Canada (Minister of Citizenship and Immigration) (1997), 39 Imm. L.R. (2d) 60 (F.C.T.D.) followed--Hong Kong scheme different than law of pardon in Canada--Affords person with "spent" conviction no protection from any, all Hong Kong legislation disqualifying him/her because of conviction whereas if that person pardoned pursuant to Canadian law, he or she would be protected from such disqualification--Also in Canada granting of pardon only possible after applicant going through process involving National Parole Board, whereas in Hong Kong pardon automatic--Contrary to what was said in Burgon, good reason to disregard foreign legislation: Immigration Act simply not suggesting pardon obtained abroad should be taken into account by visa officers; at most pardon obtained could perhaps be one of Minister's considerations for purpose of determining whether applicant rehabilitated--Visa officer not erring by not considering applicant's pardon under Hong Kong law--Criminal Records Act, R.S.C., 1985, c. C-47, s. 5 (as am. by S.C. 1992, c. 22, s. 5)--Immigration Act, R.S.C., 1985, c. I-2, s. 19(1)(c.1)(i) (as am. by S.C. 1992, c. 49, s. 11)--Rehabilitation of Offenders Ordinance 1986, Ord. No. 55/86, ss. 2(1), 3, 4, 5.