Digests

Ho v. Canada (Minister of Citizenship and Immigration)

IMM-4620-00

2002 FCT 376, Kelen J.

5/4/02

9 pp.

Judicial review of immigration officer's refusal of permanent resident application on ground applicant's dependent spouse within class of inadmissible persons defined in Immigration Act, s. 19(1)(c.1)--S. 19(1)(c.1) prohibiting admission of person who there are reasonable grounds to believe have been convicted outside Canada of offence that, if committed in Canada, would constitute offence punishable under any Act of Parliament by maximum term of imprisonment of 10 years or more--Application for permanent residence approved, subject to medical, police clearances--Police certificates from Hong Kong subsequently showing applicant's spouse convicted in 1980 of attempted theft, "going equipped for stealing", theft; and in 1982 for fighting in public place, criminal damage--Based on convictions, applicant's spouse required to complete "rehabilitation application"--In notes of 1998 interview with applicant's spouse, immigration officer recommending refusal if conviction for "going equipped for stealing" equivalent to possession of burglary tools--Immigration officer requested additional documents regarding convictions, but original files destroyed due to lapse of time--In 1999 second immigration officer recommended against approval of rehabilitation application--Program Manager at Consulate General in Los Angeles concurred--Subsequently Minister refused rehabilita-tion application--On same date, application for permanent residence refused--Reasonableness simpliciter appropriate standard of review--If application for rehabilitation granted, criminal convictions would not bar applicant, spouse from immigrating to Canada--Application considered by three immigration officers who carefully considered circumstances, made decision in reasonable, fair manner--Main issue whether immigration officer correctly determined offence of "going equipped for stealing" under Hong Kong Criminal Code equivalent of Canadian Criminal Code offence set out in s. 351(1) (possession of a break-in instrument), punishable by sentence of maximum 10 years--Equivalence of offences requiring similarity of definitions of offences; definition similar if involves similar criteria for establishing offence occurred: Li v. Canada (Minister of Citizenship and Immigration), [1997] 1 F.C. 235 (C.A.)--Hong Kong Code, s. 27 offence of "going equipped for stealing" shown to have its equivalent in Canadian Criminal Code, s. 351--As no question applicant's spouse charged, convicted under Hong Kong Code, s. 27 offence, no question in possession of item which fulfilled requirements of Hong Kong section--Meets requirements of Canadian equivalent--Court satisfied one or more of criminal convictions in Hong Kong equivalent to Canadian Criminal Code offences which carry maximum penalty of 10 years' imprisonment or more--Application dismissed--Criminal Code, R.S.C., 1985, c. C-46, s. 351(1) (as am. by R.S.C., 1985 (1st Supp.), c. 27, s. 48--Immigration Act, R.S.C., 1985, c. I-2, s. 19(1)(c.1) (as enacted by S.C. 1992, c. 49, s. 11).