Date: 20001121
Docket: IMM-728-00
BETWEEN:
CHOW CHEUNG KAN
Applicant
AND:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
ROULEAU, J.
[1] This application is for judicial review of a decision of visa officer Daniel Arthur Vaughan (the "visa officer"), dated January 15, 2000, refusing the Applicant's application for permanent residence in Canada on the grounds that the Applicant was a member of the class of persons who are inadmissible to Canada under subparagraph 19(1)(c.1)(i) of the Immigration Act, R.S.C. 1985, c. I-2 (the "Act"), because he had been convicted in Hong Kong of the offenses of assault occasioning actual bodily harm and reckless or dangerous use of a firearm. The Applicant's application for rehabilitation was denied by the Minister.
[2] On September 13, 1995, the Applicant applied for permanent residence in Canada as a member of the entrepreneur category of immigrants. The application was refused on April 3, 1997, by Ms. Patricia Brown, as the Applicant was found to be inadmissible to Canada. She did not assess the Applicant's eligibility for immigration in the entrepreneur category. An application for judicial review of this decision was allowed on the consent of both parties on June 12, 1997.
[3] On July 24, 1997, the application was assigned to the visa officer for re-determination. The Applicant was interviewed by the visa officer on September 30, 1997. The visa officer determined that the Applicant met the definition of entrepreneur contained in the Immigration Regulations, but found that the Applicant, in March of 1989, had been convicted in Hong Kong for assault occasioning actual bodily harm and dangerous use of a firearm. He ruled that these convictions rendered the Applicant inadmissible under subparagraph 19(1)(c.1)(i) of the Act.
[4] Since more than five years had elapsed since the convictions, the Applicant was eligible to be considered for rehabilitation. Based on the information available and the Applicant's responses to questions pertaining to the convictions, the visa officer determined that rehabilitation was not warranted. The visa officer maintained his conclusion that the Applicant was inadmissible under the Act.
[5] On December 8, 1997, the visa officer was informed that he had exceeded his authority in considering rehabilitation, as the Minister's authority to decide on rehabilitation had not been delegated. The visa officer then opened the Applicant's file to advise him of the procedures for rehabilitation and to provide him with the opportunity to apply for rehabilitation, which the Applicant did on February 6, 1998. On May 20, 1998, the visa officer reviewed the application for rehabilitation and prepared his recommendations that rehabilitation be denied. On December 20, 1999, the Minister refused the application for rehabilitation.
[6] On January 15, 2000, the visa officer notified the Applicant that he remained inadmissible under the Act and that his application was accordingly refused. That is the impugned decision.
[7] The issue I must determine is whether the visa officer, while determining the Applicant's admissibility, had to consider the effect of the pardon obtained by the Applicant under Hong Kong law.
[8] The Applicant submits that the Rehabilitation of Offenders Ordinance (the "R.O.O.") of Hong Kong is equivalent and similar to the Criminal Records Act (the "C.R.A.") of Canada. He submits that the Hong Kong law and the Canadian law relating to pardons are similar, if not identical. The pith and substance of both laws are to eliminate the stigma which often accompanies a criminal record in order to facilitate rehabilitation. He submits that the distinction arrived at by Justice Rothstein in Lui v. Canada, 39 Imm. L.R. (2d) 60, whereas the Ordinance was deemed different does not make the ordinance dissimilar to the Act, even though it is not identical. The purpose is the same. The Applicant alleges that under the R.O.O., his conviction was spent and should therefore not have been taken into account by the visa officer when making his determination under subparagraph 19(1)(c.1)(i) of the Act.
[9] The Applicant relies on Minister of Employment and Immigration v. Burgon, 13 Imm. L.R. (2d) 102, to support his proposition, and more particularly with respect to the references contained at page 110, where the Canadian attitude toward pardons is summarized. Paragraphs 19 and 20 of that decision read as follows:
| In my view, when Parliament reenacted the Immigration Act, 1976, S.C. 1076-77, c. 52, in 1976, it must be taken to have known about its own earlier penal legislation, which allowed for the elimination of criminal convictions from the records of deserving individuals. In using the word "convicted" in s. 19(1)(c), therefore, Parliament meant a conviction that had not been expunged, pursuant to any other legislation it had enacted. If a "conviction" had been erased by the provisions of another law of Parliament, it was not meant to be treated in the same way as a conviction that had not been removed from a person's record. If it had intended that the word "convicted" in the Immigration Act be interpreted otherwise, it could and should have demonstrated that. Interpreting s. 19(1)(c) in this way, the Immigration Act and the criminal legislation in Canada is rendered consistent, not in conflict. The policy of the criminal law is incorporated within the Immigration Act. |
| I am fortified in this view by an examination of the legislative history of s. 19(1)(c), which was significantly different in its earlier form. The Immigration Act, R.S.C. 1970, c. I-2, subs. 5(d), prohibited certain classes of "persons who have been convicted of or admit having committed any crime involving moral turpitude ..." from entering Canada. [Emphasis added.] If this wording had continued in the legislation of 1976, Ms Burdon would probably have fallen within it and been properly excluded, because she had "admit[ted] having committed [a] crime". However, the new immigration legislation of 1976 dropped the italicized words, leaving only the key word "convicted". This provision now had a different meaning; a mere plea of guilty would not now be sufficient to come within the section. This legislative reform came after the Criminal Code amendments which received royal assent on June 15, 1972, permitting absolute and conditional discharges as a method of disposition in Canada. Thus when the italicized words were omitted from the Immigration Act, 1976, in 1976, leaving only the word "convicted", parliament must be taken to have been aware of the device of deeming an offender not to have been convicted and, therefore, must be taken to have meant to exclude such persons from the ambit of s. 19(1)(c) and to render the Immigration Act consistent with the Criminal Code of Canada. |
[10] The Respondent contends that the Applicant is improperly attempting to challenge the Minister's decision within the context of an application for judicial review, which seeks to impugn the decision of a visa officer. The visa officer does not have to question the reasonableness of the Minister's separate decision by which he is bound.
[11] The Respondent submits that the Applicant's contention that Hong Kong law and the Canadian law as to pardons are similar if not identical has been clearly rejected by the Court in Lui, supra. Foreign legislation should be assessed on a case by case basis when deciding whether what is held out to be a pardon in that jurisdiction is equivalent to a pardon in Canada. The Respondent submits that before the Court attorns to the law of Hong Kong, it must be satisfied that the legislation in question is similar in content and effect to the C.R.A., which governs the granting of pardon in Canada. According to the Respondent, this is not the case. Paragraph 3(1)(c) of the R.O.O. is contrary to the second fundamental characteristic of a Canadian pardon. It affords the person with a "spent" conviction no protection from any and all Hong Kong legislation that disqualifies him or her because of his or her convictions, whereas, if that person had been pardoned pursuant to the C.R.A., that person would be protected from such disqualification. Furthermore, the Respondent believes that a closer scrutiny of sections 3 to 5 of the R.O.O. shows that a conviction "spent" under section 2 of the R.O.O. continues to be a conviction under certain exceptions, which are many and varied, and therefore is not vacated as would be the case under Canadian law. The Respondent therefore believes that the two fundamental characteristics of a Canadian pardon are not inherent in the R.O.O. According to the Respondent, the visa officer did not err in finding that the Applicant's criminal convictions continued to exist despite it being a "spent" conviction under Hong Kong legislation.
[12] The application for judicial review arises from the letter sent by the visa officer and dated January 15, 2000. It is important to note that the decision was actually made before the Minister had decided to refuse to declare the Applicant rehabilitated. Subparagraph 19(1)(c.1)(i) of the Act makes it quite clear that the visa officer must first determine whether an applicant is inadmissible before the Minister determines whether the applicant has rehabilitated himself. Interpreting the Act in any other way would have the effect of depriving the visa officer of his power to actually decide on the admissibility of applicants. Subparagraph 19(1)(c.1)(i) reads as follows:
| "19(1) No person shall be granted admission who is a member of any of the following classes: |
| (c.1) persons who there are reasonable grounds to believe |
| have been convicted outside Canada of an offence that, if committed in Canada, would constitute an offence that may be punishable under any Act of Parliament by a maximum term of imprisonment of ten years or more, or |
| have committed outside Canada an act or omission that constitutes an offence under the laws of the place where the act or omission occurred and that, if committed in Canada, would constitute an offence that may be punishable under any Act of Parliament by a maximum term of imprisonment of ten years or more, |
| except persons who have satisfied the Minister that they have rehabilitated themselves and that at least five years have elapsed since the expiration of any sentence imposed for the offence or since the commission of the act or omission, as the case may be." |
[13] In the present case, the visa officer first found that the Applicant had previous convictions in Hong Kong on offences that, if committed in Canada, would constitute an offence punishable under the Criminal code by a maximum term of imprisonment of less than ten years. The visa officer seemingly did not take into account the fact that the Applicant's convictions were "spent" under Hong Kong law (i.e. he had obtained what appears to be a pardon). The visa officer then had to consider whether the exception pertaining to rehabilitation applied. The ministerial decision process was then carried out and the Minister ruled that the Applicant was not rehabilitated. The Respondent is correct in stating that the visa officer was bound by the Minister's opinion and that he could not question the reasonableness of it. The visa officer then issued his letter refusing the Applicant.
[14] What is challenged here is the fact that the visa officer did not consider the Applicant's pardon under Hong Kong law, not the Minister's decision. If the Court finds that the visa officer should have considered the pardon, then it follows that the ministerial decision was unwarranted. This does not mean that the Minister's decision is challenged by the present application. This cannot be. In my opinion, the present case is wholly distinguishable from the decision in Chan Wing Tei v. M.C.I. (1998), 161 F.T.R. 51, in which the applicant was challenging the visa officer's recommendation to the Minister.
[15] There is therefore only one issue in the present case: Was the visa officer correct in not considering the pardon obtained under Hong Kong law?
[16] This question was answered recently by this Court in Lui v. Canada, IMM-2783, July 29, 1997 (Rothstein, J.):
| "The real issue is whether the content and effect of the Hong Kong Ordinance is similar to the Canadian law. The effect of the Criminal Records Act is, subject to very few exceptions pertaining to certain provisions in the Criminal Code, to vacate a conviction if the National Parole Board grants a pardon and to remove any disqualification to which the person so convicted is, by reason of the conviction, subject by virtue of the provision of any Act of Parliament. |
| While a pardon may be revoked if a person is subsequently convicted or for other reasons, it would appear that except for those few Criminal Code exceptions to which I have referred, the pardon, in the words of Linden J.A. in Burgon, has the effect of cleansing the individual `of any stain that the conviction caused'. |
| The effect of the Hong Kong Rehabilitation of Offenders Ordinance would seem to be in the same general direction, but is subject to numerous exceptions. [...] |
| It is apparent that the scope of subsection 2(1) of the Ordinance is much narrower than paragraph 5.(b) of the Criminal Records Act. It applies only to less serious offences. It only has effect unless and until the individual is again convicted of an offence in Hong Kong. A pardon in Canada is not automatically revoked by the commission of a subsequent offence, but may be revoked by the National Parole Board for that reason. |
| Further, the operation of subsection 2.(1) is subject to numerous specified exceptions. For example, evidence of the conviction may still be admitted in any proceeding relating to the interest of an infant (paragraph 3.(2)(a)), in proceedings where a tribunal considers admission of evidence of the conviction necessary for justice to be done (paragraph 3.(2)(c)) or in proceedings relating to a person's suitability for appointment to a public office (3.(2)(d)). The exception of particular relevance in this case is contained in paragraph 3.(1)(c): |
| 3. (1) Nothing in section 2 shall affect- |
| (c) the operation of any law under which the individual is subject to any disqualification, disability, prohibition or other penalty. |
| As I understand paragraph 3.(1)(c), for purposes of any law under which an individual may be subject to a disqualification to which the conviction is relevant, subsection 2.(1) does not operate. In other words, the conviction is not to be treated as spent with respect of the operation of a law providing for a disqualification as a result of the conviction. That is quite different than paragraph 5.(b) of the Criminal Records Act which removes any disqualification under any Act of Parliament subject only to the few exceptions to which I have referred. |
| Accordingly, I must conclude that the Rehabilitation of Offenders Ordinance is not similar in content and effect to Canadian law. Indeed, in respect of disqualifications, Hong Kong and Canadian laws are inconsistent. Therefore, according to the similar content and effect principles enunciated in Burgon, the Hong Kong Rehabilitation of Offenders Ordinance cannot be recognized by Canada. As a result, the adjudicator was correct in treating the applicant's 1976 Hong Kong conviction for assault occasioning actual bodily harm as not having been vacated. |
| Even if I am wrong and I should have found that Canada should recognize or attorn to the Hong Kong Ordinance, the result would be the same. Recognition of the Ordinance surely means the entire Ordinance, not just those portions that have the same effect as Canadian law. In other words, I cannot see that Canada could recognize subsection 2.(1) but no other portions of the Ordinance. Thus, paragraph 3.(1)(c) would have to be recognized. This would require that the adjudicator treat the applicant's 1976 conviction as not sent for purposes of any law which subjected the applicant to any disqualification. Subparagraph 19.(1)(c.1)(i) of the Immigration Act is such a law because it disqualifies the applicant from admission to Canada by reason of his Hong Kong conviction. Under this approach as well then, the adjudicator was correct in not treating the applicant's conviction as if it was vacated." |
[17] The differences referred to in the above-cited passage between the two regimes are made more apparent upon careful reading of the relevant sections of both Acts. Paragraph 5(a)(ii) and subsection 5(b) of the C.R.A. delineates the effect of a pardon granted under Canadian law:
| "5(a)(ii) the conviction in respect of which the pardon is granted or issued should no longer reflect adversely on the applicant's character; and |
| (b) unless the pardon is subsequently revoked or ceases to have effect, vacates the conviction in respect of which it is granted and, without restricting the generality of the foregoing, removes any disqualification to which the person so convicted is, by reason of the conviction, subject by virtue of the provision of any Act of Parliament, other than section 100 or 259 of the Criminal Code, or of a regulation made under an Act of Parliament." |
Subparagraphs 2(1)(i) - (iii) of the R.O.O. sets out the protecting provisions of the ordinance:
| "(i) no evidence shall be admissible in any proceedings which tends to show that that individual was so convicted in Hong Kong; |
| (ii) any question asked of that individual or any other person relating to, or any obligation imposed on that individual or any other person to disclose, that individual's previous convictions, offences, conduct or circumstances shall be treated as not referring to that conviction; and |
| (iii) that conviction, or any failure to disclose it shall not be a lawful or proper ground for dismissing or excluding that individual from any office, profession, occupation or employment or for prejudicing him in any way in that office, profession, occupation or employment." |
In addition, paragraph 3(1)(c) of the R.O.O. states:
| "3(1)(c) Noting in section 2 shall affect the operation of any law under which the individual is subject to any disqualification, disability, prohibition or other penalty." |
[18] Paragraph 3(1)(c) of the R.O.O. is therefore contrary to the second fundamental characteristic of a Canadian pardon as described in Lui, supra. It affords the person with a "spent" conviction no protection from any and all Hong Kong legislation that disqualifies him or her because of his or her conviction, whereas if that person had been pardoned pursuant to the Canadian law, he or she would be protected from such disqualification.
[19] As for the first of these fundamental characteristics, the vacating effect of a pardon, sections 3 to 5 of the R.O.O. read as follows:
| "3. Exceptions relating to proceedings |
| (1) Noting in section 2 shall affect- |
| (a) the recovery of any fine or other sum adjudged to be paid; |
| (b) any proceedings in respect of a breach of a condition or requirement imposed following a conviction; or |
| (c) the operation of any law under which the individual is subject to any disqualification, disability, prohibition or other penalty. |
| (2) Notion in section 2 shall affect the determination of any issue, or prevent the admission or requirement of any evidence, relating to the conviction- |
| (a) in any proceedings relating to the interests of an infant; |
| (b) in any proceedings where the individual expressly consents to the admission of evidence relating to the conviction; or |
| (c) in any proceedings where the tribunal is satisfied that justice cannot be done except by the admission of evidence relating to the conviction. |
| (1) Section 2 shall not apply to- |
| (a) proceedings in respect of a person's admission as, or disciplinary proceedings against a person practicing as, a barrister, a solicitor or an accountant; |
| (b) disciplinary proceedings against a person holding a prescribed public office; |
| (c) proceedings relating to a person's suitability to be granted, or to continue to hold, any licence, permit or dispensation, or to be registered, or continue to be registered, under any law; |
| (d)proceedings relating to a person's suitability to be appointed to, or continue in, any prescribed public office; and |
| (e) proceedings under the Insurance Companies Ordinance (Cap. 41)- |
| (i) relating to a person's suitability to be authorized as an insurer; or |
| (ii) by the Insurance Authority in the exercise of the powers conferred on him by sections 27 to 35 of the Ordinance. |
| (2) Section 2 shall not apply to any question asked by or on behalf on any person, in the course of the duties of his office or employment, or any obligation to disclose information to that person in the course of those duties, in order to assess the suitability of another person- |
| (a) for admission as a barrister, solicitor or accountant; or |
| (b) for the grant of, or to continue to hold, any licence, permit or dispensation, or for registration, or to continue to be registered, under any law; or |
| (c) for appointment to any prescribed public office; or |
| (d)to be authorized as an insurer under the Insurance Companies Ordinance (Cap. 41) |
| (3) Section 2 shall not apply to- |
| (a)any dismissal or exclusion of an individual from practicing as a barrister, solicitor or accountant or from any prescribed public office; or |
| (b) any action taken for the purposes of safeguarding the security of Hong Kong. |
| 5. Exception relating to defamation actions |
| Nothing in this Ordinance shall apply to any action for defamation begun- |
| (a) before the commencement of this Ordinance; or |
| (b) after the commencement of this Ordinance in relation to an alleged defamation committed before the commencement of this Ordinance or before the lapse of the period mentioned in section 2(1)(c)." |
[20] The above-cited exceptions clearly show that the Hong Kong scheme is different than the law of pardon in Canada. I would also add that in Canada, the granting of a pardon is only possible after the applicant has gone through a process that involves the National Parole Board, whereas in Hong Kong, the pardon appears to be automatic.
[21] In my opinion, the Applicant does not bring forth any arguments that would compel me to disregard Justice Rothstein's comments in Lui, supra. The Applicant underlines the findings of the Federal Court of Appeal in Burgon, supra, in which the Court considered pardon legislation from the United Kingdom in the following words:
| "The further question to consider is whether the U.K. Legislation, which is similar in purpose, but not identical to the Canadian Law, should be treated in the same way. In both countries, certain offenders are granted the advantage of avoiding the stigma of a Criminal Record so as to facilitate their rehabilitation. There is no good reason for Canadian Immigration Law to thwart the goal of this British Legislation, which is consistent with Canadian Law. Our two legal systems are based on similar foundations and share similar values." (At p. 111) |
[22] Justice Linden then found that: "[t]his legislation, while not identical to that of Canada, is certainly similar in content and in effect". Considering all of the above, this is certainly not the case with the Hong Kong legislation.
[23] I would also add that, contrary to what was said in Burgon, supra, there would indeed appear to be a good reason to disregard the foreign legislation: the Immigration Act simply does not suggest that a pardon obtained abroad should be taken into account by visa officers. The only test is whether or not the applicants "have been convicted outside Canada of an offence" or "have committed outside Canada an act or omission that constitutes an offence". If the visa officer finds that an applicant falls in one of those categories, then it is the Minister's task to determine whether or not that applicant has been rehabilitated. At most, a pardon obtained could perhaps be one of the Minister's considerations for that purpose. An analogy could be made with the Supreme Court's decision in Minister of Manpower and Immigration v. Robert Philip Brooks, [1974] S.C.R. 850, at 863, in which Justice Laskin wrote:
| "I add here that even if the pardon granted in the Philippines wiped out the bigamy conviction there in fact and in law, this is not controlling in relation to an inquiry about criminal convictions to determine whether immigration to Canada should be permitted." |
[24] The visa officer therefore did not err by not considering the Applicant's pardon under Hong Kong law.
[25] The application is dismissed.
JUDGE
OTTAWA, Ontario
November 21, 2000