Date: 20050119
Docket: IMM-3673-04
Citation: 2005 FC 77
Ottawa, Ontario, this 19th day of January, 2005
Present: The Honourable Justice James Russell
BETWEEN:
CHI ZIN KOK
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] This is an application for judicial review under s. 72(1) of the Immigration and Refugee Protection Act S.C 2001, c. 27 ("IRPA"). The Applicant is seeking review of the decision made on March 30, 2004 ("Decision"), of the Director, CIC Admissions of Citizenship and Immigration ("Delegate"), refusing the Applicant's application for rehabilitation.
BACKGROUND
[2] The Applicant, Chi Zin Kok, a.k.a. Ka Kwok, a.k.a. Kelvin Kok, is a citizen of the People's Republic of China. He was born on September 5, 1956, in China.
[3] He has used three names interchangeably since coming to Canada in 1986.
[4] The Applicant illegally entered Hong Kong from China in August 1981. He then went illegally by boat to Taiwan in 1982. In Taiwan, he was arrested for allegedly being a communist spy. He was detained in Taiwan from July 1982 to April 1984. In 1984, he was returned to Hong Kong. He was a suspect in Hong Kong in an armed robbery and murder case. In 1984, he was arrested in Hong Kong. He was convicted and sentenced, but his appeal was allowed, and he was acquitted of all charges on January 18, 1985.
[5] He returned to Hong Kong in April 1985, by swimming across a river. He purchased a false Hong Kong identity card. On August 8, 1985, a friend's home was raided and the Applicant was questioned by the police. He produced the false identity card. A check on the card determined that it was a forgery.
[6] On August 16, 1985, the Applicant was convicted in Hong Kong of two violations of the Hong Kong Immigration Ordinance. The first offence was remaining in Hong Kong without the authorization of the Director of Immigration after having landed unlawfully. He received a sentence of nine months imprisonment. He was also charged with possession of a forged Hong Kong identity card, for which he was also sentenced to nine months. The sentences were served concurrently. After his release, he was returned to China on March 4, 1986.
[7] On October 29, 1986, the Applicant travelled to Canada on a false passport. Upon arrival, he destroyed the passport and made a Convention refugee claim in Vancouver using a Chinese work identity card.
[8] On September 18,1987, the Applicant was examined by a Senior Immigration Officer regarding his refugee claim.
[9] On March 8,1988, the Applicant was arrested and charged with conspiracy to traffic in heroin. He was tried in Toronto. Due to a lack of evidence, he was acquitted. He then returned to Vancouver on August 23, 1989.
[10] In June 1992, the Applicant applied for permanent residence in Canada on humanitarian and compassionate ("H & C") grounds. This application was denied in 1995 and his subsequent application for leave and judicial review was denied in January 1997.
[11] On June 24, 1996, CIC held an inquiry under s. 27(3) of the former Immigration Act R.S.C. 1985 c. I-2, to see if the Applicant was a person who had been convicted of a crime equivalent to s. 368 of the Canadian Criminal Code of uttering a forged document. The offence committed by the Applicant was deemed not to be equivalent. An offence under s. 368 is punishable, on conviction, by indictment for a term of imprisonment not exceeding ten years, or by summary conviction.
[12] The Applicant's second offence of remaining in Hong Kong without the authorization of the Director of Immigration was found to be equivalent to s. 94(1) of the former Immigration Act, ("Former Act"). The current offence, under s. 124 of IRPA, is punishable by indictment by a fine of not more than $50,000, or by imprisonment for a term of not more than two years, or on summary conviction to a fine not exceeding $10,000 or a term of imprisonment not exceeding six months.
[13] On September 23, 1996, an Immigration Adjudicator in Canada determined that the Applicant was inadmissible, and a conditional departure order was issued against him.
[14] In August 2001, he submitted another H & C application for permanent residence in Canada based on spousal sponsorship. The Applicant's spouse, Ka Won (Wanda) Chan, is a Canadian citizen. They have three children together.
[15] On June 7, 2002, the Immigration and Refugee Board determined that the Applicant was not a Convention Refugee.
[16] On February 23, 2003, the Applicant submitted an application for criminal rehabilitation to Citizenship and Immigration Canada.
[17] On April 25, 2003, and May 8, 2003, the Applicant, along with his counsel, attended interviews with an Immigration Counsellor with respect to his spousal sponsorship and rehabilitation application.
[18] By a decision dated March 30, 2004, the Applicant's application for rehabilitation was denied by the Delegate. This is an application for judicial review of that finding.
Decision Under Review
[19] The Delegate's reasons for refusal of rehabilitation are as follows:
Reasons for Refusal:
I have read the recommendation of Officer Andrea Barker and the submissions prepared by Mr. Kok's counsel, Darryl Larson, and his associate, Maureen Kilpartick. Based on my review of the above, I am of the opinion that Mr. Chi Zin (Kelvin) Kok has not demonstrated that he is rehabilitated from his criminal convictions.
I acknowledge that he has integrated into the community, leads a stable lifestyle and holds a steady and well-paying job. I also recognize that his three Canadian-born children are doing well in Canada.
I also believe that the actions leading to the convictions abroad may have been as a result of his desire to flee the PRC. However it is his actions subsequent to his arrival in Canada that do not satisfy me that he is rehabilitated.
Mr. Kok arrived in Canada on 29 October 1986 and provided the officials at the port of entry with a false name and date of birth as well as a false work identity card. In Canada he had several opportunities to provide us with his correct identity and date of birth, yet he demonstrated a continued willingness to provide false information to representatives of the department over a ten year period. It was only as of May 2001(approximately 15 years after his entry to Canada) that Mr. Kok completed a personal information form for the IRB using the name Ka Kok, and providing the date of birth 05 September 1956. In May of 2003, when Mr. Kok was interviewed by Officer Barker, he stated he had not disclosed his true identity and date of birth prior to 15 May 2001, because he did not think he would be able to be accepted as a Canadian Citizen if he did. In my opinion, that statement is telling and indicates a clear intent to deceive.
Given the conflicting information Mr. Kok has provided to this department regarding his identity, his date of birth, convictions and charges he has received and countries he resided in prior to arriving in Canada, I believe there remains sufficient doubts about his personal credibility to refuse to grant rehabilitation at this time.
[20] As a result of his interview, in a letter dated March 30, 2004, the Applicant was deemed to be a person described in s. 36(2)(b) of the IRPA, which reads "A foreign national is inadmissible on grounds of criminality for having been convicted outside of Canada of an offence that, if committed in Canada, would constitute an indictable offence under an Act of Parliament, or of two offences not arising out of a single occurrence that, if committed in Canada, would constitute offences under an Act of Parliament."
Issues
[21] The Applicant raises four issues:
(a) did the Delegate err in a reviewable manner by ignoring relevant evidence?
(b) did the Delegate err in a reviewable manner by relying on conflicting information provided to Citizenship and Immigration Canada ("CIC") to impugn the Applicant's credibility, after having accepted that the Applicant's immigration offences in Hong Kong had come about as a result of the Applicant's desire to flee the PRC?
(c) did the Delegate err in a reviewable manner by failing to consider whether the immigration offences of which the Applicant was convicted in Hong Kong had a proper equivalent in Canadian Law?
(d) did the Delegate breach his duty of fairness to the Applicant?
Arguments
Relevant Evidence
[22] The Applicant submits that the Delegate ignored relevant evidence, specifically the Applicant's conversion to Christianity. The Applicant says that there is no recognition of his faith or the significance of his religion in the Delegate's reasons.
[23] The Respondent notes that, in the letter sent to the Applicant, the Delegate states that the Applicant's "application, supporting documentation and submission dated December 19, 2003 have been thoroughly and sympathetically reviewed." In his reasons, the Delegate mentions the Applicant's integration into the community, and his stable lifestyle.
[24] Citing Thamber v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 332 and Malicia v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 235, the Applicant also argues that the Delegate ignored the length of time that has passed without further convictions. The Applicant says that, by the time the Delegate made his Decision on March 30, 2004, almost 19 years had passed since the date of the Applicant's convictions.
[25] The Respondent counters with the argument that the basis for refusal of the rehabilitation application was the Applicant's continued misrepresentations to Canadian Immigration authorities throughout the time he spent in Canada from 1985 to 2001. The Respondent notes that the Applicant provided false names and information to CIC, and to the IRB, and failed to disclose his true identity until he was confronted by various immigration officers. The Respondent says that the Applicant's motivation for lying in Hong Kong does not excuse his lack of candour with Immigration authorities in Canada.
Contradictory Conclusions
[26] The Applicant further argues that the Delegate came to contradictory conclusions. Since the Delegate believed that the actions leading to the Applicant's convictions abroad may have been a result of his desire to flee the PRC, the convictions should have been characterized as administrative, rather than criminal. The Applicant says that the moral turpitude that normally accompanies the commission of criminal offences, while perhaps not totally absent, is greatly diminished if the offences are characterized as administrative. The Applicant goes on to argue that his subsequent actions in Canada were found to be lacking in moral turpitude. These findings are contradictory.
[27] The Respondent re-iterates that the Delegate's finding was based on the Applicant's lack of candour with the Canadian Immigration authorities, and not what happened abroad. To take conclusions made regarding his convictions abroad, and associate them with his time in Canada, is not a logical step. The Respondent also argues that the Applicant is attempting to have the Court re-weigh the evidence. The weight given to the evidence is a matter for the Delegate's discretion and, unless the conclusion is unreasonable, it should not be interfered with by the court (see Tawfik v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 835 (F.C.T.D.)).
Excusable Fears
[28] The Applicant goes on to argue that he violated Hong Kong immigration laws because he feared a return to his country of origin. He claims that, due to the same fear of return to the PRC, he did not disclose his true identity or personal information to the Canadian Immigration authorities. He argues that the disclosure would have prevented him from obtaining Canadian citizenship and, ultimately, would lead to his removal to the PRC. The Applicant argues that, since the fears that arose in Hong Kong and in Canada have the same basis (a fear of return to the PRC) they should be similarly excusable.
[29] The Respondent claims, once again, that the Applicant is merely attempting to have the Court re-weigh the evidence. The Respondent notes that the Court should not intervene when the Delegate's discretion is reasonably exercised (Tawfik).
[30] The Applicant then goes on to argue in a somewhat confusing way that because his actions in Canada and his actions abroad result from the same fear, his actions in Canada and the non-disclosure to Canadian Immigration officials are not actual offences. The Applicant claims that the Delegate is equating moral turpitude with actual criminality. The Applicant emphasises that he has had no criminal convictions since 1985.
[31] The Respondent argues that the Applicant's actions with respect to Canadian Immigration authorities are directly relevant to the issue of whether he has demonstrated rehabilitation from his criminal convictions in Hong Kong, which were immigration-related offences. The Respondent claims that the relevant evidence was considered, and the Court should not intervene with the weight given to the evidence by the Delegate. The Decision was entirely reasonable in this regard.
Failure to Consider Equivalency
[32] The Applicant argues that the offences for which he was convicted abroad were not equivalent to any offences in Canadian law. Equivalency must be based on the CIC guidelines concerning rehabilitation. He says that if there is no equivalent Canadian offence, then there is no basis for ordering the removal of a person convicted of a foreign offence from Canada. He says that the Delegate was required to consider equivalency, yet it was not mentioned in the Decision. This failure constitutes a reviewable error.
[33] The Respondent notes that equivalency for the Applicant's Hong Kong convictions was assessed twice: once by an Immigration Adjudicator who issued a removal order against the Applicant; and a second time by an Immigration Counsellor with respect to the rehabilitation application. In the latter, the Counsellor found that one offence was equivalent to s. 94(1) of the former Immigration Act, or s. 124 of the IRPA, and the second offence was equivalent to an offence under s. 122(1)(a) of the IRPA. So the Respondent says a finding of equivalency is implicit in the Delegate's reasons, and it is reasonable that the Delegate accepted the equivalency findings of the Immigration Adjudicator and of the Immigration Counsellor.
[34] The Respondent argues that, while the equivalency of the Applicant's conviction is not spelled out, the Delegate was not obliged to expressly mention all of the documentary evidence in his reasons. The failure to do so ought not to be used to support the inference that the evidence was ignored. The Respondent argues that it is implicit in the Decision that equivalency was accepted by the Delegate. Hence, the Applicant has failed to demonstrate that the Delegate erred (see Hassan v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 946 (F.C.A.), Florea v. Canada (Minister of Employment and Immigration, [1993] F.C.J. No. 598 (F.C.A.)).
Duty of Fairness
[35] The Applicant finally submits that the Delegate breached his duty of fairness by relying on, but not referring to, the Immigration Adjudicator's findings.
[36] The Applicant says he had a right to receive complete reasons for an administrative decision that has a great impact on his life. He submits that the content of the duty of fairness is affected by the importance of the decision to the lives of those affected (see Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; Kane v. University of British Columbia, [1980] 1 S.C.R. 1105).
[37] The Applicant submits that the legitimate expectations of the person challenging the Decision must be considered in determining the content of the duty of fairness (Baker; Bendahmane v. Canada (Minister of Employment and Immigration), [1989] 3 F.C. 16 (F.C.A.)). He claims to have a legitimate expectation that all of his submissions would be considered (including a 28-page submission letter, and a 60-tab book of documents outlining his life in Canada) and commented on by the Delegate. The Applicant argues that none of the points he raised were commented on by the Delegate in the Decision. The Applicant also claims that the Delegate failed to comment on the points raised by the Immigration Adjudicator.
[38] The Applicant argues that the Delegate should have been "alert, alive, and sensitive," to the factors considered (Baker). He claims that the Delegate breached his duty of fairness by "his complete disregard of the Applicant's evidence without reasonable explanation."
Standard of Review
[39] The Applicant submits that the appropriate standard of review in this case is reasonableness simpliciter (see Canada (Director of Investigation and Research, Competition Act) v. Southam Inc., [1997] 1 S.C.R. 748; Thamber; Ho v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 482; and Lo v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 1596). Iacobucci J, in Southam, defines the concept of reasonableness simpliciter:
An unreasonable decision is one that, in the main, is not supported by any reasons that can stand up to a somewhat probing examination. Accordingly, a court reviewing a conclusion on the reasonableness standard must look to see whether any reasons support it. The defect, if there is one, could presumably be in the evidentiary foundation itself or in the logical processes by which conclusions are sought to be drawn from it. An example of the former kind of defect would be an assumption that had no basis in the evidence, or that was contradictory to the overwhelming weight of the evidence. An example of the latter kind of defect would be a contradiction in the premises, or an invalid reference.
Analysis
[40] The essence of the Decision is that, notwithstanding the fact that the Applicant has integrated into the community, leads a stable lifestyle and holds a steady and well-paying job, the deceptions he practised on Canadian immigration authorities between 1986 and 2001 raise sufficient doubts about the Applicant's personal credibility to justify refusing rehabilitation.
[41] The Applicant feels this is an unwarranted conclusion because the crimes he was convicted of in Hong Kong (possessing a forged Hong Kong identity card and illegally remaining in Hong Kong) were prompted by legitimate attempts to escape human rights violations in the PRC and can hardly be regarded as morally reprehensible in the context of the time and place in which they were committed. The Applicant has been free of criminal convictions since 1985 and his treatment at the hands of immigration officials in Hong Kong and Taiwan explains his reluctance to trust and confide in Canadian immigration personnel when he arrived in Canada in 1986 fearing that he might, yet again, be returned to the PRC.
[42] In fact, the Delegate acknowledges that "the actions leading to the convictions abroad may have been the result of his desire to flee the PRC."
[43] The Delegate is perfectly candid that the reason he cannot be satisfied that the Applicant is rehabilitated is because of the Applicant's "actions subsequent to his arrival in Canada." These actions include giving conflicting information about his identity, date of birth, and convictions and changes in other countries.
[44] No one would argue that the Applicant was justified in practising these deceptions upon Canadian immigration, and Canada must demand absolute honesty from those who seek her protection. However, the Decision dealt solely with the issue of whether the Applicant was rehabilitated in March, 2004. At that time, there were some strong mitigating factors in the Applicant's favour:
1. he had not been convicted of an offence since 1985 in Hong Kong;
2. the offences he was convicted of in Hong Kong were entirely consistent with someone attempting to flee the PRC;
3. the deceptions he practised on immigration officials in Canada after arriving in 1986 are also consistent with someone whose real purpose is not the commission of a criminal offence or an act of moral turpitude, but who is desirous of staying out of the PRC;
4. the Applicant's treatment in PRC, Hong Kong and Taiwan was hardly likely to induce an attitude of complete frankness with those in authority, and his lies and evasions in Canada are, once again, entirely consistent with someone who has suffered badly in the past at the hands of immigration authorities in other countries;
5. the Applicant has integrated well into Canadian life. He has a family and three Canadian-born children. He leads a steady lifestyle and holds a steady and well-paying job;
6. following a family crisis, he appears to have realized that his deceptions of Canadian authorities were wrong, even though his motives were to avoid being returned to PRC;
7. since 2001, he appears to have mended his ways and to have been honest with Canadian immigration.
[45] The Delegate does, of course, acknowledge some of these mitigating factors in a very general way in the Decision. But there was significant evidence before the Delegate in terms of supporting documentation from those who had known and worked with the Applicant in Canada to suggest rehabilitation. In addition, there are the important facts that the Applicant has not been convicted of an offence since 1985 and, between 2001 and 2004, the Applicant has found a religious commitment and has expressed remorse for his past conduct.
[46] It seems to me that the Delegate, in light of the mitigating factors in favour of the Applicant, should have gone beyond the general acknowledgment that appears in the Decision. I don't think this is simply a question of weight. The failure to address important issues suggests that they were not really taken into account. This is not to suggest that a consideration of those issues must necessarily lead to a different conclusion. But the Delegate should have addressed the strong documentary evidence in favour of rehabilitation, the long period of time since a conviction (19 years) and the significant change in the Applicant's attitude and dealings with Canadian immigration authorities that appears to have occurred in 2001, and his expressions of remorse and acknowledgments of responsibility.
[47] This case is, I believe, closer to Malicia where Madam Justice Snider allowed the application for failure to consider relevant evidence than it is to my own decision in Cheung v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 935 (F.C.T.D.) where I felt that all of the relevant evidence had been addressed and weighed appropriately. In the case at bar, I am not convinced by the Decision that highly material evidence that did not support the final conclusion was considered or, if it was, why the Delegate felt it did not outweigh the negative factors.
[48] In addition, the Decision makes no reference to the issue of equivalency between the offences in Hong Kong and Canadian offences. The Respondent says that this was not necessary because equivalency had already been assessed twice: once by an immigration adjudicator who had determined that the Applicant was inadmissible to Canada under s. 19(2)(a.1)(1) of the Former Act, and then by an Immigration Counsellor who determined that the offence of remaining in Hong Kong without authorization was equivalent to an offence under s. 94(1) of the former Immigration Act and under s. 124(1)(a) of IRPA. The Immigration Counsellor also determined that the offence of possession of a forged Hong Kong Identity document was equivalent to an offence under s. 122(1)(a) of IRPA.
[49] The Respondent says that it is implicit in the Decision that equivalency was accepted by the Officer.
[50] While the Officer does say that "I have read the recommendations of Officer Andrea Baker and the submissions prepared by Mr. Kok's counsel ....." and that "Based on my review of the above, I am of the opinion that [the Applicant] has not demonstrated that he is rehabilitated from his criminal convictions," this is another of those worrisome situations where the Court is left wondering whether a general acknowledgment is sufficient on a determinative issue.
[51] In this case, I don't think it is, because the Applicant had specifically argued that the Hong Kong offences had no equivalents under Canadian law and if the Officer felt it was sufficient to rely upon previous conclusions that equivalency did exist, he should have said so and explained why there was no reason to consider the Applicant's arguments further. In other words, this was a determinative issue where the Applicant had raised strong objections to equivalency and it should have been dealt with and addressed specifically in the Decision.
[52] On any standard of review, I believe that the Decision is unsafe and must be returned for reconsideration.
[53] Counsel are requested to serve and file any submissions with respect to certification of a question of general importance within seven days of receipt of these reasons. Each party will have a further period of three days to serve and file any reply to the submission of the opposite party. Following that, an order will be issued.
"James Russell"
JFC
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3673-04
STYLE OF CAUSE: Chi Zin Kok v.
The Minister of Citizenship and Immigration
PLACE OF HEARING: Vancouver, BC
DATE OF HEARING: November 10th, 2004
REASONS FOR ORDER: Justice Russell
DATED: January 19, 2005
APPEARANCES:
Warren Puddicombe FOR APPLICANT
Helen Park FOR RESPONDENT
SOLICITORS OF RECORD:
Embarkation Law Group FOR APPLICANT
Vancouver BC
John H. Sims, Q.C. FOR RESPONDENT
Deputy Attorney General of Canada