Date: 19990729
Docket: IMM-570-99
BETWEEN:
MOHAMMED REZA MALEKI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
(Delivered orally from the Bench at Toronto, Ontario on
Thursday, July 29, 1999)
LINDEN J.:
[1] The applicant, whose refugee application had been refused but who had not yet been deported, made the application which is the subject of this judicial review under the Deferred Removal Orders Class ("DROC") program. Following a meeting with the Department of Citizenship, the applicant received a letter denying his application for DROC status. The letter, which is the subject of this application, read in relevant part that
In 1990 you were convicted in Greece of entering the country illegally and sentenced to 14 months imprisonment. This offence, if committed in Canada, would constitute an offence under section 94 of the Immigration Act, which is an Act of Parliament. As a result, you would be inadmissible to Canada under 19(2)(a.1) of the Immigration Act and your application for permanent residence is refused.1
[2] The relevant statutory provisions are two. Section 19(2)(a.1) of the Immigration Act2 (the "Act") reads as follows:
| No immigrant and, except as provided in subsection (3), no visitor shall be granted admission if the immigrant or visitor is a member of any of the following classes: [...] |
| (a.1) persons who there are reasonable grounds to believe |
| (i) have been convicted outside Canada of an offence that, if committed in Canada, would constitute an offence that may be punishable by way of indictment under any Act of Parliament by a maximum term of imprisonment of less than ten years, or |
| (ii) 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 by way of indictment under any Act of Parliament by a maximum term of imprisonment of less than ten years, |
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 [...]
Section 94(1) of the Act reads as follows:
| 94. (1) Every person is guilty of an offence who |
| (a) comes into Canada at any place other than a port of entry and fails to appear before an immigration officer for examination as required by subsection 12(1); |
(b) comes into Canada or remains in Canada by use of a false or improperly obtained passport, visa or other document pertaining to the admission of that person or by reason of any fraudulent or improper means or misrepresentation of any material fact; [...]
[3] While detailed proof of exact equivalency is not required by section 19(2)(a.1), the essential elements of an offence committed outside Canada must be similar to one known in Canada.3 Section 94 of the Act clearly contains an offence of entering Canada illegally, but there is considerable confusion about whether a similar offence exists in Greece, and whether the applicant was convicted of that offence. Various documents presented to the Court refer to an offence of "entering Greece illegally", but the available material and numbers of the various Greek offences which the applicant provided to the Crown that were thought to create that offence do not sufficiently support the existence of that particular offence. The decision maker and the Court have not been provided with the text or an adequate description of the statute to which section 94 of the Act is allegedly equivalent.
[4] In my view, the decision-maker did not, on the evidence, have reasonable grounds on which to decide that there was equivalence in the Canadian and Greek offences, as there was insufficient knowledge about the essential elements of the Greek offence. One cannot assume the equivalence of our Immigration Act offences to an alleged foreign offence of which the essential elements are not known.4
[5] I do not propose in this case to enter into a discussion of the complex procedural issues concerning who bears the onus of raising the matter of rehabilitation and how that matter is to be dealt with. Given the history of this case, however, I would encourage the Department to inform this applicant that it is up to him to take any steps he feels necessary, and to bring forward any evidence he feels necessary, in the event that he wishes to raise this issue.
[6] The application is therefore allowed. The matter should be remitted for a new determination based on better evidence, which should be evaluated more thoroughly, and better reasons given.
"A.M. Linden"
JUDGE
TORONTO, ONTARIO
July 29, 1999
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| COURT NO: IMM-570-99 |
| STYLE OF CAUSE: MOHAMMED REZA MALEKI |
| - and - |
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
| DATE OF HEARING: THURSDAY, JULY 29, 1999 |
| PLACE OF HEARING: TORONTO, ONTARIO |
| REASONS FOR ORDER BY: LINDEN J. |
DATED: THURSDAY, JULY 29, 1999
APPEARANCES: Mr. Douglas Lehrer
For the Applicant
Ms. Geraldine MacDonald
For the Respondent
SOLICITORS OF RECORD: VanderVennen Lehrer
Barristers & Solicitors
45 St. Nicholas Street
Toronto, Ontario
M4Y 1W6
| For the Applicant |
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date:19990729
Docket: IMM-570-99
Between:
| MOHAMMED REZA MALEKI |
Applicant
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
REASONS FOR ORDER
__________________
1 Applicant"s Record at page 15.
2R.S.C. 1985, c. I-2, as amended.
3Li v. Canada (1996) 138 D.L.R. (4th) 275 (F.C.A.) at paras. 17 - 19.
4Assuming the essential elements of a foreign offence runs counter to the direction of the Court of Appeal in Li, supra. In this regard see also Brannson v. Canada [1981] 2 F.C. 141 (C.A.) at 152 - 153; Anderson v. Canada [1981] 2 F.C. 30 (C.A.); Hill v. Canada (1987), 73 N.R. 315 (Fed. C.A.) At 320; Steward v. Canada [1988] 3 F.C. 487 (C.A.).