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CHAPTER 2
2. CRIMINAL REFUSALS
2.1 INTRODUCTION
An application for permanent residence made by a member of the family
class can be refused if the member of the family class or a dependant,
is "criminally" inadmissible to Canada. Sponsorship refusals
based on criminal inadmissibility are not considered on a regular basis
by the Appeal Division. This chapter will only provide an outline of the
issue of criminal inadmissibility. For a detailed analysis, reference
should be made to chapters 7 and 8 of the paper entitled Removal Order
Appeals (Legal Services, Immigration and Refugee Board, February
1, 2002.
The applicable provisions are found in section 19 of the Immigration
Act. 1
The most common basis for criminal inadmissibility is the visa officer's
conclusion that the applicant is a person described in section 19(1)(c),
(c.1), (c.2); 19(1)(d); 19(2)(a), (a.1); or 19(2)(b). All of these provisions
connect the applicant to offences found in an Act of Parliament. In addition,
there are other provisions which have significant criminal elements. These
are sections 19(1)(e); 19(1)(f); 19(1)(g); 19(1)(j); 19(1)(k); and 19(1)(l).
The criminal inadmissibility sections are outlined as follows:2
Criminal Inadmissibility Sections
Description |
Reference |
criminality - conviction
in Canada (maximum imprisonment 10 years or more) |
s. 19(1)(c) |
criminality - equivalent
conviction outside Canada (maximum imprisonment 10 years or more)
|
s. 19(1)(c.1)(i) |
criminality - committed
equivalent act outside Canada (maximum imprisonment 10 years or more)
|
s. 19(1)(c.1)(ii) |
criminality - membership
in criminal organization |
s. 19(1)(c.2) |
criminality - organized
crime |
s. 19(1)(d) |
subversion, espionage,
terrorism, by individuals and members of a group |
ss. 19(1)(e), and (f) |
acts of violence, by
individuals and members of a group |
s. 19(1)(g) |
war criminals |
s. 19(1)(j) |
danger to security |
s. 19(1)(k) |
senior members of governments
engaged in gross human rights violations |
s. 19(1)(l) |
criminality - conviction
in Canada (indictable or hybrid offences, punishable by maximum imprisonment
less than 10 years) |
s. 19(2)(a) |
criminality - equivalent
conviction outside Canada (maximum imprisonment less than 10 years) |
s. 19(2)(a.1)(i) |
criminality - committed
equivalent act outside Canada (maximum imprisonment less than 10 years) |
s. 19(2)(a.1)(ii) |
criminality - two summary
convictions, in Canada or outside Canada, or a combination thereof |
s. 19(2)(b) |
The Canadian criminal law provisions in place at the time of the application
for permanent residence are to be used to determine the criminal admissibility
of the applicant. Subsequent changes in legislation which are prejudicial
to the applicant are not to be considered.3
2.2. JURISDICTION
As indicated above, criminality makes an applicant "inadmissible"
to Canada. In a section 77 appeal this means that criminality is not a
jurisdictional matter but rather a ground of refusal.
There is, however, a provision of the Immigration Act which,
if applicable, removes the jurisdiction of the Appeal Division to hear
the appeal. Section 77(3.01)4
provides that in two situations the jurisdiction of the Appeal Division
may be removed. In the first situation, a security certificate issued
pursuant to section 40.1(1), which has been determined by the Federal
Court of Canada to be reasonable, will oust the jurisdiction of the Appeal
Division. This is a rarely seen situation. The second situation is more
common. For the Appeal Division to lose jurisdiction over the appeal,
the person must be within the inadmissible classes of section 19(1)(c),
(c.1), (c.2) or 19(1)(d) and the Minister must have formed the opinion
that the person is a danger to the public.
Section 77(3.01) was enacted by Bill C-44 (S.C.
1995, c. 15) on July 10, 1995. An issue which has arisen is whether the
Minister may file an opinion that the person is a danger to the public
at any time prior to the Appeal Division's rendering its decision on an
appeal. In the case of Tsang 5,
the Federal Court dealt with this issue in the situation where the appeal
had been filed prior to the enactment of Bill C-44 and the hearing had
commenced after the enactment. The hearing proceeded and the decision
was reserved. Prior to the issuance of the decision, the Minister filed
his opinion. The Court determined that the Minister was entitled to file
his opinion when he did and that this extinguished the right of appeal
to the Appeal Division.6
The Court of Appeal subsequently upheld the decision.7
For a fuller discussion of "danger to the public opinions"
please refer to Chapter 2 of the Removals Orders Appeals Paper.
2.3. STANDARD OF PROOF
The Federal Court of Appeal considered the standard of proof required
for a visa officer to conclude, pursuant to sections 19(1)(c.2) and 19(2)(a.1)(ii)
of the Immigration Act, that he had "reasonable grounds"
for his belief that the appellant was a "member" of a criminal
organization. It upheld the Trial Judge's definition of "reasonable
grounds" as a standard of proof that, while falling short of a balance
of probabilities, nonetheless connotes "a bona fide belief in a serious
possibility based on credible evidence" It rejected the more rigorous
standard that "reasonable grounds" must not only be credible,
but also likely to be true on a balance of probabilities. The Court allowed
that "[m]uch will depend on the context: the standard of proof is
often more demanding before a power is exercised that has a serious impact
on an important individual right. However, refusing to issue a visa to
Mr. Chiau was not such a situation, even though the refusal was based
on national security grounds".8
In a subsequent case 9,
citing the Trial Division's reasons in Chiau 10,
the Federal Court adopted the same standard of proof. It went on to remark
on the deference which must be accorded to visa officers in similar cases:
The Supreme Court of Canada has held when dealing with a specialized
administrative tribunal, courts will accord "significant deference"
to it when performing its decision-making function. It is clear from the
evidence that visa officer Delisle has extensive experience and specialized
knowledge with reference to triad activities in Hong Kong and elsewhere.
It is well within his competence to define the meaning of membership in
a triad and more particularly in the Sun Yee On triad. He is clearly well
aware of his role in protecting and maintaining the interests of Canadian
security and his crucial obligation is to ensure that members or criminal
organizations are not granted admission to Canada. Thus, the Court must
view with considerable deference his definition of "reasonable grounds"
and "member". In the case at bar, it certainly was within his
jurisdiction to interpret paragraph 19(1)(c.2) in the manner he did, based
on his extensive experience in this highly specialized field.
In upholding the visa officer's decision, the Court stated:
It is not up to this Court to decide whether or not the applicant
is a member of a triad; the issue, for the Court, is whether there were
reasonable grounds for the visa officer to believe that the applicant
should be denied entry pursuant to s. 19(1)(c.2) and 19(2)(a.1)(ii). I
am satisfied that the totality of the record, including the confidential
affidavits, supports Officer Schultz's conclusions. It should not be forgotten
that Officer Schultz had considerable experience and knowledge with respect
to the activities of triads in Hong Kong.11
A certified question as to whether paragraph 19(1)(c.2) "membership
in a criminal organization" of the Immigration Act in relation
to a foreign national infringes subsection 2 (d) of the Charter was answered
in the negative.12
2.4. EQUIVALENCY
Sections19(1)(c.1) and 19(2)(a.1) of the Immigration Act contain
the equivalency provisions. Equivalencing is the equating of a foreign
conviction, act or omission to a Canadian offence.
Section 19(1)(c.1) provides 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
(i) 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
(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 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.
Section 19(2)(a.1) provides as follows:
19.(2) 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) person 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.
There is a distinction between subparagraphs (i) and (ii) in both sections
19(1)(c.1) and 19(2)(a.1). Subparagraph (i) is used in the situation where
there has been a conviction outside Canada whereas subparagraph
(ii) is used in the situation where there has not been a conviction, but
it is alleged that the person has "committed"
an offence. The legislative intent behind the latter subparagraph has
been interpreted as applying to any person not convicted of an offence
but fleeing justice. It would therefore not apply to a person who had
been convicted of an offence and at a later date pardoned.13
To satisfy subparagraph (i), there must have been a conviction outside
Canada and this conviction must then be compared to a Canadian offence.
In section 19(1)(c.1)(i), the determination to be made is whether the
offence outside Canada would, if it had been committed in Canada, be an
offence punishable by a maximum term of imprisonment of ten years
or more.14
In section 19(2)(a.1)(i), the determination to be made is whether the
offence outside Canada would, if it had been committed in Canada, be an
offence punishable by way of indictment by a maximum term of imprisonment
of less than ten years.
To satisfy subparagraph (ii) in sections 19(1)(c.1) and 19(2)(a.1) the
focus is on the commission of an offence. The first determination which
must be made is whether the person has committed an act or omission which
would be an offence in the place where it occurred. Once this determination
has been made, there must be a comparison with a Canadian offence. In
section 19(1)(c.1)(ii)15,
the comparison made is to a Canadian offence punishable by a maximum term
of imprisonment of ten years or more. In section 19(2)(a.1)(ii),
the comparison made is to a Canadian offence punishable by way of indictment
by a maximum term of imprisonment of less than ten years.16
In addition to the requirement that the offence be triable by indictment,
there is the requirement that the offence be punishable "under any
Act of Parliament". This second requirement is not met where the
offence is punishable through the inherent jurisdiction of the court and
not through any Act of Parliament 17
The standard of proof for the equivalency provisions is "reasonable
grounds to believe" and not "beyond a reasonable doubt".18
The standard of "reasonable grounds to believe" is less than
a balance of probabilities.19
The standard has been articulated as "a bona fide belief
in a serious possibility based on credible evidence".20
In determining whether there are "reasonable grounds to believe"
a person has committed an offence abroad, the Appeal Division should examine
evidence pertaining to the offence.21
In Legault, the Federal Court - Trial Division held that the
contents of the warrant for arrest and the indictment did not constitute
evidence of the commission of alleged criminal offences.22
The Federal Court of Appeal overturned this decision and determined that
the warrant for arrest and the indictment were appropriate pieces of evidence
to consider.23
If the Canadian offence used for equivalencing is unconstitutional then
there can be no equivalent Canadian offence.24
However, there is no obligation to consider the constitutionality of foreign
criminal law.25
There have been several Federal Court decisions which have provided the
principles to be followed when determining equivalency.
In Brannson, 26
the Court said:
Whatever the names given the offences or the words used in defining
them, one must determine the essential elements of each and be satisfied
that these essential elements correspond.
After Brannson, the Court in Hill 27
provided some further guidance and said that there were three ways to
establish equivalency:
1. by a comparison of the precise wording in each statute both
through documents and, if available, through the evidence of an expert
or experts in the foreign law and determining therefrom the essential
ingredients of the respective offences;
2. by examining the evidence adduced before the adjudicator, both oral
and documentary, to ascertain whether or not that evidence was sufficient
to establish that the essential ingredients of the offence in Canada had
been proven in the foreign proceedings, whether precisely described in
the initiating documents or in the statutory provisions in the same words
or not;
3. by a combination of paragraph one and two.
The visa officer is required to establish a prima facie case
for equating the offence with a provision of the Canadian criminal law.28
The visa officer, not a legal expert, must be satisfied that all the elements
set out in section 19(2)(a.1)(ii) have been met.29
The onus, however, is always on the sponsor to show that the visa officer
erred in determining that the applicant is criminally inadmissible to
Canada.
To determine equivalency between a foreign and a Canadian offence, it
is not necessary for the Minister to present evidence of the criminal
statutes of the foreign state; however, proof of foreign law ought to
be made if the foreign statutory provisions exist.30
Where there is no evidence of the foreign law, the evidence before the
panel must be examined to determine whether the essential ingredients
of the Canadian offence had to have been proven to have secured the foreign
conviction.31
In some cases where the law of the foreign jurisdiction has not been
adduced in evidence, use has been made of the legal doctrine malum
in se. Black's Law Dictionary (5th edition) defines malum in
se as follows:
An act is said to be malum in se when it is inherently and essentially
evil, that is, immoral in its nature and injurious in its consequences,
without any regard to the fact of its being noticed or punished by the
law of the state. Such are most or all of the offenses cognizable at common
law (without the denouncement of a statute); as murder, larceny, etc.
In Dayan, the concept of malum in se was used because
there was no proof of the foreign law for the purposes of equivalencing.
Mr. Justice Urie said the following about the use of this doctrine:
Reliance on the concept of offences as malum in se to prove
equivalency with provisions of our Criminal Code, is a device which should
be resorted to by immigration authorities only when for very good reason
[
] proof of foreign law has been difficult to make and then only
when the foreign law is that of a non-common law country. It is a concept
to which resort need not be had in the case of common law countries.32
If the scope of the Canadian offence is narrower than the scope of the
foreign offence, then it is necessary to ascertain the particulars of
the offence of which the applicant was convicted.33
It is necessary to "go beyond the wording of the statute in order
to determine whether the essential ingredients of the offence in Canada
had been proven in the foreign proceedings."34
If the scope of the Canadian offence is wider than the scope of the foreign
offence, it is not necessary to go beyond the wording of the statute in
order to determine whether the essential ingredients of the offence in
Canada had been proven in the foreign proceedings.35
Where neither a Canadian equivalent offence nor the essential ingredients
of the foreign offence are identified in the record, it may be impossible
to conclude that the visa officer had made a comparison between an offence
under Canadian law and the foreign offence.36
An issue which has arisen on many occasions is with respect to the availability
of defences and how defences fit into the evaluation of the essential
elements of the offence for the purpose of equivalencing. The Federal
Court of Appeal had the opportunity to deal with this issue in the case
of Li. 37
In this case, the Federal Court - Trial Division had found that the availability
of defences is not an essential element of the equivalency test.38
The Court of Appeal disagreed and said as follows:
A comparison of the "essential elements" of the respective
offences requires a comparison of the definitions of those offences including
defences particular to those offences or those classes of offences.39
In addition, the Court of Appeal concluded that the procedural or evidentiary
rules of the two jurisdictions should not be compared, even if the Canadian
rules are mandated by the Charter. The issue to be resolved in any equivalencing
case is not whether the person would have been convicted in Canada, but
whether there is a Canadian equivalent for the offence of which the person
was convicted outside Canada.
For a more detailed discussion of equivalency please see Chapter 8 of
the Removal Order Appeals paper.
2.5 EXCEPTIONS IN SECTIONS 19(1)(c.1) AND 19(2)(a.1)
Sections 19(1)(c.1) and 19(2)(a.1) provide for an exception from the
inadmissibility of a person to Canada who otherwise fits within the proscribed
class. The exception is for "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."
The Minister must decide the question of rehabilitation. Reasons are
required to be provided for decisions of this nature.40
The Court held that the Minister erred by not considering relevant evidence
(the fact that the Applicant had not reoffended for a period of ten years)
and by coming to an unreasonable conclusion, given the totality of evidence.41The
Appeal Division does not have the jurisdiction to determine whether a
person has or has not been rehabilitated within the exception to section
19(1)(c.1) or 19(2)(a.1).42
Rehabilitation is a factor, however, which the Appeal Division can consider
in the exercise of its discretionary jurisdiction43.
The Minister can delegate the power to determine rehabilitation.44
The Court has held, however, that the visa officer has no duty to question
the reasonableness of the Minister's decision on rehabilitation even where,
on the face of the record, the decision may be unreasonable.45
An issue which has arisen is whether there is a duty on the visa officer
to inform the applicant of the existence of the exception in sections
19(1)(c.1) and 19(2)(a.1). The Federal Court has only dealt with this
issue as it relates to earlier legislation which required, in the case
of section 19(1)(c), as it then read, for the Governor in Council to be
satisfied as to rehabilitation. In Wong 46,
the applicant gave material to establish his rehabilitation to the visa
officer instead of to the Governor in Council. The Court found it "unfortunate"
that the visa officer did not assist the applicant in getting the material
to the proper place, but the Court did not find this to be a reviewable
error as the burden to show that the Governor in Council was satisfied
as to rehabilitation rests with the applicant. In addition, the cases
of Mohammed 47,
Gill 48
and Dance 49
indicated that the responsibility of the visa officer is to be satisfied
that no decision by the Governor in Council has been made. The issue which
has not been resolved is whether this applies to the situation where the
Minister makes the decision as to rehabilitation given the proximity of
the visa officer to the Minister. Is there an obligation of fairness on
the visa officer to advise the applicant about the exception in these
sections?50
One of the criteria for the application of the exception in sections
19(1)(c.1) and 19(2)(a.1) is that "at least five years have elapsed
since the expiration of any sentence imposed for the offence
".
For immigration purposes, the Appeal Division has found that "any
sentence imposed" would include any period of incarceration, probation
or the suspension of a privilege.51
2.6 CONVICTION
One of the more common criminal inadmissibility sections seen in sponsorship
appeals is section 19(1)(c) which provides that a person who has been
convicted in Canada of an offence that may be punishable under any Act
of Parliament52
by a maximum term of imprisonment of ten years or more is inadmissible.
This provision would apply in the circumstances where the applicant had
lived in Canada at some time and therefore had been convicted in Canada.
The use of the word "convicted" in sections 19(1)(c), (c.1);
19(2)(a), (a.1); and 19(2)(b) means a conviction that has not been expunged.
Foreign convictions can also be expunged.53
In the case of a foreign jurisdiction, the legislation providing for the
expunging of a conviction should be accorded respect where the laws and
the legal system are similar to ours.54
Conversely, the Court held that it is not necessary to consider "Pardons"
obtained under foreign legislation55.
Certain criminal offences in Canada can be proceeded with by indictment
or by summary procedure. If proceeded with by indictment, the offence
may be punishable by a maximum term of imprisonment of 10 years or more
and therefore caught by the Immigration Act. If the offence is
proceeded with summarily then section 787(1) of the Criminal Code
provides that the maximum term of imprisonment is six months, unless otherwise
provided. For immigration purposes, a person who has been convicted in
Canada by summary procedure of an offence which could have been proceeded
with by way of indictment (a hybrid offence) has been convicted of a summary
offence.56
In the case of a foreign hybrid offence, it is irrelevant whether the
foreign conviction was obtained by indictment or summary procedure.57
2.7 SECTION 19(1)(e) and (f)
A visa officer may refuse an application for permanent residence to persons
who there are reasonable grounds to believe have engaged in acts of espionage
or subversion against democratic government, institutions or processes,
as they are understood in Canada. The Federal Court of Appeal recently
answered a certified question to clarify the meaning of the phrase "democratic
government".58
In the Qu 59case,
the respondent, a citizen of the People's Republic of China ("PRC"),
had engaged in espionage and subversion while active in the Chinese Students
and Scholars Association ("CSSA") at Concordia University in
Montreal. The visa officer refused the respondent's application for permanent
residence pursuant to s. 19(1)(f)(i) of the Immigration Act. The Trial
Division allowed the judicial review by finding that the CSSA was not
a "democratic institution" and the respondent's activities were
not directed at "democratic government, institutions or processes,
as they are understood in Canada. Question certified, "Do these reasons
correctly interpret subparagraph 19(1)(f)(i) of the Immigration Act?"
The Federal Court of Appeal held that the Trial Division erred when it
held that the expression "democratic government, institutions or
processes" ("institutions democratiques") was restricted
to institutions and processes involving "political governance".
The expression also encompasses institutions and processes, which although
non-governmental, are part and parcel of the democratic fabric of Canada.
A democratic institution for the purpose of s. 19(1)(f)(i) consists of
a structured group of individuals established in accordance with democratic
principles with preset goals and objectives who are engaged in lawful
activities in Canada of a political, religious, social or economic nature.
In recent cases before the Appeal Division, the panels have considered
the issue of whether there are reasonable grounds to believe that a person
is or was a member of a group and whether there are reasonable grounds
that the organization is or was engaged in terrorism.60
If so, the panel must go on to consider whether the person may fall into
the exception.61
2.8 SECTION 19(l)(i)
The Federal Court of Appeal recently held that paragraph. 19(1)(l) does
not contain a rebuttable presumption. The presence of the words "have
satisfied" in the excepting language suggests that a Ministerial
exception is to be made prior to the decision of the visa officer. As
the applicant failed to seek a Ministerial exception in a timely fashion,
such an exception is no longer available to him. The Appeal Division was
incorrect in deciding that there was a rebuttable presumption and that
the applicant had met it.62
2.9 SECTION 19(2)(b)
Section 19(2)(b) provides as follows:
19.(2) 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:
(b) persons who
(i) have been convicted in Canada under any Act of Parliament
of two or more summary conviction offences not arising out of a single
occurrence, other than offences designated as contraventions under the
Contraventions Act,
(ii) there are reasonable grounds to believe have been convicted outside
Canada of two or more offences, not arising out of a single occurrence,
that, if committed in Canada, would constitute summary conviction offences
under any Act of Parliament, or
(iii) have been convicted in Canada under any Act of Parliament of a
summary conviction offence, other than an offence designated as a contravention
under the Contraventions Act, and there are reasonable grounds to believe
have been convicted outside Canada of an offence that, if committed
in Canada, would constitute a summary conviction offence under any Act
of Parliament,
where any part of the sentences imposed for the offences was served
or to be served at any time during the five year period immediately
preceding the day on which they seek admission to Canada.
In this provision, the term "occurrence" is synonymous with
the terms "event" and "incident" and not synonymous
with "a course of events". Therefore, summary conviction offences
which were committed on different dates arose out of different occurrences
rather than a single occurrence.63
In a judicial review from a visa officer's refusal based on subparagraph
19(2)(b)(ii), the applicant argued that the offences for which he was
convicted were equivalent to municipal by-law infractions and not Criminal
Code offences. The Court allowed the application because in order for
an offence to be equivalent to a Criminal Code offence, it usually consists
of the actus reus and mens rea. It held:
"The essential elements of an offence are those components
of an offence usually consisting of the actus reus and mens rea, which
must be proven for a finding of guilt. Where there is no oral or documentary
evidence as to the circumstances of the commission of the offences, the
visa officer erred by importing into the analysis considerations not relevant
to a determination of the essential elements of an offence."64
2.10 COMPASSIONATE OR HUMANITARIAN CONSIDERATIONS
For a complete discussion of this subject in sponsorship appeals, see
chapter 9, "Compassionate or Humanitarian Considerations". Where
the refusal is valid in law, the Appeal Division may consider whether
or not compassionate or humanitarian considerations exist to warrant the
granting of special relief pursuant to section 77(3)(b) of the Act.
65
In the situation of criminal refusals, the fact that the Minister is
not satisfied that the applicant has been rehabilitated or that the five-year
period has expired does not prevent a consideration of the applicant's
rehabilitation under compassionate or humanitarian considerations.66
Where an applicant has been found inadmissible under section 19(1)(l),
compassionate and humanitarian considerations should be considered on
an appeal from the refusal67.
This case clearly addresses divergence noted in earlier Appeal Division
decisions.68
- Adam: M.C.I.
v. Adam, Hawa Ibrahim (F.C.A.,
no. A-19-98), Stone, Evans,
Isaac (dissenting), January 11, 2001. (F.C.T.D.,
no. IMM-3380-96), Jerome,
August 29, 1997).
- Aguilar: M.C.I.
v. Aguilar, Valentin Ogose, (ADQML-98-00476), Turmel, December
10, 1998.
- Ahmed, Mohammed Kamal v. M.C.I.
(IAD
M99-06900) Bourbonnais, December 6, 2000.
- Alouache, Samir v. M.C.I.
(F.C.A.,
no. A-681-95), Strayer, Linden,
Robertson, April 26, 1996.
- Alouache, Samir v. M.C.I.
(F.C.T.D.,
no. IMM-3397-94), Gibson,
October 11, 1995. Reported: Alouache v. Canada (Minister of Citizenship
and Immigration) (1995), 31 Imm.
L.R. (2d) 68 (F.C.T.D.).
- Aujla, Shivdev Singh v. M.C.I.
(VA1-01088), Mattu, November 6, 2001.
- Avedian, Astrid s. v. M.C.I.
(IAD
MA0-10714), Fortin, January 25, 2002 (reasons signed February 5, 2002).
- Baker v. M.C.I.,
[1999] 2 S.C.R.
817 (S.C.C.).
- Barnett, John v. M.C.I.
(F.C.T.D.,
no. IMM-4280-94), Jerome,
March 22, 1996. Reported: Barnett v. Canada (Minister of Citizenship
and Immigration) (1996), 33 Imm.
L.R. (2d) 1 (F.C.T.D.).
- Brannson v. Canada (Minister of Employment and Immigration),
[1981] 2 F.C. 141
(C.A.).
- Brar, Swarnjit Kaur v. M.C.I.
(VA0-01880), Mattu, September 17, 2001.
- Burgon: M.E.I.
v. Burgon, David Ross (F.C.A.,
no. A-17-90), MacGuigan,
Linden, Mahoney (concurring in the result), February 22, 1991. Reported:
Canada (Minister of Employment and Immigration) v. Burgon (1991),
13 Imm.
L.R. (2d) 102 (F.C.A.).
- Calatan, Wilma v. M.C.I.
(IAD
V98-00495), Boscariol, July 10, 2000.
- Chiau, Sing Chi Stephen v. M.C.I.
(A-75-98), Linden, Sexton, Evans, December 12, 2000.
- Chiau, Sing Chi Stephen v. M.C.I.
[1998] 2 F.C.642 (T.D.).
- Choi, Min Su v. M.C.I.
(F.C.T.D.,
no. IMM-975-99), Denault,
May 8, 2000.
- Crawford, Haslyn Boderick v. M.E.I.
(IAB T86-9309),
Suppa, Arkin, Townshend (dissenting), May 29, 1987. Reported: Crawford
v. Canada (Minister of Employment and Immigration) (1987), 3 Imm.
L.R. (2d) 12 (IAB).
- Dance, Neal John v. M.C.I.
(F.C.T.D.,
no. IMM-366-95), MacKay,
September 21, 1995.
- Dayan v. Canada (Minister of Employment and Immigration),
[1987] 2 F.C. 569
(C.A.).
- Denton-James, Lucy Eastwood v. M.C.I.
(V98-04493), Workun, April 3, 2002.
- Dhaliwal, Jagdish Kaur v. M.E.I.
(IAD
V91-01669), MacLeod, Wlodyka, Singh, March 29, 1993.
- Elmi, Rahma Ahmed v. M.C.I.
(IAD
TA0-01989), Sangmuah, August 27, 2001.
- Gill, Amir Kaur v. M.C.I.
(IAD
V98-04531), Boscariol, July 21, 1999.
- Gill: M.E.I.
v. Gill, Hardeep Kaur (F.C.A.,
no. A-219-90), Heald, Hugessen,
Stone, December 31, 1991.
- Halm v. Canada (Minister of Employment and Immigration),
[1995] 2 F.C. 331
(T.D.); 28 Imm.
L.R. (2d) 252 (F.C.T.D.)
2-7
- Hill, Errol Stanley v. M.E.I.
(F.C.A.,
no. A-514-86), Hugessen,
Urie (concurring), MacGuigan, January 29, 1987 at 2-3. Reported: Hill
v. Canada (Minister of Employment and Immigration) (1987), 1 Imm.
L.R. (2d) 1 (F.C.A.).
- Howard, Kenrick Kirk v. M.C.I.
(F.C.T.D.,
no. IMM-5252-94), Dubé,
January 4, 1996.
- James, Sharon Elizabeth v. M.C.I.
(IAD
TA0-14459), Néron, February 21, 2002.
- Jeworski, Dorothy Sau Yun v. M.E.I.
(IAB W86-4070),
Eglington, Goodspeed, Vidal, September 17, 1986. Reported: Jeworski
v. Canada (Minister of Employment and Immigration) (1986), 1 Imm.
L.R. (2d) 59 (IAB).
- Kai Lee v. Canada (Minister of Employment and Immigration),
[1980] 1 F.C. 374
(C.A.).
- Kan, Chow Cheung v. M.C.I.
(F.C.T.D.,
no. IMM-728-00), Rouleau,
November 21, 2000.
- Karam, Barbara v. M.C.I.
(IAD
M97-03916), Sivak, Bourbonnais, Colavecchio, March 20, 2000.
- Kiani, Raja Ishtiaq Asghar v. M.C.I.
(F.C.T.D.,
no. IMM-3433-94), Gibson,
May 31, 1995. Reported: Kiani v. Canada (Minister of Citizenship
and Immigration) (1995), 31 Imm.
L.R. (2d) 269 (F.C.T.D.).
- Kin, Kwong Kwok v. M.C.I.
(F.C.T.D.,
no. IMM-3804-99), Nadon,
December 15, 2000.
- Ladbon, Kamran Modaressi v. M.C.I.
(F.C.T.D.,
no. IMM-1540-96), McKeown,
May 24, 1996.
- Lam, Chun Wai v. M.E.I.
(F.C.T.D.,
no. IMM-4901-94), Tremblay-Lamer,
November 16, 1995.
- Legault, Alexander Henri v. S.S.C.
(F.C.T.D.,
no. IMM-7485-93), McGillis,
January 17, 1995. Reported: Legault v. Canada (Secretary of State)
(1995), 26 Imm.
L.R. (2d) 255 (F.C.T.D.).
- Legault: M.C.I.
v. Legault, Alexander Henri (F.C.A.,
no. A-47-95), Marceau, MacGuigan,
Desjardins, October 1, 1997. Reported: Legault v. Canada (Secretary
of State) (1995), 26 Imm.
L.R. (2d) 255 (F.C.T.D.).
- Lei, Alberto v. S.G.C. (F.C.T.D.,
no. IMM-5249-93), Nadon,
February 21, 1994 at 4. Reported: Lei v. Canada (Solicitor General)
(1994), 24 Imm.
L.R. (2d) 82 (F.C.T.D.).
- Leung, Chi Wah Anthony v. M.C.I.
(F.C.A.,
no. A-283-98), Stone, Evans,
Malone, May 3, 2002.
- Leung, Chi Wah Anthony v. M.C.I.
(F.C.T.D.,
no. IMM-1061-97), Gibson,
April 20, 1998.
- Li, Ronald Fook Shiu v. M.C.I.
(F.C.A.,
no. A-329-95), Strayer, Robertson,
Chevalier, August 7, 1996. Reported: Li v. Canada (Minister of Citizenship
and Immigration), [1997] 1 F.C.
235 (C.A.).
- Li, Ronald Fook Shiu v. M.C.I.
(F.C.T.D.,
no. IMM-4210-94), Cullen,
May 11, 1995.
- Massie, Pia Yona v. M.C.I.
(F.C.T.D.,
no. IMM-6345-98), Pinard,
May 26, 2000.
- Mercado, Maria del Carme v. M.C.I.
(IAD
TA0-08201), Sangmuah, June 7, 2001.
- Mohammed v. Canada (Minister of Employment and Immigration),
[1989] 2 F.C. 363
(C.A.).
- Obaseki: M.C.I.
v. Obaseki, Eghe (IAD
T99-07461), Kalvin, November 15, 2000.
- Owens: M.C.I.
v. Owens, Kathleen (F.C.T.D.,
no. IMM-5668-99), Dawson,
October 11, 2000.
- Perry, Ivelaw Barrington v. M.C.I.
(IAD
V94-01575), Ho, November 1, 1995.
- Pimentel, Juliet P. v. M.C.I.
(IAD
T99-03592), Kelley, Michnick, MacAdam, April 13, 2000.
- Poon, Wai Chin v. M.C.I.
(IAD
VA0-00415), Clark, February 20, 2001.
- Popic, Bojan v. M.C.I.
(F.C.T.D.,
no. IMM-5727-98), Hansen,
September 14, 2000.
- Potter v. Canada (Minister of Employment and Immigration),
[1980] 1 F.C. 609
(C.A.).
- Qu: M.E.I.
v. Qu, Yong Jie (F.C.A.,
no. A-289-00) Richard, Décary,
Noël, December 21, 2001; 2001 F.C.A.
399.
- Ramanathapillai, Saraladevy v. M.C.I.
(IAD
MA0-06418), di Pietro, February 26, 2002.
- Ramawad v. Minister of Manpower and Immigration, [1978] 2
S.C.R. 375.
- Ramirez v. Canada (Minister of Employment and Immigration),
[1992] 2 F.C. 306
(C.A.).
- Reyes, Frediswinda v. M.E.I.
(IAB 86-9267),
Ariemma, Arkin, Fatsis, January 13, 1987. Reported: Reyes v. Canada
(Minister of Employment and Immigration) (1987), 1 Imm.
L.R. (2d) 148 (IAB).
- Sabour, Mohammad Reza v. M.C.I.
(F.C.T.D.,
no. IMM-3268-99), Lutfy,
October 4, 2000.
- Sahota, Baljit Singh v. M.C.I.
(IAD
V99-01237), Boscariol, September 7, 2000.
- Shergill, Ram Singh v. M.E.I.
(IAD
W90-00010), Rayburn, Arpin, Verma, February 19, 1991.
- Sidhu Amarjit Kaur v. M.C.I.
(IAD
VA1-01989), Mattu, March 12, 2002.
- Simpson, Brenda Rosemarie v. M.E.I.
(IAB T86-9626),
Sherman, Chu, Eglington (concurring), July 16, 1987. Reported: Simpson
v. Canada (Minister of Employment and Immigration) (1987), 3 Imm.
L.R. (2d) 20 (IAB).
- Singh, Rajwinder v. M.C.I.
(IAD
M99-08430), di Pietro, April 2, 2001.
- Sivakumar v. Canada (Minister of Employment and Immigration),
[1994] 1 F.C. 433
(C.A.).
- Sroya, Sansar Singh v. M.C.I.
(IAD
VA0-03542), July 26, 2001.
- Steward, Charles Chadwick v. M.E.I.
(F.C.A.,
no. A-962-87), Heald, Marceau,
Lacombe, April 15, 1988. Reported: Steward v. Canada (Minister of
Employment and Immigration), [1988] 3 F.C.
487 (C.A.).
- Thamber, Avtar Singh v. M.C.I.
(F.C.T.C., no. Imm-2407-00),
McKeown, March 12, 2001.
- Tsang, Lannie Wai Har v. M.C.I.
(F.C.A.,
no. A-179-96), Marceau, Desjardins,
McDonald, February 11, 1997. Reported: Tsang v. Canada (Minister
of Citizenship and Immigration) (1997), 37 Imm.
L.R. (2d) 1 (F.C.A.).
- Tsang, Lannie Wai Har v. M.C.I.
(F.C.T.D.,
no. IMM-2585-95), Dubé,
February 7, 1996.
- Tsang, Sau Lin v. M.E.I.
(IAB 85-9587),
D. Davey, Chu, Ahara, January 8, 1988.
- Virk, Charanjit Singh v. M.C.I.
(VA0-03505), Mattu, March 15, 2002.
- Waizi, Suraya v. M.C.I.
(IAD
T96-01942), Hoare, January 18,2000.
- Wong, Yuen-Lun v. M.C.I.
(F.C.T.D.,
no. IMM-2882-94), Gibson,
September 29, 1995.
- Yuen, Kwong Yau v. M.C.I.
(F.C.A.,
no. A-152-99), Létourneau,
Sexton, Malone, December 21, 2000.
- Zanth, Karen-Lynn v. M.C.I.
(IAD
M99-05734), di Pietro, May 23, 2001.
- Section 19 of the Immigration Act is
also a basis on which persons can be ordered removed from Canada. Therefore,
the Appeal Division can see issues of criminal inadmissibility when
dealing with section 70 appeals from removal orders as well as with
section 77 appeals from sponsorship refusals.
- See the Legislation Guide for the IAD,
Legal Services, IRB,
January 2, 1998. For the full text of the criminal inadmissibility provisions
refer to the relevant sections of the Immigration Act.
- Reyes, Frediswinda v. M.E.I.
(IAB 86-9267),
Ariemma, Arkin, Fatsis, January 13, 1987. Reported: Reyes v. Canada
(Minister of Employment and Immigration) (1987), 1 Imm.
L.R. (2d) 148 (IAB).
- Section 77(3.01) provides:
77.(3.01) No appeal lies to the Appeal Division under subsection
(3) in respect of a person
(a) with respect to whom a certificate has been filed under subsection
40.1(1) where it has been determined, pursuant to paragraph 40.1(4)(d),
that the certificate is reasonable; or
(b) who is a member of an inadmissible class described in paragraph
19(1)(c),(c.1),(c.2) or (d) where the Minister is of the opinion
that the person constitutes a danger to the public in Canada.
- Tsang, Lannie Wai Har v. M.C.I.
(F.C.T.D.,
no. IMM-2585-95), Dubé,
February 7, 1996.
- The Court relied on the transitional provisions
found in section 15(3) of Bill C-44 to arrive at its conclusion. Section
15(3) provides:
15.(3) Subsection 77(3.01) of the Act, as enacted by subsection
(2), applied to an appeal that has been made on or before the coming
into force of that subsection and in respect of which the hearing
has not been commenced, but a person who has made such an appeal may,
within fifteen days after the person has been notified that, in the
opinion of the Minister, the person constitutes a danger to the public
in Canada, make an application for judicial review under section 82.1
of the Act with respect to the matter that was the subject of the
decision made under subsection 77(1).
- Tsang, Lannie Wai Har v. M.C.I.
(F.C.A.,
no. A-179-96), Marceau, Desjardins,
McDonald, February 11, 1997. Reported: Tsang v. Canada (Minister
of Citizenship and Immigration) (1997), 37 Imm.
L.R. (2d) 1 (F.C.A.).
- Chiau, Sing Chi Stephen v. M.C.I.
(A-75-98), Linden, Sexton, Evans, December 12, 2000. See two cases considering
19(1)(f)(iii)(B) Sabour, Mohammad Reza v. M.C.I.
(F.C.T.D.,
no. IMM-3268-99), Lutfy,
October 4, 2000 and M.C.I.
v. Owens, Kathleen (F.C.T.D.,
no. IMM-5668-99), Dawson,
October 11, 2000. [Judicial review of IAD
V98-02014, Carver, November 4, 1999].
- Kin, Kwong Kwok v. M.C.I.
(F.C.T.D.,
no. IMM-3804-99), Nadon,
December 15, 2000. While the decision post-dates the Court of Appeal
decision in Chiau, ibid, it cites only the Trial Division decision.
- Chiau, Sing Chi Stephen v. M.C.I.
[1998] 2 F.C.642 (T.D.).
- Kin, supra, footnote 9.
- Yuen, Kwong Yau v. M.C.I.
(F.C.A.,
no. A-152-99), Létourneau,
Sexton, Malone, December 21, 2000. [Judicial review of Adjudication
0003-96-1783, Murrant, December 4, 1997]. Appeal from (F.C.T.D.,
no. IMM-5272-97), Cullen,
February 4, 1999, question certified March 5, 1999.
- M.C.I.
v. Aguilar, Valentin Ogose, (ADQML-98-00476), Turmel, December
10, 1998.
- For example, notwithstanding a conviction under
Sri Lankan law, there was no equivalence with section 368 of the Criminal
Code of Canada: Ramanathapillai, Saraladevy v. M.C.I.
(IAD
MA0-06418), di Pietro, February 26, 2002.
- For examples of Appeal Division cases arising
from sponsorship refusals under section 19(1)(c.1)(ii) see: Pimentel,
Juliet P. v. M.C.I.
(IAD
T99-03592), Kelley, Michnick, MacAdam, April 13, 2000. The following
cases involve allegations that an applicant knowingly furnished false
information : Sahota, Baljit Singh v. M.C.I.
(IAD
V99-01237), Boscariol, September 7, 2000; Sroya, Sansar Singh v.
M.C.I.
(IAD
VA0-03542), July 26, 2001; Sidhu Amarjit Kaur v. M.C.I.
(IAD
VA1-01989), Mattu, March 12, 2002. However, in Singh, Rajwinder
v. M.C.I.
(IAD
M99-08430), di Pietro, April 2, 2001 the panel held that the evidence
of any intention to commit fraud was based on pure conjecture, whereas
the Criminal Code requires knowledge that the document was forged. Similarly,
in Gill, Amir Kaur v. M.C.I.
(IAD
V98-04531), Boscariol, July 21, 1999, the evidence did not establish
the requisite knowledge on the part of the applicant.
- Ahmed, Mohammed Kamal v. M.C.I.
(IAD
M99-06900) Bourbonnais, December 6, 2000.
- Massie, Pia Yona v. M.C.I.
(F.C.T.D.,
no. IMM-6345-98), Pinard,
May 26, 2000. There is sentencing jurisdiction under the common law
and under the Criminal Code. The Court found that the powers available
to a judge in imposing punishment for contempt of court was inherent,
from common law. Thus, the offence, criminal contempt, was not one "that
may be punishable under any Act of Parliament
".
- Halm v. Canada (Minister of Employment and
Immigration), [1995] 2 F.C.
331 (T.D.); 28 Imm.
L.R. (2d) 252 (F.C.T.D.).
- Ibid.; Ramirez v. Canada (Minister
of Employment and Immigration), [1992] 2 F.C.
306 (C.A.); Sivakumar
v. Canada (Minister of Employment and Immigration), [1994] 1 F.C.
433 (C.A.).
- Choi, Min Su v. M.C.I.
(F.C.T.D.,
no. IMM-975-99), Denault,
May 8, 2000.
- Legault, Alexander Henri v. S.S.C.
(F.C.T.D.,
no. IMM-7485-93), McGillis,
January 17, 1995. Reported: Legault v. Canada (Secretary of State)
(1995), 26 Imm.
L.R. (2d) 255 (F.C.T.D.).
- See Kiani, Raja Ishtiaq Asghar v. M.C.I.
(F.C.T.D.,
no. IMM-3433-94), Gibson,
May 31, 1995. Reported: Kiani v. Canada (Minister of Citizenship
and Immigration) (1995), 31 Imm.
L.R. (2d) 269 (F.C.T.D.),
which distinguishes Legault on its facts because in Kiani
the adjudicator made an independent determination on the basis of the
evidence adduced.
- M.C.I.
v. Legault, Alexander Henri (F.C.A.,
no. A-47-95), Marceau, MacGuigan,
Desjardins, October 1, 1997. Reported: Legault v. Canada (Secretary
of State) (1995), 26 Imm.
L.R. (2d) 255 (F.C.T.D.).
- Halm, supra, footnote 18. The Federal
Court - Trial Division, in Howard, Kenrick Kirk v. M.C.I.
(F.C.T.D.,
no. IMM-5252-94), Dubé,
January 4, 1996, has stated that the Appeal Division does not have the
jurisdiction to rule on the constitutionality of any legislation other
than the Immigration Act. Challenges to the constitutionality
of other federal legislation, as it may arise in an appeal before the
Appeal Division, must be brought in another forum.
- Li, Ronald Fook Shiu v. M.C.I.
(F.C.A.,
no. A-329-95), Strayer, Robertson,
Chevalier, August 7, 1996. Reported: Li v. Canada (Minister of Citizenship
and Immigration), [1997] 1 F.C.
235 (C.A.). Affirming
in part, Li, Ronald Fook Shiu v. M.C.I.
(F.C.T.D.,
no. IMM-4210-94), Cullen,
May 11, 1995.
- Brannson v. Canada (Minister of Employment
and Immigration), [1981] 2 F.C.
141 (C.A.), at
152-153.
- Hill, Errol Stanley v. M.E.I.
(F.C.A.,
no. A-514-86), Hugessen,
Urie (concurring), MacGuigan, January 29, 1987 at 2-3. Reported: Hill
v. Canada (Minister of Employment and Immigration) (1987), 1 Imm.
L.R. (2d) 1 (F.C.A.).
- Tsang, Sau Lin v. M.E.I.
(IAB 85-9587),
D. Davey, Chu, Ahara, January 8, 1988.
- Choi, supra, footnote 20.
- Dayan v. Canada (Minister of Employment and
Immigration), [1987] 2 F.C.
569 (C.A.).
- Ibid.
- Dayan, supra, footnote 30 at 578. See
too M.C.I.
v. Obaseki, Eghe (IAD
T99-07461), Kalvin, November 15, 2000 where the Appeal Division noted
that the doctrine of malum in se is to be used only where there
is a very good reason why the foreign law was not adduced in evidence.
Moreover, it held that it is not appropriate to extend the doctrine
of malum in se to a case in which, not only was the law of
the foreign jurisdiction not adduced, but the person concerned was not
convicted of an offence.
- Brannson, supra, footnote 26.
- Lei, Alberto v. S.G.C. (F.C.T.D.,
no. IMM-5249-93), Nadon,
February 21, 1994 at 4. Reported: Lei v. Canada (Solicitor General)
(1994), 24 Imm.
L.R. (2d) 82 (F.C.T.D.).
- Lam, Chun Wai v. M.E.I.
(F.C.T.D.,
no. IMM-4901-94), Tremblay-Lamer,
November 16, 1995. See too Calatan, Wilma v. M.C.I.
(IAD
V98-00495), Boscariol, July 10, 2000.
- Jeworski, Dorothy Sau Yun v. M.E.I.
(IAB W86-4070),
Eglington, Goodspeed, Vidal, September 17, 1986. Reported: Jeworski
v. Canada (Minister of Employment and Immigration) (1986), 1 Imm.
L.R. (2d) 59 (IAB).
- Li, Ronald Fook Shiu (F.C.A.),
supra, footnote 25.
- Li, Ronald Fook Shiu (F.C.T.D.),
supra, footnote 25. Li (F.C.T.D.)
distinguished Steward, Charles Chadwick v. M.E.I.
(F.C.A.,
no. A-962-87), Heald, Marceau,
Lacombe, April 15, 1988. Reported: Steward v. Canada (Minister of
Employment and Immigration), [1988] 3 F.C.
487 (C.A.) on the
basis that "colour of right" in the Steward offence
was an essential element of the offence and not a defence.
- Li, Ronald Fook Shiu (F.C.A.),
supra, footnote 25 at 252.
- Thamber, Avtar Singh v. M.C.I.
(F.C.T.C., no. Imm-2407-00),
McKeown, March 12, 2001, in obiter, citing Baker v. M.C.I.,
[1999] 2 S.C.R.
817 (S.C.C.).
- Thamber, supra, footnote 40.
- Crawford, Haslyn Boderick v. M.E.I.
(IAB T86-9309),
Suppa, Arkin, Townshend (dissenting), May 29, 1987. Reported: Crawford
v. Canada (Minister of Employment and Immigration) (1987), 3 Imm.
L.R. (2d) 12 (IAB).
- See chapter 9, "Compassionate or Humanitarian
Considerations," for a more detailed discussion.
- Section 121 of the Immigration Act.
This is a new power of delegation enacted by S.C.
1995, c. 15 (in force July 10, 1995). Under earlier legislation, the
Minister could not delegate the power to decide rehabilitation in these
cases. See Ramawad v. Minister of Manpower and Immigration,
[1978] 2 S.C.R.
375; Simpson, Brenda Rosemarie v. M.E.I.
(IAB T86-9626),
Sherman, Chu, Eglington (concurring), July 16, 1987. Reported: Simpson
v. Canada (Minister of Employment and Immigration) (1987), 3 Imm.
L.R. (2d) 20 (IAB);
and Crawford, supra, footnote 42.
- Leung, Chi Wah Anthony v. M.C.I.
(F.C.T.D.,
no. IMM-1061-97), Gibson,
April 20, 1998; certified question "Is a visa officer under a duty
to question the reasonableness of the Minister's decision made pursuant
to section 19(1)(c.1)(I) where on the face of the record the decision
may be unreasonable?" Answered in the negativeLeung, Chi Wah
Anthony v. M.C.I.
(F.C.A.,
no. A-283-98), Stone, Evans,
Malone, May 3, 2002.
- Wong, Yuen-Lun v. M.C.I.
(F.C.T.D.,
no. IMM-2882-94), Gibson,
September 29, 1995.
- Mohammed v. Canada (Minister of Employment
and Immigration), [1989] 2 F.C.
363 (C.A.).
- M.E.I.
v. Gill, Hardeep Kaur (F.C.A.,
no. A-219-90), Heald, Hugessen,
Stone, December 31, 1991. Gill was applied in Dhaliwal,
Jagdish Kaur v. M.E.I.
(IAD
V91-01669), MacLeod, Wlodyka, Singh, March 29, 1993.
- Dance, Neal John v. M.C.I.
(F.C.T.D.,
no. IMM-366-95), MacKay,
September 21, 1995.
- In Crawford, supra, footnote 42 at 3,
the majority of the Immigration Appeal Board found that when the Minister
was to determine rehabilitation, a duty existed to advise the applicant
of the possibility of coming within the exception. The majority stated
as follows:
[
] the visa officer is responsible to act as a representative
of the Minister on the issue of rehabilitation. Once the prohibition
has been established under paragraph 19(2)(a) the visa officer has
an obligation to inform the applicant of the possibility of coming
within the exception from the general rule of criminal inadmissibility
by showing rehabilitation to the Minister.
- Shergill, Ram Singh v. M.E.I.
(IAD
W90-00010), Rayburn, Arpin, Verma, February 19, 1991.
- Massie, supra, footnote 17. The offence
must be punishable under 'any Act of Parliament', however, a punishment
imposed for criminal contempt is not codified and derives from the common
law, therefore such a conviction does not fill the requirement.
- M.E.I.
v. Burgon, David Ross (F.C.A.,
no. A-17-90), MacGuigan,
Linden, Mahoney (concurring in the result), February 22, 1991. Reported:
Canada (Minister of Employment and Immigration) v. Burgon (1991),
13 Imm.
L.R. (2d) 102 (F.C.A.).
In Burgon, the Court had to consider the application to the
definition of "convicted" in the Immigration Act
of the United Kingdom Powers of Criminal Courts Act, 1973,
which legislation provided that a person who was convicted of an offence
(like Ms. Burgon's offence) and received a probation order was deemed
not to be convicted of the offence. In the Court's view, Ms. Burgon
was not considered convicted under United Kingdom law and therefore
because the United Kingdom and Canadian legal systems were so similar,
there was no conviction for purposes of the Immigration Act.
See also Barnett, John v. M.C.I.
(F.C.T.D.,
no. IMM-4280-94), Jerome,
March 22, 1996. Reported: Barnett v. Canada (Minister of Citizenship
and Immigration) (1996), 33 Imm.
L.R. (2d) 1 (F.C.T.D.).
In Barnett, the Court considered another piece of legislation,
the United Kingdom Rehabilitation of Offenders Act, 1974. This
legislation provided that, where a person was convicted and sentenced
for certain offences and was then rehabilitated, the conviction was
expunged. The Court applied the rationale in Burgon and found
that, although there were differences in the two pieces of legislation,
the effect was the same - under both statutes, the person could not
be said to have been convicted. Therefore, Mr. Barnett was not considered
to have been convicted in the United Kingdom and he was not convicted
for purposes of the Immigration Act.
- Burgon, ibid., where the foreign jurisdiction
was the United Kingdom.
- Kan, Chow Cheung v. M.C.I.
(F.C.T.D.,
no. IMM-728-00), Rouleau,
November 21, 2000.
- Kai Lee v. Canada (Minister of Employment
and Immigration), [1980] 1 F.C.
374 (C.A.). inadmissible
if the person had been "convicted of an offence that, if committed
in Canada, constitutes
an offence that may be punishable by way
of indictment under any other Act of Parliament
" (section
19(2)(a)). Bill C-86 (S.C.
1992, c. 49, in force February 1, 1993) amended this section and the
reasoning in Kai Lee appears to be no longer applicable because
the change of wording in section 19(2)(a) now provides that as long
as the offence may be punishable by way of indictment, a summary conviction
is sufficient to bring the applicant within the section: Ladbon,
Kamran Modaressi v. M.C.I.
(F.C.T.D.,
no. IMM-1540-96), McKeown,
May 24, 1996.
- Potter v. Canada (Minister of Employment
and Immigration), [1980] 1 F.C.
609 (C.A.).
- M.E.I.
v. Qu, Yong Jie (F.C.A.,
no. A-289-00) Richard, Décary,
Noël, December 21, 2001; 2001 F.C.A.
399. [Appeal from (F.C.T.C., no. IMM-5114-98),
Lemieux, April 20, 2000.].
- Ibid.
- Denton-James, Lucy Eastwood v. M.C.I.
(V98-04493), Workun, April 3, 2002. The issue of an alleged membership
of a triad was also considered in refusal under 19(1)(c.2) in Poon,
Wai Chin v. M.C.I.
(IAD
VA0-00415), Clark, February 20, 2001.
- Avedian, Astrid s. v. M.C.I.
(IAD
MA0-10714), Fortin, January 25, 2002 (reasons signed February 5, 2002).
- M.C.I.
v. Adam, Hawa Ibrahim (F.C.A.,
no. A-19-98), Stone, Evans,
Isaac (dissenting), January 11, 2001. (F.C.T.D.,
no. IMM-3380-96), Jerome,
August 29, 1997). [Judicial review of IAD
T95-05027, Townshend, August 16, 1996].
- Alouache, Samir v. M.C.I.
(F.C.T.D.,
no. IMM-3397-94), Gibson,
October 11, 1995. Reported: Alouache v. Canada (Minister of Citizenship
and Immigration) (1995), 31 Imm.
L.R. (2d) 68 (F.C.T.D.).
Affirmed on other grounds by Alouache, Samir v. M.C.I.
(F.C.A.,
no. A-681-95), Strayer, Linden,
Robertson, April 26, 1996. In this case, the applicant argued that his
three convictions arose out of a single occurrence which was the applicant's
difficult relationship with his former spouse. The Court did not accept
this argument as the breakdown of the applicant's marriage was "a
course of events" and not a single occurrence.
- Popic, Bojan v. M.C.I.
(F.C.T.D.,
no. IMM-5727-98), Hansen,
September 14, 2000.
- For examples of cases involving compassionate
and humanitarian considerations in refusals under section 19(1)(c.1)(ii)
see Brar, Swarnjit Kaur v. M.C.I.
(VA0-01880), Mattu, September 17, 2001; Aujla, Shivdev Singh v.
M.C.I.
(VA1-01088), Mattu, November 6, 2001; Virk, Charanjit Singh v. M.C.I.
(VA0-03505), Mattu, March 15, 2002. Note too a decision where the panel
held that the children's interests outweighed the negative factors in
the applicant's history [ he was refused pursuant to section 19(2)(a)]:
Zanth, Karen-Lynn v. M.C.I.
(IAD
M99-05734), di Pietro, May 23, 2001. However, in James, Sharon Elizabeth
v. M.C.I.
(IAD
TA0-14459), Néron, February 21, 2002 and in Mercado, Maria
del Carme v. M.C.I.
(IAD
TA0-08201), Sangmuah, June 7, 2001, the panels held that the best interests
of the children did not require that the appeals be allowed.
- Perry, Ivelaw Barrington v. M.C.I.
(IAD
V94-01575), Ho, November 1, 1995.
- Adam,, footnote 62. The Court agreed
with the Trial Division that s. 19(1)(l) does not contain a rebuttable
presumption. However, the Appeal Division ought to have dealt with the
issue of discretionary relief. The matter was remitted to the Appeal
Division for redetermination on that issue.
- Karam, Barbara v. M.C.I.
(IAD
M97-03916), Sivak, Bourbonnais, Colavecchio, March 20, 2000. In this
case the panel held that compassionate and humanitarian grounds can
not be considered on appeal from a S.19(l)(1) refusal and the only relief
available to such applicants is through Ministerial discretion. A different
approach was taken in Waizi, Suraya v. M.C.I.
(IAD
T96-01942), Hoare, January 18,2000, where the Appeal Division held that
it had the jurisdiction to grant special relief in cases involving a
refusal based on s. 19(1)(l) andElmi, Rahma Ahmed v. M.C.I.
(IAD
TA0-01989), Sangmuah, August 27, 2001 where the panel held that there
were insufficient humanitarian and compassionate considerations to warrant
the granting of special relief.
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