The following are the court cases that have changed Canadian Immigration Law. These short summaries are prepared for the information of litigants in immigration matters coming before the Canadian Federal Court and the Federal Court of Appeal.
2010: July
2010
July
DR. HYUN JOO PARK IMM-5190-09 2010 FC 782 JULY 27, 2010
The following summary will explain the decision imposed on a case that was submitted for judicial review by Dr. Hyun Joo Park. Dr. Park was appealing a denial of her application for permanent residency, which was made by an immigration officer at the Canadian Consulate General in New York. The application was denied due to the criminal inadmissibility of Dr. Park’s husband.
Background
Dr. Park applied for Canadian permanent residency in April of 2008. Her accompanying family members included her husband, and two daughters. Dr. Park, the applicant, held a Research Associate position at the Hospital for Sick Children at the time of the complaint. Dr. Park is undoubtedly a highly educated and capable scientist who personally qualified for permanent residency with ease.
Dr. Park’s husband also has high status among the scientific and medical community. However, Dr. Song (her husband) was arrested and convicted of “drunken driving” in Seoul, Korea. Other than Dr. Song’s blood alcohol level being recorded as 65 milligrams of alcohol in 100 milliliters of blood, there was no other evidence rendering him impaired or erratic. There was no evidence of failure of any physical tests that may have demonstrated impairment.
Decision: Visa Officer
In the letter from the visa officer, Dr. Park was informed that her application was denied due to her husband belonging to a group of persons considered inadmissible to Canada. After much consideration, the visa officer decided that the Korean drunken driving conviction was equivalent to that of “Operation While Impaired” in the Canadian Criminal Code. This equivalence deemed Dr. Song inadmissible, and thereby caused the denial of Dr. Park’s entire application. Accompanying, or even non accompanying, family members can cause inadmissibility issues for those that would otherwise not face them. This is outlined in Section 42(a) of the Immigration and Refugee Protection Act. The immigration officer concluded the decision by informing Dr. Park that her husband would be eligible for a process of criminal rehabilitation in 2012, which is also when a new submittal for a permanent residency application was suggested.
Decision: Minister of Citizenship and Immigration
The issue at hand was whether or not Dr. Park’s husband was truly inadmissible to Canada, based on the process that immigration officers undergo to attempt to make equivalencies between international law codes. Based on the Korean Road Traffic Act, and the explanation of the event by Dr. Song, the immigration officer determined that Dr. Song’s offence, given the information, would constitute an offence under Canadian law. The court upheld the reasoning and decision of the immigration officer and dismissed the case.
Reasoning
The determination of equivalency between offences committed in a foreign country to those that exist in Canada is a question of law. The essential elements of both the offences being compared must be equivalent. Verification of equivalency is done by carefully analyzing the wording of the statutes, and further, by using evidence from experts in foreign law. Expert opinion is only considered for verification of equivalency purposes when it is available. Since the immigration officer was not provided with expert evidence, and therefore did not have the benefit of such opinion, a decision had to be made by considering the precise wording of the statutes and the circumstances of the offence. The Korean law, and Canadian law, regarding impaired driving, does not include a specific blood alcohol measurement. Consequently, since the immigration officer did not receive supplemental information or evidence from the applicant, the officer had to determine equivalency without, and the court found that there was no error in law during this exercise. The court maintains that they will not interfere with a decision unless there was an error in law, and the court did not find sufficient evidence for this to be the case in the Dr. Park application.
