Kim v. Canada (Minister of Citizenship and Immigration), (2015) 475 F.T.R. 18 (FC)

• Judge: Simpson, J.
• Court: Federal Court (Canada)
• Case Date: January 28, 2015
• Jurisdiction: Canada (Federal)
• Citations: (2015), 475 F.T.R. 18 (FC);2015 FC 122

Kim v. Can. (M.C.I.) (2015), 475 F.T.R. 18 (FC)

MLB headnote and full text

Temp. Cite: [2015] F.T.R. TBEd. FE.035

Chakhan Kim (applicant) v. The Minister of Citizenship and Immigration (respondent)

(IMM-3539-14; 2015 FC 122)

Indexed As: Kim v. Canada (Minister of Citizenship and Immigration)

Federal Court

Simpson, J.

January 28, 2015 and August 19, 2015.

Summary:

The applicant, a citizen of South Korea, applied for permanent residence as a federal skilled worker. A visa officer refused the application, finding that the applicant and her husband were (a) inadmissible for two years because they had made a material misrepresentation; and (b) permanently inadmissible because the husband was criminally inadmissible. The applicant applied for judicial review, arguing that she was denied procedural fairness, the officer's equivalency analysis respecting her husband's convictions was unreasonable, and her husband should have been deemed to be rehabilitated.

The Federal Court dismissed the application.

Aliens - Topic 1230

Admission - Immigrants - Application for admission - Immigrant visa - Duty of officer (incl. duty of fairness) - Kim, a citizen of South Korea, applied for permanent residence as a federal skilled worker - A visa officer refused the application, finding that Kim and her husband were (a) inadmissible for two years because they had made a material misrepresentation; and (b) permanently inadmissible because the husband was criminally inadmissible - Kim applied for judicial review, arguing that she was denied procedural fairness because she was not told of the potential seriousness of the officer's concerns in the officer's Fairness Letter (i.e., she was not told that inadmissibility could result from non-disclosure and the husband's convictions) - The Federal Court dismissed the application - The duty of fairness in this context was low - It was not necessary for the officer to state that his concerns could result in Kim's inadmissibility - See paragraphs 8 and 9.

Aliens - Topic 1230.4

Admission - Immigrants - Application for admission - Immigrant visa - Skilled workers - [See Aliens - Topic 1230 ].

Aliens - Topic 1746

Exclusion and expulsion - Immigration - Exclusion - Particular persons - Persons convicted of crime - Kim and her husband, citizens of South Korea, applied for permanent residence as federal skilled workers - A visa officer refused the application because, inter alia, the husband was criminally inadmissible on account of two convictions in South Korea: turnover of a car by professional negligence (1988) and driving with a cancelled driver's license (1998) - Kim applied for judicial review, arguing that the officer's equivalency analysis was unreasonable - The Federal Court dismissed the application - The officer found the 1998 conviction to be equivalent to s. 249(1) of the Criminal Code (dangerous driving), and the 1998 conviction to be equivalent to s. 259(4) of the Criminal Code (driving while disqualified) - The officer considered the elements of each offence - The language of the South Korean statutes was clear - There was no wording that required expert evidence - See paragraphs 10 to 14.

Aliens - Topic 1755

Exclusion and expulsion - Immigration - Exclusion - Particular persons - Exceptions - Criminal rehabilitation - Kim and her husband, citizens of South Korea, applied for permanent residence as federal skilled workers - A visa officer refused the application because, inter alia, the husband was criminally inadmissible on account of two convictions in South Korea: turnover of a car by professional negligence (1988) and driving with a cancelled driver's license (1998) - The officer found these offences to be the equivalent of dangerous driving and driving while disqualified under ss. 249(1) and 259(4) of the Criminal Code - Kim applied for judicial review, arguing that the officer's decision was unreasonable because he failed to address the issue of her husband's rehabilitation - The Federal Court dismissed the application - Section 18(2) of the Immigration and Refugee Protection Regulations stated that a person could be deemed to be rehabilitated if he had been convicted of "no more than one offence that, if committed in Canada, would constitute an indictable offence" or "two or more offence that, if committed in Canada, would constitute summary conviction offences" - Under s. 36(3)(a) of the Immigration and Refugee Protection Act, the husband's offences were deemed to be indictable - Accordingly, he did not meet the criteria of s. 18 of the Regulations, and the officer was not required to consider whether he was deemed to be rehabilitated - See paragraphs 12 and 15 to 19.

Cases Noticed:

Obeta v. Canada (Minister of Citizenship and Immigration) (2012), 424 F.T.R. 191; 2012 FC 1542, refd to. [para. 9].

Wang v. Canada (Minister of Citizenship and Immigration) (2006), 302 F.T.R. 127; 2006 FC 1298, refd to. [para. 9].

Hill v. Minister of Employment and Immigration (1987), 73 N.R. 315 (F.C.A.), refd to. [para. 13].

Counsel:

Leonides F. Tungohan, for the applicant;

Edward Burnet, for the respondent.

Solicitors of Record:

Learlaw Tungohan & Company, Vancouver, British Columbia, for the applicant;

William F. Pentney, Deputy Attorney General of Canada,Vancouver, British Columbia, for the respondent.

This application for judicial review was heard at Vancouver, British Columbia, on January 28, 2015, before Simpson, J., of the Federal Court, who gave reasons orally on the same date, and delivered the following amended judgment and reasons at Ottawa, Ontario on August 19, 2015.