Digests

Di Bianca v. Canada (Minister of Citizenship and Immigration)

IMM-3041-01

2002 FCT 935, Blanchard J.

4/9/02

11 pp.

Application for judicial review of Visa Officer's decision applicant inadmissible as convicted in U.S. of knowingly, intentionally possessing controlled, counterfeit substance, namely cocaine--Visa Officer determined equivalent criminal offence in Canada Controlled Drugs and Substances Act, s. 4(3)(a)--Applicant American citizen married to Canadian citizen who sponsored him--Pled guilty in Pennsylvania of possession of cocaine--Respondent conceding Visa Officer erred by basing refusal on Immigration Act, s. 19(1)(c.1)-- Submitting however equivalent offence cited by Visa Officer could render applicant inadmissible under Immigration Act, s. 19(2)(a.1)--Although Visa Officer did reference wrong section of Immigration Act in refusal letter, error, admitted to by respondent, not fatal to Visa Officer's decision--Not reviewable error--Act clearly stating persons inadmissible if criminal offence committed outside Canada "may" be punishable by way of indictment--Act clearly contemplating hybrid offences, not creating duty to treat offence as if not punishable by way of indictment--Visa Officer did not err in equating offence for which applicant convicted in Pennsylvania to Controlled Drugs and Substances Act, s. 4(3) --S.C.C. decision in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 not authority for proposition duty on Visa Officer to consider whether case appropriate for issuance of Minister's permit when request not made--Application dismissed--Controlled Drugs and Substances Act, S.C. 1996, c. 19, s. 4(3)--Immigration Act, R.S.C., 1985, c. I-2, s. 19 (as am. by R.S.C., 1985 (3rd Supp.), c. 30, s. 3; S.C. 1992, c. 47, s. 77; c. 49, ss. 11, 122(c), (d); 1995, c. 15, s. 2; 1996, c. 19, s. 83; 2000, c. 24, s. 55).