Date: 20030228
Docket: IMM-2344-00
Neutral citation: 2003 FCT 259
Ottawa, Ontario, this 28th day of February, 2003
Present: THE HONOURABLE MADAM JUSTICE SNIDER
BETWEEN:
VLADIMIR PONOMARENKO
Applicant
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review in respect of a decision dated March 30, 2000, made by B. Mischuk, Second Secretary (Immigration) at the Canadian Embassy in Moscow, Russia ("Moscow visa officer") whereby the application for permanent residence made by Vladimir Ponomarenko (the "Applicant") was refused.
Background
[2] The Applicant is originally from Russia where he was owner of a private business from 1982 to 1988 and a partner in two businesses from 1988 to 1991 in Moscow. The Applicant holds two passports; one Russian passport valid until June 14, 2005 and one from the Commonwealth of Dominica valid until December 20, 2005.
[3] In January 1998, the Applicant's counsel submitted an application for permanent residence pursuant to the Entrepreneurial Guidelines, to the Canadian Consulate General, in Buffalo, U.S.A. on the Applicant's behalf. The Applicant counsel's letter which accompanied the application stated:
Mr. Ponomarenko specializes in assisting fellow Russian investors in the purchase of real estate and acted as an economic bridge for his clients in Moscow.
[4] The Applicant was advised by the Canadian Consulate General, Buffalo, in a letter dated March 8, 1999, of the following:
We are awaiting results of enquiries with another government agency. Upon receipt of the result, we expect to complete the transfer of this case to New York for an interview, as you were notified in a letter dated September 22, 1998.
[5] On March 30, 1999, the Applicant's case was reviewed by a visa officer in New York ("New York visa officer") who decided that the file should be transferred to Moscow.
[6] By a letter dated October 22, 1999, the Applicant was advised that the interview regarding his application was to take place in Moscow on March 20, 2000.
[7] In response, the Applicant's counsel sent a letter dated February 8, 2000 indicating that he was unable to attend the interview because he was a citizen of Dominica, had no Russian passport and was unable to obtain a visa to visit Russia and had no business interests in Russia.
[8] The Applicant was notified by a letter dated February 24, 2000 that, pursuant to the Immigration Act, R.S.C. 1985, c. I-2 (the "Act") and Immigration Regulations, 1978, visa officers have the discretion to determine where the Applicant would be interviewed. The letter also advised that the Embassy information was that the Applicant held a valid Russian passport and, if he lost it, there was nothing to prevent him from obtaining a Russian visa. The letter warned that, if the Applicant failed to show for the interview, "we may be compelled to assume that he has failed to comply with one of our requirements, and refuse his application."
[9] The Applicant did not attend the interview scheduled for March 20, 2000 at the Canadian Embassy, Moscow, Russia. By a letter dated March 30, 2000, the Applicant's application for permanent residence was denied. The letter states that his application was refused because he failed to comply with the requirement of subsections 9(2) and 9(4) of the Act by failing to attend the interview.
Analysis
[10] For the reasons that follow, I am of the view that this application should be dismissed.
Issue 1: Was the decision to transfer the file unreasonable?
[11] Visa applicants have no statutory right to have their applications processed at any particular visa post. While efforts should be made to accommodate applicants, in the end, the place of the interview must remain at the discretion of the visa officer (Chen v. Canada, [1999] F.C.J. No. 528 (T.D.) (QL); Dotsenko v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 789 (T.D.) (QL); Voskanova v.Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 449 (T.D.) QL)).
[12] The notes on the Applicant's permanent resident file indicate that the New York visa officer determined that the file should be transferred to Moscow:
Since the source of his wealth is Russian-based, with tendrils in France and Canada, Moscow is much better equipped to deal with this Application, both from a language point-of-view (Applicant states that he speaks English "with difficulty"[sic] and document verification. An interview in Moscow is warrnated [sic] to check experience, source of funds, business documentation.
[13] The reasons for the transfer as contained in the file notes of the New York visa officer are not unreasonable and are supported by the evidence.
Issue 2: Did the New York visa officer fetter his discretion in transferring the file to Moscow?
[14] The Applicant submitted that the New York visa officer fettered his discretion by basing his decision to transfer the file on a Business Immigration policy statement requiring that all Russian origin applicants' files be transferred to the Canadian Embassy, Russia. Therefore, according to the Applicant, the New York visa officer's decision was made as a result of strict adherence to these guidelines without regard to the facts. I disagree.
[15] First, the Applicant failed to refer to any guideline that could be characterized as a strict transfer policy.
[16] Furthermore, the New York visa officer's notes indicate that he did consider relevant factors in deciding to transfer the Applicant's file. The reasons reveal that, even had there been a policy of automatic transfer, the New York visa officer made the decision to transfer considering the relevant factors in the Applicant's particular case and therefore did not fetter his discretion.
Issue 3: Did the Moscow visa officer fetter his discretion by refusing to grant the Applicant a second interview?
[17] The Applicant submitted that the Moscow visa officer's decision not to grant a second interview and to refuse the application for permanent residence was an improper exercise of his discretion. The Applicant argued that the Moscow visa officer had notice from the Applicant that he would be unable to attend the interview. Then, after the Applicant failed to appear at the interview, the Moscow visa officer initially intended to give the Applicant a second interview but after reading the letter from his superior that the Applicant was given notice that he may be refused if he did not attend, he changed his mind and prepared a refusal letter. The Applicant asserted that the Moscow visa officer's actions amount to a failure to exercise his discretion.
[18] The Applicant cited the case of Baluyut v. Canada (Minister of Employment and Immigration), [1992] 3 F.C.J. No. 717 (T.D.) (QL) in support of his submission that the Moscow visa officer failed to exercise his discretion by simply following the instructions of his supervisor in making his decision. However, Baluyut, supra, can be distinguished from the present case in an important way. In Baluyut, supra, the visa officer asked his supervisor what action should be taken and then simply carried out the instructions of his supervisor. In this case, however, the letter to the Applicant warning him that his failure to attend the interview may result in the refusal of his application was not an instruction or direction made to the Moscow visa officer to refuse the application.
[19] The Moscow visa officer was entitled to consider the letter from his superior as evidence going to the entire context of the case. He also exercised his own discretion by waiting to hear from the Applicant with a further explanation as to why he did not attend. The Applicant never contacted the Moscow visa office after the letter of February 24, 2000. Therefore, it is my view that the Moscow visa officer did exercise his discretion in this case and that no error was made.
[20] In conclusion, I would dismiss this application for judicial review. No question for certification was submitted.
ORDER
THIS COURT ORDERS that:
1. this application for judicial review is dismissed; and
2. there is no question for certification.
"Judith A. Snider"
JUDGE
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-2344-00
STYLE OF CAUSE: VLADIMIR PONOMARENKO v MCI
DATE OF HEARING: February 27, 2003
PLACE OF HEARING: Toronto, Ontario.
APPEARANCES BY: Ms. Sabrina Tozzi
For the Applicant
Ms. Neeta Logsetty
For the Respondent
SOLICITORS OF RECORD: Mr. Stephen Green
Green & Spiegel
121 King Street West
Suite 2200, P.O. Box 114
Toronto, ON M5H 3T9
Tel:416-862-7880
Fax:416-862-1698
For the Applicant
Ms. Lori Hendricks
Department of Justice
130 King Street West, Suite 3400, Box 36
Toronto, Ontario
M5X 1K6
Tel:416-972-9263
Fax:416-954-8982
For the Respondent