Date: 20030808
Docket: IMM-2031-01
Citation: 2003 FC 967
Toronto, Ontario, this 8th day of August, 2003
PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE
BETWEEN:
OLEXANDR BOJCHUK
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
O'KEEFE J.
[1] This is an application for judicial review of the decision of a visa officer dated March 12, 2001. In refusing the applicant's application for permanent residence, the visa officer found that the applicant had not complied with subsection 9(3) of the Immigration Act, R.S.C. 1985, c. I-2. In addition, the visa officer also found that the applicant was a member of the inadmissible class of persons described in subparagraph 19(2)(a.1)(ii) of the Act.
[2] The applicant who is a citizen of the Ukraine, submitted an application for permanent residence in Canada under the independent category.
[3] In his application, the applicant listed his job experience as follows:
January 1993 - May 1997 Firm "Amius" as a programmer
May 1997 - August 1998 Institut de Traduiseurs as a programmer
September 1998 - To date of application Firm Torgmach as an engineer/programmer
[4] The applicant had opened his immigration file for the province of Quebec in November 1997 and in August 1998, he successfully passed the selection interview for the province of Quebec.
[5] The refusal letter from the visa officer read as follows:
Dear Mr. Bojchuk,
This refers to your application for permanent residence in Canada. I have now reviewed all of the information related to your application.
I regret to advise that your application has been refused. You are, in my opinion, a member of the inadmissible class of persons described in Section 9(3) of the Immigration Act which states that every person applying to enter Canada "shall answer truthfully all questions put to that person by a visa officer and shall produce such documentation as may be required by the visa officer for the purpose of establishing that his admission would not be contrary to this Act or the Regulations. In addition, you are unable to comply with sections 8, 9 and 11 of the Regulations as you do not comply with our selection standards.
On your application, you indicated that you were working as a programmer in the Kiev Institute of Translators and Interpreters from May, 1997 till September, 1998. You also submitted a reference letter from the above named institute signed by Mr. Dravert in support of your experience. The letter contained the registration number of document according to which you were dismissed from the Institute of Interpreters (#44 of 31 August 1998). We were advised that in fact you never worked in the mentioned institute. I wrote you a letter on 30 November 1999 asking to explain the discrepancies. In your reply of 14 December 1999 you stated that the reason that the Institute of Translators and Interpreters cannot prove the fact of your employment there is that after the Institute was divided into the Institute of Interpreters and International Institute of Linguistics and Management, all the documents were taken to the last one. Once again we confirmed with Mr. Akulov, rector of the Institute of Interpreters and with Mr. Skorokhodko, rector of the Institute of Linguistics and Management, that all the documents from the personnel department remained in the Institute of Interpreters and they have not [sic] record of your employment there. Also you submitted your original work book, according to which you were hired to the above mentioned institute for the position of the programmer and were dismissed from the position on 04 September 1998 according to the registration order # 89 (reference letter stated order #44 of 31 August 1998). You could not explain this discrepancy in your reference letter and your workbook.
I can now conclude that you have misrepresented your working experience on your application and submitted several altered documents in support of your working experience in the Institute of Translators and Interpreters.
As you submitted false information, your actions are in contravention of section 9(3) of the Immigration Act which states that you are required to answer truthfully to requests for information.
Also, as you have submitted fraudulent documents at the Canadian Embassy, you have contravened section 194 of the Criminal Code of Ukraine. As it is a criminal offence in both Ukraine and Canada to use fraudulent documents to defraud someone, you are a member of the inadmissible class of persons described in section 19(2)(a.1)(ii) of the Immigration Act of Canada. You are therefore inadmissible to Canada either as a visitor or immigrant. You may apply for rehabilitation after five years.
[6] This is the judicial review of the visa officer's decision.
Applicant's Submissions
[7] The applicant submits that the visa officer did not take into consideration all of his explanations regarding his experience.
[8] The applicant submits that the visa officer did not conduct sufficient investigation of the facts related to his employment with the Institute of Translators or consider all evidence of his experience in that organization.
[9] The applicant also submits that the visa officer did not have reasonable grounds to find that he belonged to the inadmissible class of applicants described in subparagraph 19(2)(a.1)(ii) of the Immigration Act, supra.
Respondent's Submissions
[10] The respondent submits that the onus was on the applicant to provide sufficient credible evidence in support of his application to satisfy the visa officer that it would not be contrary to the law to issue a visa to the applicant.
[11] The respondent submits that the visa officer did not breach the principles of procedural fairness or err in law in refusing the application.
[12] The respondent submits that the visa officer's conclusions were reasonable.
[13] The respondent submits that evidence contained in the applicant's affidavit that was not before the visa officer cannot be considered by the Court.
[14] The respondent also submits that the visa officer's finding that the applicant was inadmissible to Canada pursuant to subparagraph 19(2)(a.1)(ii) of the Immigration Act, supra was reasonable and supported by the evidence.
[15] Issues
1. Did the visa officer make a reviewable error in deciding not to grant the applicant's application for permanent residence in Canada?
2. Did the visa officer have reasonable evidence for asserting that the applicant belong to the class of applicants described in subparagraph 19(2)(a.1)(ii) of the Immigration Act, supra?
[16] Relevant Statutory Provisions
Subsections 9(3) and 9(4) of the Immigration Act, supra states:
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And subparagraph 19(2)(a.1)(ii) states:
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Analysis and Decision
[17] Neither the applicant nor anyone else on the applicant's behalf was present at the hearing.
[18] Issue 1
Did the visa officer make a reviewable error in deciding not to grant the applicant's application for permanent residence in Canada?
The visa officer was not satisfied with the applicant's information with respect to his past employment experience. The applicant was given an opportunity to disabuse the visa officer of her concerns. Based on the information provided, the visa officer refused the applicant's application for permanent residence as the visa officer was of the opinion that the applicant had contravened subsection 9(3) of the Immigration Act, supra by failing to answer truthfully the request for information pertaining to his past employment. It is the role of the visa officer to assess the information provided by the applicant and determine whether the applicant meets the requirements for permanent residence. As long as the visa officer's conclusion was one of the reasonable conclusions that she could have arrived at and the visa officer did not breach the rules of procedural fairness, it is not the role of this Court to change or set aside that conclusion. I am satisfied that the visa officer did not make a reviewable error in refusing to grant the applicant's application.
[19] Issue 2
Did the visa officer have reasonable evidence for asserting that the applicant belong to the class of applicants described in subparagraph 19(2)(a.1)(ii) of the Immigration Act, supra?
With respect to the finding that the applicant was inadmissible to Canada pursuant to subparagraph 19(2)(a.1)(ii) of the Immigration Act, supra, I have reviewed the material filed and I am not satisfied that the material persuades me that the applicant is a member of this class of persons. Accordingly, I would set aside this finding.
[20] With the exception of the finding in paragraph 18, I would dismiss the application for judicial review.
ORDER
[21] IT IS ORDERED that:
1. The visa officer's finding that the applicant was a member of the inadmissible class described in subparagraph 19(2)(a.1)(ii) of the Immigration Act, supra is set aside.
2. Otherwise, the application for judicial review is dismissed.
"John A. O'Keefe"
J.F.C.
Toronto, Ontario
August 8, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2031-01
STYLE OF CAUSE: OLEXANDR BOJCHUK
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: Thursday, February 13, 2003
REASONS FOR ORDER AND ORDER OF O'KEEFE J.
APPEARANCES:
No One Appearing
FOR APPLICANT
Matina Karvellas
FOR RESPONDENT
SOLICITORS OF RECORD:
Olexandr Bojchuk
c/o David Genis
2310 - 100 Wellesley Street East
Toronto, Ontario
M4Y 1H5
FOR APPLICANT
Morris Rosenberg, Q.C.
Deputy Attorney General of Canada
FOR RESPONDENT
FEDERAL COURT OF CANADA
Date: 20030808
Docket: IMM-2031-01
BETWEEN:
OLEXANDR BOJCHUK
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER