Date: 20020806
Docket: IMM-583-01
Neutral citation: 2002 FCT 841
BETWEEN:
LUBOVA BATMANOVA
Applicant
- and -
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
Introduction
[1] These reasons arise out of an application for judicial review of a decision of a Designated Immigration Officer (the "Officer") at the Canadian High Commission in London, England wherein the Officer rejected the application for permanent residence in Canada made by the applicant's spouse. The decision under review is dated the 21st of December, 2000.
[2] The applicant was listed as a dependant of her spouse on his application for permanent residence. I have some doubts about the applicant's standing to bring this application rather than an application for judicial review of the failure of the respondent to address her own application for permanent residence in Canada which was filed simultaneously with that of her spouse. However, as this issue was neither raised by counsel for the respondent nor pursued at hearing when I expressed my concern, I will not address it further.
Background
[3] The applicant and her spouse are apparently residents of Latvia. In the Officer's affidavit, the applicant's spouse is described as "stateless". Each applied for permanent residence in Canada, in the independent category. The applicant's spouse indicated his intended occupation in Canada as "computer programmer". The applicant indicated her intended occupation in Canada as "programmer/analyst". The two applications were transmitted together to the Canadian High Commission in London under the cover of a single letter originating from immigration counsellors in Canada indicating that each was applying as a "Principal Applicant". In each case, the Principal Applicant claimed his or her spouse and their two children as dependants. One application fee was paid.
[4] The applicant's spouse was invited to an interview. The applicant, in her affidavit filed in this matter, attests:
Some time in the middle of November, 2000 we were advised by our representative Jane Katkova of the interview date, scheduled by the Canadian High Commission for my husband for December 7, 2000; I was requested to accompany my husband to the interview as accompanying my husband [sic] dependant family member over 19 years old.
On December 7, 2000 we attended at the personal interview in Riga, Latvia with the designated immigration officer of the Canadian High Commission in London J P Montgomery.
During the course of the interview it was clearly indicated by me to the interviewing officer, that I was applying for permanent residence in Canada as a Principal Applicant ... [Emphasis added.]
[5] By contrast, in reply to the last-quoted assertion from the applicant's affidavit, the Officer, in her affidavit filed in this matter, attested:
... this Applicant never indicated to me that she was applying as the Principal Applicant.
The Applicant ... had opportunity during the interview to indicate that she was to be assessed as the Principal Applicant. However, neither she nor her husband (who also had the option to indicate as such) requested that I do so.
[6] Neither the applicant nor the Officer was cross examined on their respective affidavits.
[7] The decision letter rejecting the applicant's spouse's application for permanent residence in Canada, the decision here under review, is dated two weeks following the date of the interview.
The Issues
[8] The issues on this application for judicial review are identified in the memorandum of fact and law filed on behalf of the applicant in the following terms:
Did the Visa Officer err because she did not assess the Applicant ... as a Principal Applicant despite the fact that it was obvious from the material submitted by the Applicant that this was her specific request?
Did the Visa Officer breach her duty of fairness to the Applicant because during the course of the interview [the Visa Officer was aware that] the Applicant ... was applying for permanent residence in Canada as a Principal Applicant in the occupation of Computer Programmer, but did not fully carry out [an appropriate assessment of the Applicant's application as a Principal Applicant]? Further once having asked that both adult Applicants be assessed as Principal Applicants, [did the] duty of fairness require the Visa Officer to carry out the assessments as requested?
Analysis
[9] I am satisfied that both issue questions should be answered in the negative.
[10] As previously noted, the affidavits of the applicant and of the Officer are in conflict as to whether the Officer was specifically requested, at interview, to assess the Applicant as a Principal Applicant. Also as previously noted, neither the applicant nor the Officer was cross examined. In Hannan v. Canada (Minister of Citizenship and Immigration)[1] Madam Justice Reed, commenting on a similar conflict in sworn testimony, wrote:
When this kind of difference arises, and particularly when the respective description must be evaluated on the basis of cross-examination transcripts, one looks for evidence that pre-dates the dispute between the parties, to see if there is something that supports one or the other side's version of what occurred.
I am satisfied that Madam Justice Reed's comments apply, with even greater force, where one does not have the benefit of cross-examination transcripts to aid in evaluation of the conflict.
[11] I am satisfied that the Officer's version of events is more consistent with the CAIPS notes of the interview that appear in the Tribunal Record. The Officer attests in her affidavit:
I have reviewed the CAIPS notes I made in this matter which are contained in the Certified Tribunal Record and I confirm that they truthfully and accurately reflect my recollection of the Application and the interview and my concerns and reasoning at that time. Entries in the CAIPS system are irreversible once they are entered, and are followed by the date of the entry and the initials of the person making the entry.
[12] No equivalent support with respect to the position of the applicant was produced before me.
[13] I prefer the version of events attested to by the Officer. While the materials submitted by the applicant made it evident that she, like her spouse, was applying as a Principal Applicant, the applicant was aware that the interview she attended was in relation to her spouse's application and that she was attending as a dependant. In the absence of specific urging by the applicant or her spouse or both at the interview that the interview be extended to consideration of the applicant's application as a Principal Applicant, I am satisfied that the Officer was under no obligation to so extend the scope of the interview. Indeed, even if she had been urged to, I am satisfied that the discretion as to whether to do so or not would have remained with the Officer. It would have been entirely open to her to reserve to a separate interview consideration of the applicant's application as a Principal Applicant.
[14] I am satisfied that the foregoing very brief analysis is sufficient to respond to both issue questions and, as I have previously indicated, to support negative answers to both questions.
[15] Counsel for the applicant urged that I should follow the decision of my colleague Mr. Justice O'Keefe in Rozario v. Canada (Minister of Citizenship and Immigration)[2]. I am satisfied that that decision is distinguishable on its facts. At paragraphs 13 and 14 of his reasons, Mr. Justice O'Keefe wrote in part:
This Court has held that once a visa officer undertakes the responsibility of assessing an immigrant, procedural fairness dictates that she make a "thorough evaluation and not dispose of it summarily": ...
I agree with that approach. ... [Citation omitted.]
Mr. Justice O'Keefe went on to find that, on the facts before him, the officer had undertaken an assessment of a spouse, in the context of two applications by spouses equivalent to the context here, and had not carried out a thorough assessment. In the result, he allowed the application for judicial review that was before him. On the material before me, I find that no assessment of the applicant's application as a Principal Applicant was ever undertaken by the Officer whose decision is here under review. Thus, the question of the thoroughness of the Officer's evaluation does not arise.
Conclusion
[16] In the result, this application for judicial review will be dismissed.
Certification of a Question
[17] Counsel for the applicant urged certification of the following question:
Does section 8(1) of theImmigration Regulations bar a Visa Officer from assessing both the immigrant and the immigrant's spouse, where the immigrant has specifically requested that the Visa Officer assess both the immigrant and the immigrant's spouse?
Counsel for the respondent urged against certification of a question. The question posed for certification on behalf of the applicant simply does not arise on the facts of this matter, as I have determined them. There certainly was no "specific request" made to the Officer during the interview and any "specific request" implicit in the applications and covering materials originally filed was capable of being dealt with at separate interviews. Certainly the letter convoking the interview made it abundantly clear that the interview scheduled was in relation to the applicant's spouse's application, and not in relation to the applicant's own application.
[18] No question will be certified.
"Frederick E. Gibson"
J.F.C.C.
Toronto, Ontario
August 6, 2002
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-583-01
STYLE OF CAUSE: LUBOVA BATMANOVA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: THURSDAY, AUGUST 1, 2002
REASONS FOR ORDER BY: GIBSON J.
DATED: TUESDAY, AUGUST 6, 2002
APPEARANCES BY: Mr. Hart Kaminker
For the Applicant
Mr. Brad Gotkin
For the Respondent
SOLICITORS OF RECORD: Kranc & Associates
Barristers & Solicitors
425 University Avenue
Suite 500
Toronto, Ontario
M5G 1T6
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date:20020806
Docket: IMM-583-01
BETWEEN:
LUBOVA BATMANOVA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER