Date: 19981123
Docket: IMM-989-98
BETWEEN:
YOULIA ALEXANDROVNA KENIG
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
GIBSON J.
[1] These reasons arise out of an application for judicial review of a decision of a Visa Officer at the Canadian Embassy in Moscow denying the applicant's application for a visa permitting her to come to Canada as a visitor. The Visa Officer's decision was made the 5th of February, 1998 immediately following an interview with the applicant. No written reasons for the decision were provided.
[2] The applicant is a citizen of Kazakhstan and a resident of the city Pavlodar in that country. She resides with her mother and brother. The applicant established an E-mail correspondence relationship with a single male dentist in Canada (the "sponsor"). Her sponsor invited her to visit with he and his mother in Canada, entirely at his expense. This invitation gave rise to four applications by the applicant for a visitor's visa, all within a period of one year, and culminating with the application here under review. The applicant has never travelled outside the Commonwealth of Independent States that comprised the former Soviet Union. The applicant attests that, at the time of the decision under review, she had been steadily employed as a nurse for some three years.
[3] Given the failure of the applicant's three previous applications, the applicant, her sponsor and their legal advisor proposed extensive safeguards in an attempt to satisfy the Visa Officer that the applicant would return to Kazakhstan following her visit. The applicant proposed to provide a statutory declaration of intent. The sponsor proposed to meet the applicant at her port of entry to Canada and to offer to post security that would be forfeited if the applicant failed to leave Canada as scheduled. The legal advisor to the applicant and her sponsor provided extensive submissions and documentation to support the application.
[4] "Visitor" is defined in subsection 2(1) of the Immigration Act1 in the following terms:
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"visitor" means a person who is lawfully in Canada or seeks to come into Canada for a temporary purpose, other than a person who is |
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(c) a person in possession of a permit , or |
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(d) an immigrant authorized to come into Canada pursuant to paragraph 14(2)(b), 23(1)(b) or 32(3)(b). |
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[5] Subsection 9(2.1) of the Immigration Act provides as follows:
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(2.1) An application for a visitor's visa shall be assessed by a visa officer for the purpose of determining whether the person making the application and every accompanying dependant of that person appear to be persons who may be granted entry. |
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[6] Subsection 13(2) of the Immigration Regulations, 19782 provides as follows:
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(2) A visa officer may issue a visitor's visa to any person who meets the requirements of the Act and these Regulations if that person establishes to the satisfaction of the visa officer that he will be able |
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(a) to return to the country from which he seeks to come to Canada; or |
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(b) to go from Canada to some other country. |
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[7] No failure on the part of the applicant to meet the requirements of the Immigration Act and the Immigration Regulations, 1978 was alleged on the facts of this matter. Rather, the issue was whether the applicant would return to Kazakhstan once in Canada.
[8] In De La Cruz et al. v. Canada (Minister of Employment and Immigration) et al.3, Associate Chief Justice Jerome wrote:
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... the issuance of a visitor's visa is a discretionary decision. The duty of the visa officer is to accord proper consideration to any application, but he is not required to issue a visitor's visa unless he is convinced the applicant fulfils the legislative requirements. |
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[9] That the onus was on the applicant on her application for her visitor's visa and that the forgoing quotation represents an accurate statement of the authority and responsibility of a visa officer was not in question before me. Rather, the issue was whether the visa officer had accorded "proper consideration" to the applicant's application or, put another way, whether he fettered his discretion in reaching the decision that he did.
[10] In his Affidavit filed in this matter, the Visa Officer attested in part:
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2- As part of my duties as Second Secretary at the Embassy of Canada in Moscow, I assess applications for visitor's visa [sic] made by prospective tourists to Canada. I analyze the documentation provided and interview the applicants if necessary to determine whether they have sufficient ties to their home country to be considered bona fide visitors. ... |
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8- I told the applicant that I was not convinced that she had enough incentives to return to Kazakhstan ... |
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9- To conclude, I told Ms. Kenig that I was not satisfied that she had strong ties to Kazakhstan. ... |
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10- I was not satisfied that the applicant was not an intended immigrant, ... . |
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[11] On the evidence before me and on the basis of representations of counsel, I am satisfied that the Visa Officer improperly fettered his discretion and in so doing committed a reviewable error.
[12] The applicant provided the Visa Officer with substantial support for the proposition that she had no intention of becoming an immigrant. She provided substantial evidence of strong support for her visit from more than one Canadian citizen or permanent resident and, in the terms of subsection 13(2) of the Immigration Regulations, 1978, that she would "...be able to return to the country from which [she sought] to come to Canada."
[13] While an applicant's ties to her home country are a factor to be considered, the Visa Officer's affidavit herein would appear to bare out a conclusion that those ties, in the case of this applicant, were the sole factor that he took into account to the exclusion of substantial evidence as to the temporary nature of the applicant's proposed visit. The focus of the Visa Officer on the applicant's ties to Kazakhstan and his failure to effectively take into account even all of the evidence in that regard, essentially to the exclusion of consideration of the other evidence that was before him, amounted to a fettering of discretion that constituted a reviewable error.
[14] In the result, this application for judicial review will be allowed. Neither counsel recommended certification of a question. No question will be certified.
[15] I wish to note two other matters arising out of this application.
[16] The Visa Officer attested in his Affidavit that he read and reviewed supporting documentation submitted by the applicant and her representative in support of earlier applications for a visitor's visa. That supporting documentation appears not to have been made a part of the tribunal record filed in this matter. In light of the fact that the Visa Officer attests that he read and reviewed that documentation, it should have constituted part of the tribunal record.
[17] Additionally, the material before the Court indicates that, during the course of the interview between the Visa Officer and the applicant, one or other of the parties to the interview expressed a view that the application was to be rejected because the applicant is "young, single and female". I have disregarded the evidence regarding such an allegation because it is clearly conflicting. In the result, I have given no consideration to argument reflected in the applicant's memorandum as to discrimination against the applicant on the basis of age, sex and marital status.
"Frederick E. Gibson"
Judge
Toronto, Ontario
November 23, 1998
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-989-98
| STYLE OF CAUSE: YOULIA ALEXANDROVNA KENIG |
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
DATE OF HEARING: THURSDAY, NOVEMBER 19, 1998
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: GIBSON J.
DATED: MONDAY, NOVEMBER 23, 1998
APPEARANCES:
Ms. Mary K. E. Joseph
For the Applicant
Mr. Toby Hoffman
For the Respondent
SOLICITORS OF RECORD:
Mary K.E. Joseph
For the Applicant
Morris Rosenberg
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 19981123
Docket: IMM-989-98
Between:
| YOULIA ALEXANDROVNA KENIG |
Applicant
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
REASONS FOR ORDER
__________________
1 R.S.C. 1985, c.I-2.
2 S.O.R/78-172 (as amended).
3 (1989) 7 Imm.L.R. (2d) 75 at 79 (F.C.T.D.).
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