Date: 20030717
Docket: IMM-4306-01
Citation: 2003 FC 893
OTTAWA, ONTARIO, THIS 17th DAY OF JULY 2003
Present: THE HONOURABLE MR. JUSTICE MARTINEAU
BETWEEN:
VADIM KOUHTA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The applicant seeks judicial review of the decision of Iwona Dabrowska-Duda (the "visa officer"), dated July 27, 2001, wherein she refused the applicant's application for permanent residence in Canada.
[2] The applicant is a citizen of the Republic of Belarus. He filed an application for Canadian permanent residence in the Independent category on March 16, 1998. The application was based on the applicant's experience, qualifications, and intended occupation of Electrical and Electronics Engineer, Design and Development (NOC 2133.0).
[3] The application was considered pursuant to the Immigration Regulations, 1978, SOR/78-172, as amended (the "Regulations"). After conducting the interview with the applicant and assessing his application, the visa officer granted him the following points:
Age 10
Occupational Factor 05
Education and Training Factor 17
Experience 00
A.R.E. 00
Demographic Factor 08
Education 15
English 07
French 00
Bonus 00
Suitability 04
---
Total 66
[4] Since the applicant lacked the required 70 points under the Regulations, the visa officer refused to grant the applicant a visa.
[5] The visa officer did not award points for the employment experience as an Electronics Engineer because she doubted the work experience claimed by the applicant, including the veracity and the authenticity of his work references. The visa officer stated in her letter of refusal that:
During your interview, you stated that from 1993 until 1998 you were employed by the Sedma Scientific and Research Commercial Enterprise located in Minsk, Belarus, and you provided your work book as evidence of your employment. On 15 May 2001, an attempt was made to verify your claimed work experience by telephoning this enterprise. At that time we were advised by a disinterested third party that it was a private apartment belonging to one of Sedma's co-founders and that there was no office located there. This information led me to doubt the accuracy and authenticity of work references provided by you.
I advised you of my concerns in the letter dated 25 June 2001 and gave you opportunity to provide additional information regarding authenticity of your employment references. You submitted documents that included a letter signed by the Sedma's Director, Mr Sechko who explained that the company's location at Y. Mavra Street was fictitious. When I asked you about the proper address of Sedma company you mentioned Partizanskiy Street. Only after my comments that according to the information submitted, the company was located under a different address, you agreed that you made a mistake.
...
Accordingly, I am doubtful that you have the work experience you claimed at your interview and in your application form. Furthermore, I doubt the veracity and authenticity of the work reference provided by you and consequently, I was unable to award you any units of assessment for the experience factor.
...
As you are unable to meet minimum requirements for selection in the assisted relative category of applicants, I am, pursuant to sections 6(1) and 9(2) of the Immigration Act unable to issue an immigrant visa to you and I, accordingly, had no choice to refuse your application.
[6] Before this Court, the applicant argues that in his letter, Mr. Sechko explained that Sedma was officially registered in the office of a housing construction cooperative located at 28 Y. Mavra Street, which was allowed by the legislation in force in 1991. Because this office had no postal address, the receipt of business correspondence was encumbered. Therefore, the applicant submits that the visa officer's conclusion, that the company's location at Y. Mavra Street was "fictitious", is perverse and capricious.
[7] The applicant also takes issue with the failure of the visa officer to acknowledge, in her decision, the applicant's work experience as an Electronics Engineer at Radel Scientific and Technical Centre. Therefore, it is submitted that the visa officer erred by ignoring this evidence when she awarded zero units of assessment for the applicant's experience.
[8] It flows from the words used by the visa officer in her refusal letter that she simply did not believe the applicant had the work experience he claimed. The following entries in the CAIPS notes made on November 16, 2000 and July 26, 2001 highlight this general negative assessment:
When questioned why did he lie to me about his stay in USA he cannot answer. Now admits he was there three times.
The only concerns I have is with subj's credibility - did not want to admit how many times did he visit USA. First claimed he was there on official research and EA, yet a photocopy of EA was issued in 1996 for 5 months only listing him as a domestic servant. Also claimed his company Sedma sent him to USA three times and each time paid all his expenses (1000 USD per month - cheques)
Now admits he has a brother in USA and he lived with his brother during his stay in USA. [...] At the end of the interview subject apologizes that he lied to me. He stayed with his brother working illegally in the USA - was afraid to tell the truth about his illegal work in USA.
16-NOV-2000
The following documents were submitted by Mr Kuhta in response to my letter of 25 June questioning credibility and authenticity of his employment reference issued by the Sedma Company:
- PC X 2 from Belarus
- Original BC for Mixima Kouhta;
- A letter of reference from Scientific and Technical Centre Radel confirming his work there since 1998 where he was transferred from Sedma;
- A certificate of Sedma State Registration, date of registration: 31 may 1993. Address: Minsk, YA.MAVRA STREET 28;
- Extract from the Status of Sedma's Enlisting. Among others Vladimir Beloliptsev as one of the company's participants. Home address of Mr. Beloliptsev is the same as Sedma's address i.e. Minsk, YA.MAVRA STREET 28, APT. 45;
...
After review of the documents submitted and having heard Mr Kouhta's explanations I am not satisfied as to the applicant's credibility for the following reasons:
In his reference letter submited and dated 07 February 1998 the company's address at the letterhead still reads: APP 45, 28 Y.MAVRA STR althought the company Sedma was allegedly moved to a different location four years earlier: there is no official rental agreement between Sedma and the apartment owner Mr Beloliptsev; during a telephone conversation directed at Y MAVRA 28, APT 45 we were advised that no company was ever located there but it was confirmed that the company's president Mr Setchko was a personal friend.
26-JUL-2001
of the apartment's owner. When taking directly to Mr Kouhta, he again confirmed that Sedma company wa snever physically located at the address indicated on his reference letter. The address served mostly as a mailbox for correspondence with banks. He confirmed that Sedma wa slocated at Partizanky Street all the years he worked there (same place as the company Radel). I told him it was tsrange bacause the company Radel has had a different address, that of Skoryna Avenue. Hearing that, Mr Kouhta once again corrected himself saying that in fact he made a mistake and that proper address for Sedma was Skoryna Avenue. Advised that I am not satisfied with his explanations and that I do not find his reference from Sedma credible.
26-JUL-2001
(My emphasis) (Reproduced as is)
[9] I am satisfied that the above credibility findings were reasonably opened to the visa officer. She also noted that "it was confirmed that the company's president Mr. Sechko was a personal friend [of the applicant]".
[10] It is also clear from the CAIPS notes that the visa officer specifically considered the letter of reference from the Radel Scientific and Technical Centre. However, once she discovered that the applicant's application was supported by conflicting and contradictory documentation pertaining to his previous employment, and that, admittedly, the applicant had lied to her concerning his alleged work experience in the United States, the visa officer was under no obligation to consider and treat differently the reference from the Radel Scientific and Technical Centre Radel.
[11] Under subsection 8(1) of the Immigration Act, R.S.C. 1985, c. I-2 (the "Act"), the burden of proof entirely rests on the applicant:
| 8(1) Where a person seeks to come into Canada, the burden of proving that that person has the right to come into Canada or that his admission would not be contrary to this Act or the regulations rests on that person.
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8. (1) Il incombe à quiconque cherche à entrer au Canada de prouver qu'il en a le droit ou que le fait d'y être admis ne contreviendrait pas à la présente loi ni à ses règlements.
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[12] Moreover, subsection 9(3) of the Act requires the applicant to answer all questions truthfully:
| (3) Every person 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.
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(3) Toute personne doit répondre franchement aux questions de l'agent des visas et produire toutes les pièces qu'exige celui-ci pour établir que son admission ne contreviendrait pas à la présente loi ni à ses règlements.
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[13] The assessment of credibility of an applicant is entirely a matter for the visa officer's assessment and there is no obligation to perform further inquiries if there is a gap in the evidence submitted by an applicant (see Zhang v. Canada (Minister of Citizenship and Immigration) (1999), 168 F.T.R. 111, at para. 7); and Ahmad v. Canada (Minister of Citizenship and Immigration) (1998), 153 F.T.R. 247 at para. 3).
[14] The standard of review of the statutory discretion vested in the visa officer is the highest one: that is, where the discretion has been exercised in good faith and in a fair manner, the Court should not intervene unless it is shown that the visa officer's decision is patently unreasonable or otherwise contrary to law (see Lim v. Canada (Minister of Employment and Immigration) (1991), 121 N.R. 241 at 243 (F.C.A.); and To v. Canada (Minister of Employment and Immigration), [1996] F.C.J. No. 696 (F.C.A)).
[15] With respect to the applicant's further submission that the points awarded for the occupational demand (5 points) is contradictory with the experience factor assessment (0 points), the visa officer said it was a "clerical mistake". In her affidavit, she states:
The Applicant received 5 units of assessment out of possible 10 for this factor. This was a clerical mistake on my part as I had already determined that I was unable to give weight to his stated work experience. As a result, pursuant to Schedule I, factor 4 (b) he should have been given zero units of assessment for the Occupational Demand factor.
[16] This is not a situation where the visa officer is defending two inconsistent positions (see Hamed v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 1157, 2002 FCT 884 at paras. 12-13; Abusalih v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No 1321, 2001 FCT 961 at para. 9; and Kapustynska v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 170, 2001 FCT 29 at para. 19). There is no contradiction. Here, the visa officer acknowledged her error. It is clear that no points should have been given for the occupational demand factor. This error is not fatal since it worked in favour of the applicant. Instead of having been granted 66 points, the applicant should have been awarded 61 points. As I have already found that the visa officer's decision not to give any weight to the applicant's stated work experience is reasonable in the circumstances, any error with respect to the occupational factor is not, in any event, material. The visa officer's previous valid finding (zero (0) units of assessment for the experience factor) precludes in itself the issuance of an immigration visa pursuant to subsection 11(1) of the Regulations.
[17] In conclusion, despite the able argument of applicant's counsel, I find that the visa officer did not make a material error warranting the Court's intervention. Counsel submits that a question of general importance might be raised in view of the fact that the Regulations have been repealed, and the Immigration and Refugee Protection Act, S.C. 2001, c. 27 and the Immigration
and Refugee Protection Regulations, SOR/2002-227 are now in force. However, in view of the conclusion I have reached above, any such question, which strictly relates to the remedy that ought to be granted by the Court if the application is granted, becomes academic. Accordingly, no question of general importance will be certified.
ORDER
THIS COURT ORDERS that the application for judicial review of the decision of the visa officer at the Canadian High Commission in Warsaw, dated July 27, 2001, wherein she refused the applicant's application for permanent residence in Canada, be dismissed. No question of general importance will be certified.
"Luc Martineau"
Judge
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-4306-01
STYLE OF CAUSE: VADIM KOUKHTA v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: JUNE 25, 2003
REASONS FOR ORDER
AND ORDER: THE HONOURABLE MR. JUSTICE MARTINEAU
DATED: JULY 17, 2003
APPEARANCES:
MICHAEL F. BATTISTA FOR THE APPLICANT
KAREENA WILDING FOR THE RESPONDENT
SOLICITORS OF RECORD:
MICHAEL F. BATTISTA FOR THE APPLICANT
TORONTO, ONTARIO
MORRIS ROSENBERG FOR THE RESPONDENT
TORONTO, ONTARIO
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