Belousyuk v. Canada (Minister of Citizenship and Immigration), 2004 FC 746

Date: 20040520

Docket: IMM-3125-02

Citation: 2004 FC 746

Ottawa, Ontario, this 20^th day of May, 2004

PRESENT: THE HONOURABLE JOHANNE GAUTHIER

BETWEEN:

                                                      VOLODIMIR BELOUSYUK

                                                                                                                                            Applicant

                                                                           and

                                                            THE MINISTER OF

CITIZENSHIP AND IMMIGRATION

Respondent

                                            REASONS FOR ORDER AND ORDER

[1]                Mr. Belousyuk seeks judicial review of the decision of a visa officer who refused his application for permanent resident status on the basis that: (i) he misrepresented a material fact contrary to subsection 9(3) of the Immigration Act, R.S.C. 1985, c. I-2 (the "Act"), and (ii) he failed to comply with the visa officer's request for additional documentation (subsection 9(4) of the "Act", relevant enactments are set out in the attached Annex).

[2]                The applicant is a citizen of Ukraine who applied for his Canadian permanent resident status in March 1997 and sought to be assessed for the intended occupation of nuclear engineer (NOC 2157110). Between 1997 and June 2002, he was interviewed on three occasions and had numerous exchanges of correspondence with the Canadian Embassy in Ukraine, particularly with respect to his recent experience as a nuclear engineer.

[3]                Until he retired from the Soviet Navy in 1994, Mr. Belousyuk was a senior nuclear engineer of about fifteen years experience. He claims that since then he has worked as an independent consultant and as an engineering expert in the field of nuclear energy equipment. The visa officer was not satisfied with the documentation he had submitted in respect of his employment record after 1994, particularly because it consisted mainly of a letter signed by his father-in-law from a company called Zimac and which he had allegedly never mentioned in his previous interviews. Thus, on July 11, 2001, the visa officer sent him a fairness letter outlining her concerns with his application. The officer gave him a certain period of time to produce corroborating documentation in the form of contracts or correspondence emanating directly from the clients for whom Zimac would have used his services.

[4]                In answer to this request, Mr. Belousyuk first submitted a letter dated August 1, 2001, written in Russian, outlining his experience and including a letter from a Canadian communication company inviting him to become a partner. On September 6, 2001, the applicant submitted an English version of the August 1, 2001 letter. Then, on October 30, 2001, he submitted a faxed copy of an employment reference letter dated October 25, 2001, from Kharkov Scientific Research Institute "Energoproekt", which indicated that he had worked, during the 1994-98 period as an independent consultant in technical nuclear documentation. This letter was signed by Mr. Almakaev identified as the chairman of direction, and bearing the number 22126/347.

[5]                On November 13, 2001, Mr. Belousyuk resubmitted a photocopy of that letter with a request for an update. He submitted a second similar request on February 11, 2002. Given that the original of this letter had not been submitted, the program manager and First Secretary of Immigration at the Embassy now in charged of this file, requested that its authencity be verified with the company Energoproekt. It appears, from the CAIPS notes and the affidavit of the program manager who made the decision under review that on April 12, 2002 she received a written confirmation signed by the head of the personnel department and by the chairman of direction, Mr. Almakaev, that indeed the applicant had never been employed with Energoprokt as an independent consultant and that the original letter of reference dated October 25, 2001, and bearing number 22126/347, had been issued by mistake.

[6]                On April 17, 2002, the applicant was made aware of the information received from Energoproekt and of the fact that he had not submitted any acceptable evidence in answer to the visa officer's letter of July 11, 2001. Mr. Belousyuk was informed that his file would be left opened for 30 days in order to give him an opportunity to respond to this information.

[7]                By letter dated April 24, 2002, Mr. Belousyuk submitted various documents which, in fact for the majority, had already been produced before the July 11, 2001 fairness letter was sent to him. In his covering letter, he stated that his work at Energoproekt was classified and not to be made public, that the information given to the Embassy by that company was wrong and that the clerk who allegedly gave this information to the Embassy had been fired.

[8]                Again, the veracity of this statement was verified with Energoproekt. The head of human resources was re-contacted and he confirmed that he was still working with the company and that nobody had been fired.

[9]                By letter dated June 3, 2002, the applicant was informed that his application was rejected.

[10]            Mr. Belousyuk argues that he never intentionally provided any false information to the visa officer and that she wrongly accused him of fraud. He also submits that the documentation produced with his letter of April 24, 2002 was sufficient to establish his recent experience because among other things, there was no reason to doubt the credibility of the Zimac's letter. This evidence was ignored for, as mentioned in the affidavit of the program manager, she did not assess that documentation once it had been confirmed that the clerk had not been fired. In that respect, he also states that he should have been assessed on the basis of his experience as of March 1997. Thus, the fact that he may not have established that he had some more recent experience was irrelevant because this concern was posterior to the lock-in date of his application.

Analysis

[11]            The standard of review applicable to the visa officer's decision in this case is reasonableness simpliciter meaning that after a probing examination of the evidence on file, I must determine if the reasons given by the officer support her conclusion.

[12]            It is trite law that the burden of proof was on the applicant; he had to convince the visa officer that his application was in conformity with the Act and the regulations issued under it. In that respect, the Court can only consider the evidence that was before the decision-maker when she made the decision. Therefore, the Court will not review any new evidence produced by Mr. Belousyuk.

(a) The violation of section 9(3) of the Act

[13]            Mr. Belousyuk argues that the misunderstanding with respect to his work with Energoproekt arose from the fact that the Embassy contacted the head of human resources who deals with regular employees of the company and is not involved with independent consultants. He claims that the letter of April 12, 2002, which is in Russian only, does not say that he never worked as an independent consultant but only that he was never an employee. The Embassy simply asked the wrong question.

[14]            No translation was provided for this letter. As mentioned, the program manager-visa officer states in her affidavit that it confirms that the applicant never worked as an independent consultant. This issue is not addressed in Mr. Belousyuk's affidavit. Also, although the Court cannot read the letter of April 12, 2002, it is evident that the second paragraph refers to the October 25, 2001 letter, by date and reference number. According to the affidavit of the program manager it says that this letter was issued by mistake. This evidence was not contradicted.

[15]            Therefore, whatever interpretation one could give to the words used to describe the relationship between Mr. Belousyuk and Energoproekt in the first paragraph, it is clear that the company disavowed the letter of October 25, 2001.

[16]            Moreover, Mr. Belousyuk states that he was told by Energoprokt that the clerk who had divulged information about him would likely be fired. But that unknown to him, the company simply never acted on this and nobody was actually fired. However, the applicant's letter of April 24, 2002, clearly states that the clerk had been fired. A breach of subsection 9(3) of the Act does not require proof of intent.

[17]            The Court is satisfied that it was reasonable for the visa officer to find that there had been a breach of the subsection 9(3) of the Act. Even if such violation does not have the automatic effect of making an applicant inadmissible, it may justify a decision not to grant a visa if the breach relates to a material fact. (Kang v. Canada (Minister of Employment and Immigration), [1981], 2 F.C. 807 (QL) (F.C.A.); Sharief v. Canada (Minister of Citizenship and Immigration), 2003 FCT 278, [2003] F.C.J. No. 386 (QL) (T.D.)). In this, I am satisfied that such violation by itself would have been sufficient to justify the rejection of Mr. Belousyuk's application. The letter of Energoproetk was filed in answer to a specific request by the visa officer and was very relevant to his experience, a matter which is material to his admission. I do not accept Mr. Belousyuk's argument that his recent experience, as described in the Energoprotk letter, was not relevant because of his lock-in date.

[18]            This expression "lock-in date" is not found in the Act or in the regulations issued thereunder. It was only described in the former Immigration Manual - Overseas Processing, Chapter OP1. I understand that when an application was locked in, it meant that the law that was in effect on that date would apply when the application was ultimately decided thus, for example, a decrease in occupational demand points would not affect the application of a skilled worker filed before the date of such increase.

[19]            However, this did not mean that the visa officer was not entitled to consider the facts which occurred after the lock-in date. In fact, it has been held by this Court that the visa officer must evaluate the application for permanent residence on the basis of the facts as they stand at the time of the exercise of that discretion and that this approach could also work to an applicant's advantage where he or she manages to upgrade skills or secure a viable job offer. (Lau v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 81 (QL) (T.D.); Shabashkevich v. Canada (Minister of Citizenship and Immigration) 2003 FCT 361, [2003] F.C.J. No. 510 (QL) (T.D.)).

(b) Violation of subsection 9(4) of the Act

[20]            Mr. Belousyuk argues that the visa officer ignored the Canadian Communication company's letter inviting him as a partner. The Court notes that this had nothing to do with his experience as a nuclear engineer. If this is what Mr. Belousyuk intended to do in Canada, it appears in fact to corroborate the visa officer's views as expressed in her letter of July 11, 2001, that because he had not worked in the field for some years, he may no longer be employable as a nuclear engineer, a highly technical and fast changing occupation.

[21]            With respect to the other documents attached to his letter of April 24, 2002, which the program manager did not further review, the Court notes that most of them are in Russian only. The documents that are translated do not satisfy me that the visa officer's conclusion was unreasonable. In fact, these documents refer to the delivery of diesel generators, and to the supply of electrical power for a national electricity company. It is not clear how these relate to the applicant's work as a nuclear engineer. Also, as mentioned, this documentation was not new. Most, if not all of it, had been provided to the visa officer prior to the July 11, 2001 letter and was found to be insufficient. With respect to the letter from Zimac, the Court finds that it was not unreasonable for the visa officer to conclude that she needed corroboration for the reasons stated in the letter of July 11, 2001.

[22]            The parties did not submit any question for certification and the Court finds that this case turns on its own facts.

                                                                       ORDER

THE COURT ORDERS that:

The application is dismissed.

                                                                                                                               "Johanne Gauthier"           

                                                                                                                                                   Judge                   

                                                                         Annex

                                                             FEDERAL COURT

                                                      SOLICITORS OF RECORD

DOCKET:                                          IMM-3125-02

STYLE OF CAUSE:                          Volodimir Belousyuk v. The Minister of Citizenship and Immigration

PLACE OF HEARING:                    Toronto, Ontario

DATE OF HEARING:                      March 15, 2004

REASONS FOR ORDER

AND ORDER BY:                           The Honourable Johanne Gauthier

DATED:                                             May 20, 2004

APPEARANCES:

Ms. Inna Kogan                                                                        FOR THE APPLICANT

Ms. Ann Margaret Oberst                                                         FOR THE RESPONDENT

SOLICITORS OF RECORD:

CECIL L. ROTENBERG                                                          FOR THE APPLICANT

Toronto, Ontario

MORRIS ROSENBERG                                                          FOR THE RESPONDENT

Deputy Attorney General of Canada