Date: 20110126
Docket: IMM-1006-10
Citation: 2011 FC 93
Ottawa, Ontario, January 26, 2011
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
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LEONID REZNITSKI
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
I. Overview
[1]
When
is a reply, a full reply, or a final reply? If an answer is given in response
to a question without a statement to the effect that more of a reply will be forthcoming,
or that more may be forthcoming, within an allotted time period, it would be
unreasonable to assume that the answer is not final. If that was not the case,
transactions would be left hanging without conclusion, unless the end of a
prescribed time period would have been reached.
[2]
Thus,
as the counsel for the Respondent, Mr. Lorne McClenaghan, succinctly stated in
his oral pleadings: “Is an applicant’s response to a visa officer an answer?
The answer is yes!” The Court considers the answer to be implicit and explicit.
II. Introduction
[3]
This
is an application for judicial review, pursuant to section 72 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (IRPA), of a decision of an
Immigration Officer refusing the Applicant’s application for a Permanent
Resident Visa.
III. Facts
[4]
The
Applicant, Mr. Leonid Reznitski, applied for permanent residence as a skilled
worker. In his application, he indicated that he was unemployed from 1996 to
2001.
[5]
As
part of the assessment process, the Applicant was asked for further information
on January 14, 2010 and given 30 days to respond. In particular, the Applicant
was asked to forward copies of passports; for details of his military service
and to further account for his activities during the years 1996 to 2001.
[6]
On
January 26, 2010, the Applicant responded to the January 14, 2010 letter. The
Applicant provided copies of his and his family members’ passports and provided
details of his military service; however, with respect to the inquiry
concerning his activities between 1996 and 2001, the Applicant elected to answer
the inquiry by tersely restating information he had already given
and simply indicated that he was unemployed (‘je n’ai pas travaillé’).
[7]
The
Officer reviewed the Applicant’s response and concluded that he was not
satisfied that the Applicant met the criteria for admission since there was a
serious gap in the information about the Applicant and his activities. The
Officer noted section 16 of the IRPA, which provides that applicants must truthfully
answer all questions put to them for the purpose of examination. The Officer
noted that the Applicant was not asked if he was working but to provide an
account of his activities during the period. Based on the Applicant’s lack of
candour, the Officer was unable to find that he was admissible and the Officer
accordingly refused the application.
[8]
After
receiving the rejection letter, the Applicant purported to supply further
details, and embellished his initial response.
III. Issue
[9]
Did
the Immigration Officer err in principle or render a decision in bad faith?
IV. Standard of Review
[10]
The
standard of review of decisions of visa officers was recently reiterated by
Justice Yves de Montigny:
[15] … This Court has consistently
held that the particular expertise of visa officers dictates a deferential
approach when reviewing their decisions. There is no doubt in my mind that the
assessment of an Applicant for permanent residence under the Federal Skilled
Worker Class is an exercise of discretion that should be given a high degree of
deference. To the extent that this assessment has been done in good faith, in
accordance with the principles of natural justice applicable, and without
relying on irrelevant or extraneous considerations, the decision of the visa
officer should be reviewed on the standard of patent unreasonableness: Postolati
v. Canada (M.C.I.), 2003 FCT 251; Singh v. Canada (M.C.I.), 2003 FCT
312; Nehme v. Canada (M.C.I.), 2004 FC 64; Bellido v. Canada
(M.C.I.),2005 FC 452, [2005] F.C.J. No. 572 (QL).
(Kniazeva v Canada (Minister of
Citizenship and Immigration), 2006 FC 268, 288 FTR 282).
[11]
This
equates to a standard of review of discretionary decisions of visa officers
previously referred to as reasonableness simplicitor. Where the statutory
discretion has been exercised in good faith, with fairness, and without
reliance on irrelevant or extraneous considerations, the Court will not
interfere (Liu v Canada (Minister of Citizenship and Immigration), 2001
FCT 751, 2008 FTR 99, at par 26; Benammar v Canada (Minister of Citizenship
and Immigration), 2001 FCT 1176, 112 ACWS (3d) 137, at para 27). Now
the Dunsmuir decision standard is one of reasonableness which
clearly embodies that which it connotes and denotes (Dunsmuir v New-Brunswick, 2008 SCC 9, [2008] 1
SCR 190).
V. Analysis
[12]
The
Court agrees with the position of the Respondent.
[13]
The
Applicant elected not to answer the Officer’s question and declined to account
for his activities during a five year period. The fact that the Applicant
supplemented his response after he obtained the refusal is his own tacit
acknowledgement that the initial response was not sufficient. The Officer
was clearly entitled to also find that it was insufficient and to refuse the
application on that basis.
[14]
The
Applicant argues that a decision was made on the file before 30 days after the
date of the January 14, 2010 letter had expired. The Officer gave the
Applicant 30 days to provide the information; the reason the decision
was made before the expiry of 30 days is that the Applicant provided his
response in less time. The Applicant’s response is clearly his full
response and does not indicate that anything else is either outstanding or
forthcoming. In the circumstances, the Officer is not required to keep the
file open for the full 30 days. The Applicant’s response is abundantly clear
in that it is his complete (‘non’) response and he does not indicate that any
further response is coming.
[15]
The
facts also do not support the Applicant’s claim in his affidavit that he had
‘not yet finished gathering information (Application Record at p 14). He had no
information to gather for the purposes of answering the question; he simply
declined to answer it. The Applicant did not need any time to ‘gather’
information on his activities, all he needed to do was disclose, but he simply
decided that he was not going to share that information. The notion that the
Applicant was working on a further reply is a claim that is simply unworthy of
belief. The Applicant’s February 1, 2010 letter was provoked by the refusal
letter and the refusal letter alone. The Applicant’s January 26, 2010 letter
was his complete response.
[16]
The
facts also run directly contrary to the Applicant’s self serving argument at
paragraph 26 that he was ‘clearly not attempting to avoid providing
information’. Avoiding answering the question was precisely what the Applicant
was doing. An application for leave based on argument unmoored from the
actual facts does not give rise to any serious issues.
[17]
As
for the fairness argument, the argument is also bereft of merit. The Officer
was not required to warn the Applicant that his answer was deficient. It is
manifestly deficient and the Applicant deliberately provided the same
information that he had previously provided and by so doing, declined to answer
the Officer’s question. The Applicant was not complying with the requirement to
answer questions. The Applicant had an opportunity to fill in the details and
he declined to do so. The Officer was not required to inform the Applicant of the
obvious, that his ‘wasn’t working’ answer is insufficient. The step taken by
the Officer in the face of the Applicant’s refusal to answer was the only step
open to the Officer and there was no need to warn the Applicant of the obvious
outcome of his failure to answer the question (Moreau-Berube v New Brunswick
(Judicial Council), 2002 SCC 11, [2002] 1 S.C.R. 249).
[18]
As
the Applicant’s argument is predicated on his claim that his non-responsive
response was ‘not unreasonable or outside the realm of acceptability’, the
argument is unfounded: the Applicant’s response merely repeated information the
Officer already held.
[19]
As
the Applicant provided further details on February 1, 2010 (which the Applicant
claims he was working on providing all the while), the Applicant himself must
be taken to be acknowledging that his January 26, 2010 response was deficient,
which it clearly was. The Applicant’s argument that he was unaware that
further details were required does not easily co-exist with his evidence that
he was all the while working on providing a more fulsome response to the
Officer’s inquiry.
VI. Conclusion
[20]
It
is trite law that on an application for judicial review this Court is not to
substitute its decision for that of the first-instance tribunal. In any judicial
review of the factual determinations, the primary question to be asked is
whether the finding was one that could reasonably have been made on the
evidence before the tribunal. If the finding is reasonable, it must stand
and review must only take place where the findings of fact may be construed as
perverse, capricious or made without regard to the material before it (Federal
Courts Act, RSC 1985, c. F-7, at para 18.1(4)(d)).
[21]
The
Applicant has not met this test. The Officer’s determination that the Applicant
had failed to satisfy her that he had experience in the intended occupations
was reasonably open to the officer on the face of the record.
[22]
For
all of the above reasons, the Applicant’s application for judicial review is
dismissed.
JUDGMENT
THIS COURT’S JUDGMENT
is that
the Applicant’s application for judicial review be
dismissed. No question for certification.
“Michel M.J. Shore”
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