Docket: IMM-4139-16
Citation:
2017 FC 551
Vancouver, British Columbia, June 6, 2017
PRESENT: The
Honourable Mr. Justice Barnes
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Docket: IMM-4139-16
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BETWEEN:
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IRINA VASILYEVA
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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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JUDGMENT AND REASONS
[1]
This case raises a single issue of procedural
fairness. The question posed by the application is whether it was incumbent on
the visa officer to advise the Applicant of his concerns about the authenticity
of her husband’s tendered Russian military record of service [service book].
[2]
The Applicant was seeking permanent residency in
Canada. Her spouse’s Russian military service was obviously relevant to the
application and the visa officer requested his service book by email dated August
24, 2015. The Applicant provided a copy of her husband’s service book issued in
1992, which was received on September 22, 2015. The dating of this record
raised a fresh concern as can be seen from the visa officer’s file notes dated
May 12, 2016:
- Spouse: career in the Soviet military as
an officer. Spouse submitted translated copy of military book: spouse served apparently
10 years, 1982-1992, attending military college for 5 years and then serving as
a senior lieutenant in Saint Petersburg: spouse appears to have had no
promotions despite formal military education and lengthy service. Spouse’s
military booklet was issued in 1992, at the end of his service: this is highly
unusual as his Soviet military booklet should have been issued when he was 18 years
old (circa 1981), when he would have been called to register for mandatory
military service; he should definitely have been issued a military booklet at
the beginning of his military career service in 1982. NB that the 1992copy of
the military booklet submitted does not indicate that it is a replacement or a
duplicate. Original Military Booklet from 1981/1982, Detailed Military History
table and Security Screening Required
[3]
Because of the above concern, the visa officer
requested, within 60 days, the “original military book (confirming
your service in the army from 1982 to 1992) and completed, attached form
regarding your service in the army along with all details”. A few days
later, a more detailed request was sent in the following form:
This is a follow-up message to our email
dated 12 May 2016.
Please note that a copy of Vladimir Serdyuk’s
military book is already on file; however, this military book was issued in
1992, at the end of Vladimir Serdyuk’s military career. In addition to the
documentation requested in our 12 May 2016 email, please submit a certified
translated copy of Vladimir Serdyuk’s military book that was issued to him in either
1981-1982, when he turned 18 and began his military service. If Vladimir
Serdyuk does not have a military book issued in 1981-1982, please provide a
detailed explanation as to why he does not have a military book dating from the
beginning of his military service.
Please comply with our request within 60
days, otherwise your application for permanent residence in Canada will be
assessed based on the documentation on file and may be refused.
[4]
It appears from the record that the Applicant
either failed to provide all of the additional requested information within the
time required or, possibly, that information somehow went astray. From the
record, it is not possible to tell.
[5]
What happened next is the crux of the matter at
hand. Instead of simply rejecting the application for failing to perfect the
record, the visa officer identified an entirely new problem. He expressed a
concern about the authenticity of the service book that had been submitted.
This concern is reflected in the following passage from the visa officer’s file
notes:
On 02 June 2016, applicant submitted an
explanation letter, the original military book issued in 1992, and aDetails of
Military Service table. I note that the military book looks brand new (no
wrinkles, folds or wear & tear) even though it was issued 24 years ago. I
also note that the corners of the military book submitted are not die-cut (as
one would expect with a government-issued booklet) but rather appear to have
been round-cut with scissors. These two factors call into question its
authenticity.
[6]
Without informing the Applicant of the above
credibility concern, the visa officer proceeded to refuse the application. This
decision prompted a request for reconsideration which was also rejected.
[7]
The Applicant contends that the visa officer’s
failure to advise her of his concerns about the authenticity of the service
book was a breach of procedural fairness. The Respondent argues that this issue
is a “red herring” because the true basis for
the decision was the Applicant’s failure to provide the corroborating evidence
requested by the visa officer.
[8]
I am of the view that there was a breach of procedural
fairness in this case requiring the matter to be redetermined on the merits.
Notwithstanding Mr. Nash’s forceful arguments, it is not possible on the record
to know the extent to which the decision was influenced by the
credibility/authenticity concerns expressed in the visa officer’s file notes.
[9]
In the result, the benefit of the doubt goes to
the Applicant. She should have been given the opportunity to address the
concern and the failure to extend that opportunity is a breach of procedural
fairness: see Mursalim v. Canada (Citizenship and Immigration), 2016 FC
264 at paras 22-24, [2016] FCJ No 235 (QL).
[10]
For the foregoing reasons, this application is
allowed. The matter is to be redetermined on the merits by a different
decision-maker.
[11]
Neither party proposed a certified question and
no issue of general importance arises on the record.
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