Docket: IMM-4566-16
Citation:
2017 FC 964
Ottawa, Ontario, October 30, 2017
PRESENT: The
Honourable Madam Justice Mactavish
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BETWEEN:
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SERGH
SAPOJNIKOV
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Applicant
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and
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THE MINISTER OF
IMMIGRATION,
REFUGEES AND
CITIZENSHIP
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Respondent
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JUDGMENT AND REASONS
[1]
Sergh Sapojnikov seeks judicial review of the
decision refusing his application for permanent residence in Canada as a member
of the Start-up Business Class. A Visa Officer concluded that Mr. Sapojnikov
had entered into a business incubation program with the Toronto Business
Development Centre primarily for the purpose of acquiring status in Canada, and
not for the purpose of engaging in business activities.
[2]
Mr. Sapojnikov asserts that the decision
was arrived at in a procedurally unfair manner. He submits that the Officer
made negative credibility findings based upon concerns with respect to his
immigration history, without him being afforded the opportunity to address the Officer’s
concerns. Mr. Sapojnikov further submits that the Visa Officer’s finding
that his application was primarily motivated by a desire to obtain status in
Canada was influenced by a poison pen letter that was never disclosed to him.
Finally, Mr. Sapojnikov argues that the Officer took irrelevant
considerations into account in rejecting his application.
[3]
For the reasons that follow, I agree that Mr. Sapojnikov
was treated in a procedurally unfair manner in the visa process. Consequently,
his application for judicial review will be granted.
I.
Background
[4]
Mr. Sapojnikov was born in the former
Soviet Union and is a citizen of Israel. He describes himself as an inventor
and entrepreneur who has developed highly efficient proprietary solar cell
technology. He asserts that he has constructed a working prototype solar
panel, which has been successfully tested by several third parties, who have
confirmed their interest in Mr. Sapojnikov’s technology.
[5]
In 2005, Mr. Sapojnikov incorporated a
company in Nova Scotia, as a subsidiary of a parent company in Israel that was
owned by Mr. Sapojnikov and members of his family. Mr. Sapojnikov and
his wife then obtained intra-company transferee work permits, allowing them to
live and work in Canada. The couple’s work permits were set to expire in 2008.
However, they had developed concerns about returning to Israel because of
conflict taking place between Israel and Palestine, and their fear of
discrimination due to their Christian identity. Consequently, the family filed
a refugee claim.
[6]
Following the refusal of their refugee claim in
2011, the family applied for a Pre-removal Risk Assessment. They also submitted
an application for permanent residence based on humanitarian and compassionate
grounds. After both of these applications were denied, the family left Canada
when they were required to do so.
[7]
In the spring of 2014, Mr. Sapojnikov
contacted the Toronto Business Development Centre (TBDC). After six months of “document exchanges, conversations and verifications with the
TBDC”, Mr. Sapojnikov signed an agreement to enter into their
business incubation program, and he obtained a Commitment Certificate from the TBDC
on October 6, 2014. As part of this agreement, Mr. Sapojnikov paid a
business incubation program fee of just over $27,000, and he agreed to pay the
TBDC a percentage of any future revenues in royalties. In exchange, he was to
receive advisory support, networking opportunities, and access to a physical
workspace and tools at the TBDC.
[8]
On the basis of his Commitment Certificate, Mr. Sapojnikov
applied for permanent residence through the Start-up Business Class (SUBC) in
October of 2014. His application included a request for an SUBC work permit,
and Mr. Sapojnikov subsequently applied for Authorizations to Return to
Canada for himself and his family, at the suggestion of immigration authorities.
[9]
A Visa Officer’s notes for June 4, 2015 state
that a poison pen letter had been received on January 20, 2015 from an
individual named Vacheslav Kleiman. The letter alleged that Mr. Sapojnikov
had taken a significant amount of money from two other individuals or families
in exchange for them being included in his start-up business project in order
to assist them in acquiring permanent residence in Canada. The notes further
state that immigration authorities had attempted to contact the author of the
poison pen letter, but had been unsuccessful in doing so.
[10]
The Officer’s notes also state that the
information contained in the poison pen letter suggested that Mr. Sapojnikov
“may have been deceitful in alleging to the two other
families the extent of their involvement in the immigration process of
obtaining Canadian permanent resident status”. The notes further stated
that “[a]lthough not proven, this may have been a way
to allow for the applicant (SAPOJNIKOV, Sergh) to obtain additional funds
(given his alleged lack of work at Seven Way Ltd.) in order to allow him to pay
for his permanent resident application”.
[11]
A procedural fairness letter was written to Mr. Sapojnikov
the next day seeking additional information with respect to his company and the
projects it had undertaken. He was also asked to provide personal and business
tax returns for the last five years, as well as proof of settlement funds as
well as police certificates for Mr. Sapojnikov and his spouse. No mention
was made, however, of the fact that a poison pen letter had been received, nor
was the information contained in the letter ever put to Mr. Sapojnikov.
[12]
Mr. Sapojnikov replied to this request on
June 9 and June 28, 2015, providing detailed information in response with
respect to his business plan and his technology. He also provided letters from
Canadian entities expressing interest in his technology. He explained why tax
returns were not available, and he claimed to have $47,000 in cash, and
provided proof that he had transferred $28,334.75 to the RBC trust account of
TBDC.
[13]
Mr. Sapojnikov also provided a contract pursuant
to which Mr. Sapojnikov had developed an LED plant-growing Smart Lamp, for
which he was paid $24,000. He also provided a contract under the terms of which
he designed and installed a “Smart Home”
security system for a client in Israel by the name of Vacheslav Kleiman.
Vacheslav Kleiman was, of course, the name of the purported author of the
poison pen letter.
[14]
On February 24, 2016, the Case Processing Centre
– Ottawa (CPC-O) sent Mr. Sapojnikov a procedural fairness letter stating
that a Visa Officer had concluded that Mr. Sapojnikov had applied for a
SUBC visa for the purpose of acquiring status in Canada, and not for the
purpose of engaging in business. The letter further indicated that the basis
for coming to this this conclusion was that Mr. Sapojnikov had stated that
he was the only founder, owner and director of both the Canadian company and
its Israeli parent. In addition, Mr. Sapojnikov had admitted that the
company had no financial operations between 2005 and 2013, and he had not filed
personal or business income taxes in 2013 and 2014 in Israel. Finally, the Officer
noted that the Israeli company existed only on paper, and that it did not have
any tangible operations.
[15]
Mr. Sapojnikov responded to this letter
with a detailed explanation addressing each of the Officer’s concerns. He
explained that he was the founder and director of the Canadian company, and not
the Israeli company. He further explained that his father had been the majority
shareholder of the Israeli company, and that Mr. Sapojnikov’s knowledge of
the status of the Israeli company had been limited since the death of his
father in 2011. He did, however, provide a detailed accounting of the assets of
the Israeli company between 1998 and 2007, including evidence of registered
patents and a physical address. Finally, Mr. Sapojnikov explained that he
did not have Israeli tax returns because his income had been taxed at source, with
the result that he did not have to file tax returns.
[16]
On May 24, 2016, the CPC-O sent Mr. Sapojnikov
a further email, this one requesting evidence of support from various
institutions, as well as particulars of the steps that he had taken to advance
his invention since leaving Canada in 2013. He was also asked to explain why the
development and testing of his product had only occurred in Canada. Once again,
Mr. Sapojnikov wrote a detailed reply, responding to each of the concerns
that had been identified
[17]
By letter dated October 17, 2016 Mr. Sapojnikov
was advised that his application for permanent residence in Canada as a member
of the SUBC had been refused as a Visa Officer had concluded that Mr. Sapojnikov
had entered into a business incubation program with the TBDC primarily for the
purpose of acquiring status in Canada, rather than for the purpose of engaging
in business activities.
II.
Analysis
[18]
The determinative issues in this case involve
questions of procedural fairness. Where an issue of procedural fairness arises,
the Court’s task is to determine whether the process followed by the
decision-maker satisfied the level of fairness required in all of the
circumstances: in other words, to apply the correctness standard: see Mission Institution v. Khela, 2014 SCC 24 at para. 79, [2014] 1 S.C.R. 502.
A.
The Poison Pen Letter
[19]
The first issue relates to the failure of the
CPC-O to disclose the poison pen letter to Mr. Sapojnikov before refusing
his application for permanent residence.
[20]
It is a breach of procedural fairness not to
disclose extrinsic evidence, such as a poison pen letter, that is subsequently
relied upon in making a decision: Qureshi v. Canada (Citizenship and
Immigration), 2009 FC 1081 at para. 28, [2010] 4 F.C.R. 256.
[21]
The Respondent submits that the letter was not
relied on in making the decision to refuse Mr. Sapojnikov’s application
for permanent residence. The Respondent notes that the CPC-O had attempted to
contact the author of the letter in 2016, submitting that no further
consideration was given to the letter after it had been unsuccessful in
reaching the writer or the letter. I do not accept this submission.
[22]
As Mr. Sapojnikov notes, the poison pen
letter arrived relatively early in the decision-making process, submitting that
it would inevitably have set off credibility concerns with respect to the bona
fides of his application.
[23]
It is particularly troubling that the content of
the poison pen letter is discussed at some length in the GCMS notes of June 4,
2015, and that a procedural fairness letter was sent to Mr. Sapojnikov the
very next day, seeking detailed information with respect to his company and
the projects it had undertaken, as well as financial and tax information and
police certificates.
[24]
The logical inference to be drawn from the close
proximity in time of the two events is that the contents of the poison pen
letter triggered concerns on the part of the CPC-O with respect to the
credibility of Mr. Sapojnikov and the underlying purpose of his
application for permanent residence, and that it played a role in the decision
to send him the procedural fairness letter of June 5, 2015. For whatever
reason, however, Mr. Sapojnikov was not made aware of the existence of the
poison pen letter or of its contents.
[25]
Because the issue raised by the poison pen
letter involves a question of procedural fairness, Mr. Sapojnikov was
permitted to supplement the record on his application for judicial review: Assn.
of Universities and Colleges of Canada v. Canadian Copyright Licensing Agency,
2012 FCA 22 at para. 20, 428 N.R. 297. Mr. Sapojnikov produced an
affidavit sworn by Mr. Kleiman in support of his application for judicial
review in which Mr. Kleiman denies having sent the poison pen letter. It
would have been up to a Visa Officer to determine the probative value of such a
denial, but Mr. Sapojnikov was never afforded the opportunity to put this
evidence before the Officer.
[26]
I recognize that the level of procedural
fairness owed to visa applicants is at the lower end of the spectrum: Chiau
v. Canada (Minister of Citizenship and Immigration), [2001] 2 FC 297 at
para. 41, 195 D.L.R. (4th) 422 (F.C.A.). That said, as Mr. Sapojnikov’s
credibility played a key role in determining whether his application was
motivated primarily for the purpose of obtaining status in Canada, it is hard
to see how the poison pen letter would not have played at least some role in
the Officer’s evaluation of his credibility. As a result, it was fundamentally
unfair for consideration to be given to the contents of the poison pen letter
without Mr. Sapojnikov having been afforded an opportunity to address it.
[27]
While this provides a sufficient basis for
granting Mr. Sapojnikov’s application for judicial review, I will also
briefly address the issue of his immigration history.
B.
Mr. Sapojnikov’s Immigration History
[28]
Although it is not mentioned in the decision
letter, it is apparent from the GCMS notes that Mr. Sapojnikov’s
immigration history played a significant role in the decision to refuse his
application for permanent residence.
[29]
For example, the Officer notes that instead of
leaving the country after the expiry of his work permits, Mr. Sapojnikov “applied for refugee status and after the claim was rejected
he applied for H&C and sought every avenue of appeal until finally deported
on 23 October 2016”. The notes further observe that Mr. Sapojnikov’s
record “indicates a disregard for the established
procedures by working illegally and overstaying”. The notes also state
that Mr. Sapojnikov’s background information “points
towards persistence in remaining, if not also returning to Canada by any means
possible, let alone circumventing immigration rules and regulations”.
[30]
Mr. Sapojnikov takes issue with each of
these statements. He notes that he followed the immigration avenues that were
lawfully available to him. He also takes issue with the claim that he was
deported, claiming that he left the country voluntarily when he was required to
do so. Finally, Mr. Sapojnikov denies ever having worked illegally in this
country.
[31]
The Respondent submits that Mr. Sapojnikov
would have been well aware of the details of his own immigration history, with
the result that there was no obligation on the Visa Officer to inform him of
this. With respect, this misses the point. While Mr. Sapojnikov was
undoubtedly aware of the details of his immigration history, he was not aware
of the Officer’s finding that he allegedly worked illegally in Canada and that
he had allegedly circumvented Canadian immigration rules. Consequently, Mr.
Sapojnikov had no opportunity to challenge the findings cited above. This
constitutes a further breach of procedural fairness in this case.
III.
Conclusion
[32]
For these reasons, the application for judicial
review is allowed. I agree with the parties that the case is fact-specific and
does not raise a question that is suitable for certification.
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