Smirnova v. Canada (Minister of Citizenship and Immigration), 2003 FCT 209

Date: 20030220

Docket: IMM-2659-01

Neutral citation: 2003 FCT 209

Toronto, Ontario, Thursday, the 20^th day of February, 2003

PRESENT:      The Honourable Mr. Justice Campbell

BETWEEN:

                                       LARISA SMIRNOVA, VALERIJS SMIRNOVS

AND SERGEJS SMIRNOVS

Applicants

- and -

THE MINISTER

OF CITIZENSHIP AND IMMIGRATION

Respondent

                                               REASONS FOR ORDER AND ORDER

• [1]                 This is an application for judicial review of the decision of a visa officer, dated March 29, 2001, refusing the application submitted by the Applicants for permanent residence in Canada.
• [2]                 The Applicants are citizens of Latvia. The principal Applicant, Larisa Smirnova, applied for permanent residence in the independent category and requested an assessment as an Electrical Engineer. Her husband and son were included in the application as dependents.
• [3]                 On her points tally, the principal Applicant was awarded zero points for occupational factor and zero for experience. In total, she received 60 points. Pursuant to sections 9 and 11 of the Immigration Regulations, 1978, SOR/78-172, without a minimum of one unit of assessment in both occupational factor and experience, and a total score of 70 points, she could not be granted a visa.

• [4]                 The Applicant challenges the Visa Officer's decision rejecting her application on a due process argument.
• [5]                 In support of her application, the Applicant supplied a reference letter from her most recent employer, Mr. Motov, which, in part, states as follows:

Mrs. Smirnova calculates and develops units of equipment manufactured at Visants Ltd.

She calculated and designed the following devices:

·                 power units for satellite receivers ST-010 and ST-020

·                 synchronizer of video signal line selection                      

·                 a number of monitoring and measuring devices.

In parallel to her main duties (design and development of electrical equipment) Mrs. Smirnova supervises the manufacture of prototype products.

The projects completed by Mrs. Smirnova testify to her advanced engineering skills. Her designs incorporate state-of-the-art components and are safe and energy-efficient.

[Emphasis added]

(Tribunal Record, p. 46)

[9]                 Mr. Motov's letter was before the Visa Officer at the time the Applicant was interviewed on December 4, 2000. In the Visa Officer's affidavit filed in the present application, the Visa Officer says this at paragraph 14:

Mr. Motov, the Director of Visants Ltd., who wrote a reference letter for the Applicant, was interviewed by me in Riga two days later. When seeking information of the Applicant's work history, I questioned Mr. Motov about the Applicant's job duties. He stated that the Applicant's main duty was supervision of the manufacturing process of the electronic devices. He stated that he was directly responsible for the design of any new product to be manufactured.

[10]            It is obvious that Mr. Motov's statements made in the oral conversation with the Visa Officer are in direct conflict with his statements made in his reference letter. I find from the CAIPS notes entry of December 14, 2000 (Tribunal Record, p. 3) that the Visa Officer relied on Mr. Motov's oral statements in reaching her decision.

[11]            I agree with the Applicant's argument that, to be fair, the Visa Officer should have provided an opportunity for the Applicant to respond to the important conflict in the evidence which arose. In fact, the Applicant did not learn of the conflict until after the decision under review was made. I find this unfairness constitutes a breach in due process which renders the Visa Officer's decision as one made in reviewable error.

                                                  ORDER

Accordingly, the Visa Officer's decision is set aside and the matter is referred back to a different visa officer for redetermination.

"Douglas R. Campbell"

                                                                                                      J.F.C.C.                        

                              FEDERAL COURT OF CANADA

    Names of Counsel and Solicitors of Record

DOCKET:                                              IMM-2659-01

STYLE OF CAUSE:              LARISA SMIRNOVA, VALERIJS SMIRNOVS,

AND SERGEJS SMIRNOVS     

                                                                                                   Applicants

- and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                 Respondent

PLACE OF HEARING:                      TORONTO, ONTARIO

DATE OF HEARING:                        THURSDAY, FEBRUARY 20, 2003

REASONS FOR ORDER

AND ORDER BY:                               CAMPBELL, J.

DATED:                                                 THURSDAY, FEBRUARY 20, 2003

APPEARANCES BY:                          Mr. Dan Miller   

For the Applicants

Ms. Angela Marinos

For the Respondent

SOLICITORS OF RECORD:           Dan Miller

Barrister and Solicitor

Suite 335 - 200 Finch Avenue

Toronto, Ontario

M2R 3W4       

For the Applicants

Morris Rosenberg         

                                                                Deputy Attorney General of Canada

For the Respondent

FEDERAL COURT OF CANADA

           Date: 20030220

            Docket: IMM-2659-01

BETWEEN:

LARISA SMIRNOVA, VALERIJS SMIRNOVS, AND SERGEJS SMIRNOVS

                   Applicants

- and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                     Respondent

REASONS FOR ORDER

AND ORDER