THE FACTS
[2]
The applicant,
a citizen of Ukraine born in November 1966, applied
for permanent resident status in July 2000 under the independent category by
virtue of his training and occupation in three categories (translator, contract
management officer and legal assistant). He was to be accompanied by his wife,
their son and his wife’s daughter from a previous marriage.
[3]
He was
first interviewed in Kiev on July 5, 2004. As a result
of that interview, he was approved on selection for immigration purposes on
that same day.
[4]
A second
interview regarding security took place on December 16, 2004, in Warsaw. A third interview with
respect to background information and security finally took place in Warsaw on April 26, 2006. During
those security interviews, Mr. Afanasyev explained that he completed his
compulsory military service in the Soviet Army from 1985 to 1987. He disclosed
that he served as a private during six months in a unit that was responsible
for telecommunications and intercepts, and that he was trained in radio
intelligence. According to a brief from the Canadian Security Intelligence
Service (CSIS) sent to the Canada Border Services Agency, the applicant should
have admitted that his duties entailed listening to English language
communications coming from US bases in West Germany, identifying and debriefing
various frequencies and telegraph codes, as well as receiving training in radio
intelligence that consisted of propaganda, physical training, interception,
grammar, spelling, audition and special NATO telegraphic code. However, the applicant
denied any affiliation to the Russian or Ukrainian Intelligence Services.
[5]
After
leaving the army in 1987, Mr. Afanasyev went back to Kiev University where he earned a Masters Degree in
International Law; he also obtained a diploma from the State Examining Board as
a Translator of English (legal). His knowledge of Western contract law, his
legal translation expertise and his familiarity with emerging commercial law in
the Ukraine then lead to his employment
as a consulting specialist with the Kiev Chamber of Commerce as well as several
private companies.
[6]
On April
14, 2008, the Officer sent the applicant a fairness letter informing him that
he may be inadmissible to Canada pursuant to subsection 34(1) of the IRPA since
she had reasonable grounds to believe that he was a member of the inadmissible
class of persons described in subparagraphs 34(1)(a) and (f) as a
result of his activities during his military service. The Officer gave him an
opportunity to respond to her concerns before a final decision was made.
[7]
On June
13, 2008, applicant’s counsel made extensive submissions to the Officer and
submitted that the applicant did not volunteer for his assignment in East Germany. He also explained that his
duties primarily involved sitting next to a radio receiver and listening to
English language military transmissions on various radio frequencies, passing
these messages on in encrypted form without any knowledge of their coding.
Finally, counsel argued that the applicant’s activities can be described, at
best, as military intelligence, but did not fall within any reasonable
definition of “espionage” or “subversion”. In that same letter, counsel also
requested, in the alternative, that the applicant be granted ministerial relief
from an inadmissibility finding, pursuant to subsection 34(2) of the IRPA,
since the applicant’s presence in Canada
would not be detrimental to national security.
[8]
The
Officer acknowledged the applicant’s request for ministerial relief, and
indicated in a letter dated July 15, 2008 that if he wished to seek ministerial
relief he should prepare submissions along with any supporting documentation.
To assist with the preparation of submissions, the Officer listed some
questions and information that should form part of a package for ministerial
relief. She closed in stating that any submissions had to be made within 60
days of the date of that letter, failing which it would be concluded that no
submission would be forthcoming.
[9]
On August
19, 2008, applicant’s counsel replied to the Officer’s letter. He reiterated
that “espionage” and “subversion” are concepts distinct from that of
participating in routine military intelligence exercises as a conscript in the
armed forces, and asked the Officer to consider all his submissions on that
issue. He further reminded the Officer of his previous alternative request for
relief pursuant to subsection 34(2) in the following terms: “Your reply of July
15, 2008 outlines all of the formalities and considerations that should be
included in a request for relief under s. 34(2). We appreciate your assistance
in this regard and are prepared to provide such a formal request under this
section should this be required. However, at this time we have had no final
determination from you on the question of his inadmissibility itself. Therefore
it would appear premature to present a formal submission for relief under s.
34(2). However we do reserve our right to do so as necessary”.
[10]
On October
2, 2008, the Officer issued a decision under section 34(1), essentially
reiterating the applicant’s inadmissibility on the grounds that he was a person
described in subparagraphs 34(1)(a) and (f).
[11]
Following
that decision, counsel for the applicant wrote to the Officer stating that the
October 2, 2008 essentially repeated her earlier tentative concerns regarding
admissibility under s. 34(1) without acknowledging the submissions made in his
June 13, 2008 letter. To the extent that the Officer had confirmed the applicant’s
inadmissibility, counsel requested a short period of time to submit additional
submissions regarding subsection 34(2), and reiterated the issues previously
raised in that respect.
[12]
In a
subsequent letter dated November 12, 2008, the Officer explained that her
decision was based on full and careful review of all the information on file,
was final and would not be reconsidered. She added that any additional
information could only be considered in the context of a new application.
THE IMPUGNED DECISION
[13]
As
previously mentioned, the Officer found that there are reasonable grounds to
believe Mr. Afanasyev is a member of the inadmissible class of persons
described in subsections 34(1)(a) and (f) of the IRPA. These
subsections provide that a permanent resident or foreign national is
inadmissible on security grounds for
|
(a) engaging in an
act of espionage or an act of subversion against a democratic government,
institution or process as they are understood in Canada;
…
(f) being a member of
an organization that there are reasonable rounds to believe engages, has
engaged or will engage in acts referred to in paragraph (a), (b)
or (c).
|
a) être l’auteur
d’actes d’espionnage ou se livrer à la subversion contre toute institution
démocratique, au sens où cette expression s’entend au Canada;
[…]
f)
être membre d’une organisation dont il y a des motifs raisonnables de croire
qu’elle est, a été ou sera l’auteur d’un acte visé aux alinéas a), b)
ou c).
|
[14]
The
Officer came to that conclusion essentially on the basis of the CSIS brief
already referred to in paragraph 4 of these reasons. Here is what she wrote in
that respect:
Specifically, during your military
service with the Soviet Army from 1985 to 1987, you were a member of the 82nd
Special Communications Brigade, 11th Company, 1st
Platoon. You were trained in radio intelligence that consisted of propaganda,
physical training, interception, grammar, spelling, audition, and special NATO
telegraphic codes. Your duties during your assignment in Torgau, East Germany entailed listening to English
language communications coming from US bases in West Germany and identifying and debriefing various
frequencies and telegraph codes. I have reached this conclusion because you
made these admissions during your background investigation interviews.
[15]
As for
the request for ministerial relief under s. 34(2) of IRPA, the Officer found
that the applicant failed to make submissions in this regard, as he was invited
to do in the July 15, 2008 letter. No submissions having been made in response
to that letter, the Officer was of the view that there was nothing to be
considered under this subsection, and that no decision was called for.
ISSUES
[16]
This
application for judicial review raises the following three issues:
(a) What is the applicable
standard of review?
(b) Did the Officer err in finding the applicant
inadmissible pursuant to subsection 34(1)(a) and (f) of the IRPA?
(c) Did the Officer err in concluding
that no decision was called for pursuant to s. 34(2) as there was nothing to be
considered under that subsection?
ANALYSIS
- Preliminary issue
[17]
On October
1, 2009, the respondent filed a motion under section 87 of the IRPA to obtain
the non-disclosure of confidential security intelligence information that was redacted
in the Certified Tribunal Record. This motion was supported by a secret
affidavit explaining the reasons for which the blocked-out information cannot
be disclosed, to which was appended the confidential information that the respondent
seeks to protect.
[18]
In
response to that motion, the applicant filed a motion on October 13, 2009
requesting the appointment of a special advocate to protect his interests in
his absence during the hearing of the respondent’s motion.
[19]
In
accordance with the practice that has been established in similar matters, an ex
parte and in camera hearing was first held on February 19, 2010, at
which the Minister called the author of the secret affidavit filed in support
of the motion to testify. I was then able to ask the affiant questions
regarding the information that the respondent seeks to keep confidential and
the grounds underlying that motion.
[20]
Subsequently,
on March 4, 2010, I heard the submissions of both parties by conference call.
On that occasion, counsel for the applicant submitted the grounds on which he
believed the Minister’s motion should be dismissed and also argued
alternatively for the need to appoint a special advocate. The Minister’s motion
and the applicant’s request to appoint a special advocate were then taken under
consideration.
[21]
On March
12, 2010, another conference call involving counsel for both parties was held,
during which I communicated my decisions to grant the motion filed by the
Minister under the authority of section 87 of the IRPA and to deny the applicant’s
request to appoint a special advocate. I then briefly stated the rationale
underlying those decisions, and indicated that I would provide more extensive
reasons in the context of the final decision regarding the application for judicial
review itself. Here, therefore, are those reasons.
[22]
With
respect to the Minister’s application for non-disclosure, I can do no better
than reiterate what I have already said in previous similar cases: see Karakachian
v. Canada (Minister of Citizenship and Immigration), 2009 FC 948;
Rajadurai v. Canada (Minister of Citizenship and
Immigration),
2009 FC 119. While the good administration of justice and public confidence in
the judicial system generally dictate openness and access, there are exceptional
circumstances where national security considerations trump those basic
principles. Those exceptions must obviously be carefully delineated and
assessed on a case by case basis, with a view to circumscribing as narrowly as
possible these encroachments on one of the most essential and hard fought
bulwarks of personal freedom and the rule of law.
[23]
It is with these principles in mind that
I have approached the Minister’s application for non-disclosure. Having had the
opportunity to examine the witness who signed the affidavit in support of the
motion filed by the Minister, and to carefully review the material sought to be
redacted, I have come to the conclusion that the disclosure of the confidential
information that was taken out of the certified record would be injurious to
national security and endanger the safety of some persons. This information
must accordingly remain secret and will not be disclosed to the public, the applicant
or his counsel.
[24]
As for the
appointment of a special advocate, I do not think it is required in the
circumstances of the present case. Contrary to the situation that prevails in
the context of security certificates proceedings, the appointment of special
advocate is not mandatory under s. 87.1 of IRPA. Pursuant to that provision,
the presiding judge shall appoint a special advocate during a judicial review
proceeding if he or she “is of the opinion that considerations of fairness and
natural justice require” such an appointment to protect the interests of an
applicant.
[25]
It is well
established that the requirements of procedural fairness must be adapted to the
particular circumstances of each case. Not being a Canadian citizen, Mr. Afanasyev
has no right to enter Canada: Canada (Minister of Employment and Immigration)
v. Chiarelli, [1992] 1 S.C.R. 711, at
paragraph 24. In fact, the Federal Court of Appeal has already held that the
duty of fairness owed to visa applicants is minimal: Khan v. Canada
(Minister of Citizenship and Immigration), 2001 FCA 345, at paragraph 30; Chiau
v. Canada (Minister of Citizenship and
Immigration),
[2001] 2 F.C. 297 (C.A.), at paragraph
41.
[26]
Moreover,
the applicant cannot benefit from any of the rights guaranteed by section 7 of
the Charter since he applied for a visa outside the country in order to obtain
permanent resident status in Canada. Such an application does not
affect his life, liberty or security since Mr. Afanasyev is not in detention
and does not risk being removed to a country where he could suffer
mistreatment, but involves economic interests at most: Malkine v.
Canada (Citizenship and Immigration), 2009 FC 496, at paragraph 24.
[27]
Furthermore,
the portions of the certified record that were blocked out were not substantial
and do not prevent the applicant from availing himself of all means against the
negative decision he is challenging. The redacted portions are minimal, and
they relate to information disclosed by the applicant himself. Having read the
entire record, and in particular the blocked-out evidence that is the subject
of the motion filed by the Minister under section 87 of the Act, I have
therefore come to the conclusion that Mr. Afanasyev had access to the gist of
the information on which the Officer relied to deny him a permanent resident
visa. The information to which he does not have access would add little to his
understanding of the reasons for the decision and in no way prevents him from
advancing all possible arguments against the decision. In these circumstances,
the appointment of a special advocate is not required to ensure procedural
fairness before this Court.
a) The standard of review
[28]
The Officer
had to determine whether the tasks performed by Mr. Afanasyev when he was a
conscript in the Soviet Army amounted to “espionage” for the purposes of s.
34(1)(a) and (f). His findings in this respect involve questions
of mixed fact and law. Before Dunsmuir v. New Brunswick,
2008 SCC 9, such questions were reviewed under the reasonableness simpliciter
standard: Lennikov v. Canada (Minister of Citizenship and
Immigration),
2007 FC 43, at paragraphs 40-41; Naeem v. Canada (Minister of
Citizenship and Immigration), 2007 FC 123, at paragraph 40; Jalil v.
Canada (Minister of Citizenship and Immigration), 2006 FC 246, at
paragraph 20; Posteh v. Canada (Minister of Citizenship and Immigration),
2005 FCA 85, at paragraphs 21-24. There is no reason to depart from this
approach in the aftermath of Dunsmuir, and I note that the
reasonableness standard has indeed been consistently applied by my colleagues
in similar circumstances: see, inter alia, Kozonguizi v. Canada
(Minister of Citizenship and Immigration), 2010 FC 308, at paragraphs
16-17; Chwach v. Canada
(Minister of Citizenship and Immigration) 2009 FC 1036 at paragraph13; Motehaver v. Canada
(Minister of Public Safety and Emergency Preparedness), 2009 FC 141, at
paragraph 11; Contreras v. Canada (Minister of Citizenship and
Immigration), 2010 FC 246, at parasgraphs 23-25.
[29]
To the
extent that Mr. Afanasyev’s argument relates to the sufficiency of the Officer’s
reasons, however, I am of the view that the applicable standard of review must
be that of correctness. This issue clearly engages a question of procedural
fairness, and the standard of review analysis does not apply to those kinds of
issues. In those cases, the task of this Court is rather to determine if the
process followed by the decision-maker satisfied the level of fairness
required, bearing in mind the various factors enumerated by the Supreme Court
of Canada in Baker v.
Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817.
[30]
With
respect to the Ministerial relief issue, the applicant challenges the decision
of the Officer to put an end to his request under subsection 34(2). Whether
this argument is cast as a jurisdictional issue or as another facet of procedural
fairness, the result must be the same for the purposes of the relevant standard
of review. Once again, the decision of the Officer must be reviewed against the
standard of correctness.
b) Did the Officer err in finding the applicant
inadmissible pursuant to subsection 34(1)(a) and (f) of the IRPA?
[31]
The Officer
found the applicant inadmissible pursuant to section 34(1)(a) and (f)
of the IRPA for “engaging in signals intelligence espionage against the US and
NATO forces and for being a member of the 82nd Special
Communications Brigade, 11th Company, 1st Platoon which
has engaged in acts referred to in paragraph (a)”. This conclusion is
predicated on the Officer’s finding that the applicant’s duties entailed
“listening to English language communications coming from US bases in West Germany and identifying and
debriefing various frequencies and telegraph codes”.
[32]
On the
basis of the record before me, I find this conclusion of the Officer
problematic for at least two reasons. First of all, it is not entirely clear
what “debriefing” various frequencies and telegraph codes entails. This
sentence is found word for word in the CSIS brief sent to the Intelligence
Directorate of the Canada Border Services Agency. Yet, the same brief goes on
to mention that Mr. Afanasyev “described his tasks as listening with headphones
to identify radio frequencies, and clarified that his unit was responsible for
intercepting a chain of codes, letters and figures, not dialogue. He elaborated
that he would write a report, to be sent to the duty officer, but did not know
what happened to his reports after that point”. Indeed, the applicant has
always maintained that while he was trained in radio intelligence consisting in
propaganda, physical training, interception, grammar, audition and special NATO
telegraphic codes, his only duties and responsibilities while posted in East
Germany were writing down the encrypted English words and/or letters and
passing them on.
[33]
Nowhere
does the Officer discuss this discrepancy between the CSIS brief (itself
somewhat contradictory and ambiguous) and the applicant’s version. Yet, the Officer
recognizes that his conclusion is drawn from the admissions made by the applicant
himself; there is no documentary evidence whatsoever on record with respect to
the espionage activities of the applicant’s himself or his Brigade. In those
circumstances, it was imperative for the Officer to explain why he rejected the
applicant’s explanations, thereby impugning his credibility.
[34]
But there
is more. Her decision is predicated on her understanding of the term
“espionage”, yet nowhere does she offer any glimpse of what it entails in her
view. This oversight is all the more glaring since there is no definition of
that concept in the IRPA, nor is there any accepted understanding of that term
to be found in the case law. The only discussion of what constitutes
“espionage” appears to be the following paragraphs of Mr. Justice Lemieux’s
decision in Qu v. Canada (Minister of Citizenship and
Immigration), [2000] 4
F.C. 71 (reversed
on other grounds at 2001 FCA 399), where he dealt with the same word as it was
found in the Immigration Act, R.S.C. 1985, c. I-2:
25. The Immigration Act does not contain
any definition of espionage or subversion and, as noted, there are no cases on
point except the decision of the Immigration Appeal Board in Wenberg, Eric Ray
(1968), 4 I.A.C. 292, which stated at page 307:
The words “espionage”, “sabotage” and
“subversive activity” would appear to have no special legal meaning, and they
must therefore be given their ordinary meaning.
“Espionage” is defined in The Shorter
Oxford English Dictionary, 3rd ed., as “The practice or employment
of spies”. “Spy” is defined as “to watch…in a secret or stealthy manner; to
keep under observation with hostile intent…to make stealthy observations (in a
country or place) from hostile motives.”
…
26. As then, these words still have the
same meaning today. According to the Oxford
English Dictionary, 2nd ed., 1989, “espionage” means: “[T]he
practice of playing the spy, or of employing spies”.
…
28. According to the Petit Robert 1:
Dictionnaire alphabétique et analogique de la langue française, “espionnage” (espionage)
means [translation] : « The act of spying. See Surveillance… The occupation of
spies… a secret organization existing in all nations and of which the function
is to reveal the secrets of foreign or enemy powers.”
[35]
Counsel
for the respondent argues that the applicant’s only response to the allegations
under section 34(1) was that he was conscripted, that these activities occurred
over 20 years ago, and that the applicant did not have a higher position than
private in the Army. But the applicant’s submissions as found in his counsel’s
letter of June 13, 2008, were far more extensive than as alleged by the respondent.
Relying on various definitions of “espionage”, “intelligence” and “subversion”,
counsel submitted that Mr. Afanasyev’s activities may at most arguably fall
under the broad aegis of military intelligence, “albeit at its most basic
level”.
[36]
In his
memorandum, counsel for the respondent submitted that the applicant’s attempts
to characterize his activities as “military intelligence” as distinguished from
espionage were a semantic exercise which does not assist him, since the
gathering of military intelligence can be done by espionage. With all due
respect, this reasoning begs the question as it does not explain what
constitutes “espionage” and why the gathering of intelligence by the applicant
did amount to espionage.
[37]
In any
event, the rationale advanced by counsel for the respondent cannot be a
substitute for the Officer’s decision. Ex post facto justification cannot
cure the deficiencies of the reasons provided by the decision maker. In the
present case, the final decision of the Officer read exactly the same as the
fairness letter, and does not address at all the submissions made by applicant’s
counsel. As stated by the Federal Court of Appeal in Via Rail Canada Inc. v. National
Transportation Agency,
[2001] 2 F.C. 25 at paragraphs 21-22, the reasons “must address the major
points in issue”, and “[t]he reasoning process followed by the decision maker
must be set out and must reflect consideration of the main relevant factors.”
The Officer failed to do this, and as a result her reasons are inadequate and
failed to satisfy the procedural fairness requirement.
c)
Did the Officer
err in concluding that no decision was called for pursuant to s. 34(2) as there
was nothing to be considered under that subsection?
[38]
As will be
recalled, the Officer refused to forward the applicant’s request for
ministerial relief to the Minister as she seemed to have been of the view that
no formal request had been made to that effect. Yet, she acknowledged at least
twice the initial request made by counsel for the applicant in his letter of
June 13, 2008. First, the Officer stated in her fairness letter dated July 15,
2008, that “you have asked for relief under paragraph 34(2)…”, and as a result
suggested topics that might be addressed “if you wish to be considered for this
exemption”. She also entered the following note in the Computer Assisted Immigration Processing
System (CAIPS) on June 17, 2008, referring to applicant’s counsel letter of
June 13: “In the alternative, requests consideration under A34(2) as a foreign
national who satisfies Minister that their presence in Canada would not be
detrimental to the national interest. Minister of Public Safety and Emergency
Preparedness is only authorized decision-maker in this regard. Advice sought
from NHQ”. In those circumstances, was she justified in finding that there was
nothing to be considered under subsection 34(2) and in not forwarding the applicant’s
file to the Minister? I believe not.
[39]
This is clearly a
case where form prevailed over substance. It is true, as stressed by counsel
for the respondent, that the fairness letter clearly indicated to the applicant
that if he wished to be considered for this exemption, “the onus rests with you
to prepare a submission along with any supporting documentation that you deem
relevant”, and concluded with the following caveat: “Please provide any
submission that you wish to make within 60 days of the date of this letter. If
nothing is received within 60 days, we will conclude that no submission will be
forthcoming”.
[40]
That being
said, there can be no doubt that the applicant wished to be considered for this
exemption. It might have been more prudent for his counsel to make further
submissions immediately after being invited to do so by the Officer in her
fairness letter of July 15, 2008. Over the course of his application for
permanent resident status and the ensuing correspondence of his lawyer with
Citizenship and Immigration Canada, the following issues were raised:
a.
Mr.
Afanasyev’s activities over 20 years as a private conscript in the Soviet Army
were part of lawful and routine military intelligence exercises ordered by his
supervisors in his (then) country of citizenship.
b.
Refusal to
obey assigned duties as a conscripted soldier would have constituted an offence
in the Soviet
Union as it
would in most other countries. The commission of such an offence might itself
have rendered Mr. Afanasyev inadmissible to Canada on these grounds.
c.
Mr.
Afanasyev’s duties involved translating English words emanating from NATO
communications without an understanding or knowledge of the codes attached to
the words. In any event NATO military codes used in the mid-80s would no
longer be relevant today to Canada or to any other country.
d.
There is
no issue or allegation that any of Mr. Afanasyev’s activities in an
intelligence unit in the Soviet army for one year in the mid-1980s ever had any
impact on Canada or Canadians or was even directed towards Canada. The intercepted
correspondence originated from military communications of a Canadian ally.
e.
The
military duties performed by Mr. Afanasyev were exercised within the boundaries
of the German Democratic Republic, which was then an ally of the Soviet Union under the Warsaw Pact.
f.
Both the
Soviet Union and the Warsaw Pact Alliance were dissolved in the early 1990s and
thus do not currently impact in any way on the interests of Canada or its NATO allies.
g.
Since the
fall of the USSR, Ukraine has become an independent
democratic state with friendly ties to Canada. Ukraine is currently discussing membership in
NATO. Mr. Afanasyev is now a citizen of Ukraine and not of Russia.
h.
As noted
in his permanent residence application, in the years since his brief military
service in the 80s, Mr. Afanasyev has become a successful lawyer, translator
and business manager in Ukraine;
i.
Mr.
Afanasyev has participated in three interviews with Canadian officials. It is
the information that he volunteered at these interviews which is at the heart
of the visa officer “findings”.
[41]
In light
of the foregoing, it cannot reasonably be said that no submissions were
received or that there was nothing to be forwarded to the Minister. Indeed, the
issues outlined above addressed many of the questions that the Officer
recommended that he dealt with in her fairness letter. In the absence of
specific rules set out in the legislation or in the regulations as to the
procedure to be followed in order to submit a request for ministerial relief
under subsection 34(2) of the IRPA, the Officer could not unilaterally decide
not to forward the applicant’s request to the Minister. The IRPA clearly states
that it is a decision to be made by the Minister, and not by a visa officer (IRPA,
s. 6(3)). According to the CIC Immigration Manual “Evaluating Inadmissibility”
(OP18/ENF2), the role of an officer outside Canada is to :
a.
Provide
verification of the information provided by the applicant;
b.
Obtain any
other information that may be required;
c.
Provide
comments on the submission of the applicant;
d.
Provide to
the applicant any documents not in the applicant’s possession that will be
considered by the Minister of PSEP and provide the applicant an opportunity to
respond;
e.
Forward
the submission to the appropriate section of the National Security Division of
CBSA, NHQ, with a recommendation.
[42]
I am
therefore of the view that the Officer exceeded and overstepped her
jurisdiction in barring the applicant’s ministerial relief and in failing to
forward his request for such relief to the Minister. The applicant had made it
abundantly clear that he wished to seek that relief, and had explained through
his counsel that he would not make further submissions in this respect until a
decision was made pursuant to subsection 34(1). This approach may well have
been misguided, considering that subsections 34(1) and (2) involve two separate
processes to be determined by two different authorities: see Suleyman v.
Canada (Minister of Citizenship and Immigration), 2008 FC 780, at paragraphs
23-35; Ali v. Canada (Minister of Citizenship and Immigration),
2004 FC 1174, at paragraphs 40-42. As a result, the Officer was certainly
entitled to consider that no further submissions were to be considered as none
had been forthcoming after the fairness letter of July 15, 2008. But she could
not reasonably conclude, having regard to all the circumstances of this case
and considering in particular the clear expression of intent by the applicant
to seek ministerial relief, that she would not forward the applicant’s request
to the Minister.
[43]
For all of
the above reasons, this application for judicial review is granted. The
parties did not propose questions for certification, and none arise.
ORDER
THIS COURT ORDERS that this application for judicial
review is granted. The matter shall be sent back for redetermination by a
different visa officer. No serious question of general importance is certified.
“Yves
de Montigny”
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