Date: 20090603
Docket: IMM-528-08
Citation: 2009 FC 581
Toronto, Ontario,
June 3, 2009
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
VITALI MALKINE
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Vitali Malkine’s
application for a single entry Temporary Resident Visa was refused as a result
of a visa officer’s determination that Mr. Malkine was a person described in
paragraphs 37(1)(a) and 37(1)(b) of the Immigration and Refugee Protection
Act, S.C. 2001, c. 27. The officer found that Mr. Malkine was inadmissible to Canada for being a member of a group engaged in organized or
transnational crime.
[2]
The respondent
has conceded that Mr. Malkine was denied procedural fairness in connection with
his application for a visa, as he was not given any opportunity to address the
visa officer’s concerns prior to a negative decision having been made in
relation to his visa application. I agree that this amounted to a denial of
procedural fairness. As a consequence, Mr. Malkine’s application for judicial
review will be allowed.
[3]
Where the parties
still disagree is in relation to the issue of costs. I have also received
submissions from the parties in relation to the form that the order remitting
the matter for re-determination should take.
Costs
[4]
Mr. Malkine’s
lengthy history with Canadian immigration authorities was reviewed in my
decision dealing with his request for the appointment of a special advocate, in
the context of the respondent’s motion under section 87 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27, and need not be repeated here: see Malkine v.
Canada (Minister of Citizenship and Immigration), 2009 FC 496, at paras. 6
- 10.
[5]
Mr. Malkine
submits that because of this history, he should be entitled to his costs
associated with this application. Moreover, he argues that it is clear from the
record that the respondent intentionally and purposefully set out to deny him
an interview, and to deny him procedural fairness in this matter.
[6]
Mr. Malkine’s
counsel was advised by letter dated October 31, 2008 that the respondent
was prepared to consent to the setting aside of the visa officer’s decision,
submitting that it was not necessary for Mr. Malkine to have proceeded with
this matter. The respondent further contends that there is nothing in the
evidence that would support Mr. Malkine’s allegations of intentional misconduct
on the part of the respondent, and that it is not appropriate to look at what
happened in previous cases in deciding whether or not to award costs in this
matter.
[7]
Costs are
not generally awarded in immigration matters unless there are “special reasons”
to do so: see Rule 22, Federal Courts Immigration and
Refugee Protection Rules, SOR/93-22.
[8]
Mr. Malkine has already
received an award of costs in his favor in at least one of his earlier
proceedings: see Malkine v. Canada (Minister of Citizenship and
Immigration) (1999),
177 F.T.R. 200, at para. 32. At least one other application for judicial review
was allowed on consent, and the costs associated with that proceeding would
presumably have been a matter for negotiation between the parties. In other
proceedings commenced by Mr. Malkine, costs were awarded against him: see Malkine
v. Canada (Minister of Citizenship and
Immigration), 2007
FC 573, at para. 19.
[9]
In these
circumstances, I am not prepared to go back and consider what may have gone on
in past proceedings, in deciding whether Mr. Malkine should have his costs in
connection with this application.
[10]
There is also no
evidence before me from which I could reasonably conclude that the respondent
acted intentionally or in bad faith, in denying Mr. Malkine an interview prior
to rendering a decision in relation to his application for a Temporary Resident
Visa.
[11]
Finally, the fact
that the respondent offered to resolve this matter on consent early in the
process militates against an order of costs being made in Mr. Malkine’s favour
in this matter.
[12]
In these
circumstances, I am not persuaded that there are “special reasons” that would
justify the making of an award of costs, and I decline to do so.
Directions
[13]
I agree with Mr.
Malkine that it would be helpful to provide directions to the visa officer
charged with re-determining this matter, in an effort to avoid similar problems
in the future. Indeed, I do not understand the respondent to object to this.
[14]
As a consequence,
an order will issue remitting the matter to a different visa officer for
re-determination with the direction that Mr. Malkine be provided with the
substance of the allegations against him, other than the matters that have been
redacted from the Certified Tribunal Record in this proceeding in accordance
with the provisions of section 87 of IRPA.
[15]
In the event that
there are any new, or additional, allegations against Mr. Malkine that will be
relied upon by the visa officer in the re-determination process, Mr. Malkine is
to be provided with the substance of those additional allegations, unless that
information is subject to a statutory or other privilege.
[16]
Finally, Mr.
Malkine must be provided with an opportunity to respond to the allegations
against him, prior to a decision being made in relation to his application for
a Temporary Resident Visa.
Certification
[17]
Neither party has
suggested a question for certification, and none arises here.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that:
1. This
application for judicial review is allowed, and the matter is remitted to a
different visa officer for re-determination in accordance with these reasons;
2. Mr. Malkine is
to be provided with the substance of the allegations against him, other than
the matters that have been redacted from the Certified Tribunal Record in this
proceeding, prior to a decision being made in connection with his application
for a Temporary Resident Visa;
3. Mr. Malkine is also to be
provided with the substance of any new or additional allegations against him
which will be relied upon by the visa officer in the re-determination process,
unless that information is subject to a statutory or other privilege;
4. Mr. Malkine shall be
provided with an opportunity to respond to the allegations against him, prior
to a decision being made in relation to his application for a Temporary
Resident Visa;
5. There shall be no order of costs; and
6. No serious question of general importance is
certified.
“Anne Mactavish”
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