Date: 20071009
Docket: IMM-6605-06
Citation:
2007 FC 1045
Ottawa, Ontario, October 9, 2007
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
YELENA SAKIBAYEVA and
COURTNEY JULIAN KELSHAM DEHN
Applicant(s)
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent(s)
REASONS FOR JUDGMENT AND
JUDGMENT
1.
This is an
application for judicial review by Yelena Sakibayeva and Courtney Dehn challenging a decision
by a visa officer at the Canadian Embassy in Moscow by which Ms. Sakibayeva's request for a
visitor's visa to Canada was denied. Mr. Dehn is a
Canadian permanent resident and he is Ms. Sakibayeva's fiancé. The stated
purpose for Ms. Sakibayeva's visit to Canada was to marry
Mr. Dehn in Calgary.
2.
On the day
of the hearing of this application, counsel for the Respondent advanced two
preliminary procedural arguments. I reserved decision on both matters.
3.
The first
argument was that Mr. Dehn could not represent Ms. Sakibayeva at the hearing
because they had failed to establish any basis for being excused from the
requirements of Rule 119 of the Federal Courts Rules, SOR/98-106. On this issue, the
Respondent is correct. Neither Ms. Sakibayeva nor Mr. Dehn offered any
evidence which would exempt Ms. Sakibayeva from the requirement that she be
represented by a solicitor. In the result, Mr. Dehn was not entitled to
represent her interests before the Court notwithstanding her prior written
authorization. A private arrangement of the sort made here between Mr. Dehn
and Ms. Sakibayeva is not sufficient to allow a party to litigation in this
Court to ignore the requirements of Rule 119.
4.
The second
argument advanced on behalf of the Respondent was that Mr. Dehn had no legal
standing as a party to this application. While this argument has considerable
substantive strength, I am not prepared to order that Mr. Dehn be removed as a
party to the application at this very late stage in the process.
5.
This
application was commenced on December 15, 2006 and Mr. Dehn was named as a
party at that time. At least one other preliminary motion was resolved by the
Court by Order dated April 26, 2007. The Respondent could have moved at any
time under Rule 104(1)(a) to have Mr. Dehn removed as a party and failed to do
so. Indeed, this argument was not brought before the Court by way of a formal
motion by the Respondent at any time. It was essentially raised as an
invitation to the Court to remove Mr. Dehn as a party pursuant to the Court’s
inherent authority. While I do not doubt that the Court has an inherent
discretion to remove a party, I am not disposed to exercise that authority in
these circumstances. Generally the issue of a party’s standing ought to be
resolved with a proper and timely motion brought under Rule 104. To leave this
issue essentially to the eve of the hearing on the merits is to create the
potential for significant prejudice. Ms. Sakibayeva presumably had an
expectation that Mr. Dehn, as a party, would be able to argue the merits of
their joint application even if he had no right to represent her before the
Court. Had the issue of Mr. Dehn's
standing as a proper party to the application been resolved in favour of the Respondent
at an earlier point, Ms. Sakibayeva would have had the option of retaining
counsel to represent her. This was an option that would be effectively
foreclosed if Mr. Dehn was removed on the day of the hearing of the
application. While an adjournment might have been an option, it would not be
fair to impose upon Ms. Sakibayeva a further lengthy delay in resolving this
matter because the Respondent failed to raise the standing issue at an earlier
point in the proceeding.
6.
The
decision that is challenged by Mr. Dehn on this application was apparently
rendered by a letter sent on December 8, 2006. Although there are indications
in the Record that a formal decision letter was sent to Ms. Sakibayeva from
the Canadian Embassy in Moscow, neither party was able to produce a
copy. Mr. Dehn claims that no such letter was ever received and that Ms. Sakibayeva
was first notified of the decision by e-mail from the Embassy. Counsel for the
Respondent asserts that a copy of the official decision letter was not
maintained in the Embassy file apparently for reasons of administrative
efficiency. Nothing of consequence turns on this point because other evidence
of the decision is available in the Record including the CAIPS notes maintained
by the visa officer. Those notes offer the following reasons for refusing a
visa to Ms. Sakibayeva:
Appl claims she is self-employed but no
proof provided of any business she operates. Claims to own property but no
proof provided. Has produced bank statement dated 8NOV06 indicating she has
balance of 14K+ USD; however, source of funds not obvious. Wants to marry
fiancé in CDA but gives no reason for wanting to do so, since her family
remains in Kazakhstan. Appl has no travel history,
no obvious source of employment or valid reason, in my opinion, to marry in
CDA. Am not satisfied Appl satisfies TRV requirements. Application refused.
7.
Despite
the multitude of arguments advanced by Mr. Dehn, there is only one matter that
is of any legal concern. In a response to a written request from Ms. Sakibayeva,
the visa officer provided the following e-mail reply on December 13, 2006:
According to the Canadian Immigration
and Refugee Protection Act and Regulations, applicants for temporary
resident visas must establish that they have a genuine intent to enter Canada
for a temporary purpose only and that as temporary residents, they will not
engage in unauthorized employment or study or attempt to remain permanently in Canada. Applicants must also show
that they have the necessary resources for the stay envisaged, and that they
are willing and able to return to their own country. The officer must refuse
to issue a visa if any of these requirements are not met. In seeking to come
to a fair decision the officer takes into consideration all factors such as the
following: the applicant’s ties to their homeland, employment, family
ties, future plans, previous travel abroad, reasons for visiting Canada and incentives to return
home.
Ms. Sakibayeva Yelena made an
application for a temporary resident visa on November 23, 2006, and her
application was finalized on December 5, 2006. Ms. Sakibayeva Yelena was
refused issuance of a visa as I was not satisfied that Ms. Sakibayeva
Yelena was a genuine temporary resident who would leave Canada at the end of her authorized
stay. When reviewing the file I took into consideration the fact the
applicant is not well enough established in Russia personally, professionally or
financially to be a genuine visitor to Canada. I considered the degree of Ms.
Sakibayeva’s establishment in Russia, her previous travel history and her
reason for travel to Canada. Given that Ms. Sakibayeva
Yelena has very strong ties to Canada and all her family remains in Kazakhstan.
I was not convinced that she would have
compelling reasons to return to Russia at the end of her authorized stay. I
hence determined that Ms. Sakibayeva Yelena did not meet the requirements for
issuance of a visa to visit Canada.
[Emphasis added]
8.
The
problem with the above explanation is that it contains a significant factual
error insofar as it identifies Ms. Sakibayeva’s place of residence as Russia. Her visa
application clearly and correctly identified her place of residence as Kazakhstan. This was
also the place where her mother and other members of her immediate family
resided and where she also claimed to have some economic ties.
9.
Counsel
for the Respondent argues that the visa officer’s post-decision e-mail is both
irrelevant and inadmissible. It is described as a mere courtesy letter which
did not form part of the decision. Reliance is placed on previous decisions of
the Court which have cast doubt on the relevance of post-decision evidence,
including affidavits deposed by the decision-maker to supplement or to explain
a decision: see Quiroa v. Canada (Minister of Citizenship and Immigration),
2007 FC 495, 157 A.C.W.S. (3d) 631 and Rafieyan v. Canada (Minister
of Citizenship and Immigration), 2007 FC 727, 158 A.C.W.S. (3d) 982.
10.
It
seems to me, however, that the e-mail in this case does not give rise to the
kinds of reasonable concerns that arise when an applicant seeks to rely upon
evidence that was not before the decision-maker or where the decision-maker, in
furtherance to the litigation, deposes an affidavit to elaborate on or to
recast the decision. First of all, the e-mail is not new evidence; it is a
statement by the decision-maker made contemporaneously with the decision by
which the decision is explained. Because the statement was not made in
contemplation of litigation, pending or extant, and because it was made
essentially against interest, it is inherently trustworthy.
11.
I
do not read the authorities as going so far as to declare that ex post facto
affidavits by a decision-maker are inadmissible in judicial review
proceedings. Clearly they have a place as a means to address issues of
fairness, bias and jurisdiction. According to my colleague Justice Luc Martineau
in Kalra v. Canada (Minister of Citizenship and Immigration),
2003 FC 941, [2003] F.C.J. No. 1199, such an affidavit may also have some value
to "elaborate" on other information contained within a
decision-maker's notes "but not as a late explanation for the
decision".
12.
I
consider the visa officer’s December 13th e-mail to be indistinguishable from
CAIPS notes, which are frequently relied upon as forming part of a decision or
as reasons for a decision. The inherent reliability of CAIPS notes comes from
their relative contemporaneity with
the decision, albeit that they may sometimes be created after the decision was
made: see Kalra, above, at para. 21. In my view, this e-mail is
admissible and reliable and it should be considered in assessing whether the
decision to deny Ms. Sakibayeva’s visa was patently unreasonable.
13.
Counsel
for the Respondent concedes that the visa officer's December 13th
e-mail incorrectly ascribed Russian residency to Ms. Sakibayeva but he asserts
that it was an inconsequential typographical mistake made after the decision
was rendered. I am not prepared to accept this characterization of the
mistake. The context of the visa officer's statement concerning Ms. Sakibayeva's supposed
Russian residency is not indicative of a typographical error. In three
separate places, she is described as a resident of Russia and yet her family
are correctly noted to be residents of Kazakhstan. The clear
inference arising from the e-mail is that Ms. Sakibayeva's motivation
to return to Russia was substantially weakened by the fact that her family
resided elsewhere, specifically in Kazakhstan.
14.
There
is also nothing in the CAIPS notes which is inconsistent with the visa officer's explanatory
e-mail or which would suggest that the residency mistake only arose ex post
facto to the actual decision. In the absence of any evidence showing that
the residency finding was anything other than what it was represented to be, I
must take it at face value. In other words, it is a clear factual mistake
going to a material issue bearing on the likelihood that Ms. Sakibayeva would
leave Canada upon the
expiry of her visitor's visa. Although the visa officer gave other reasons for
refusing a visa to Ms. Sakibayeva, I am in no position to determine whether the
same decision would have been reached in the absence of this error. I am
satisfied, though, that this factual mistake is of sufficient import to render
the decision patently unreasonable.
15.
I
would be remiss if I did not comment on the tone and content of Mr. Dehn's written
submissions to the Court. His materials contain numerous inflammatory
characterizations of the visa officer and the Department. Those accusations
are entirely gratuitous, demeaning and unwarranted and they reflect poorly on
Mr. Dehn's judgment and objectivity. There is not a scintilla of evidence in
the Record to support his opinions that the decision-maker in this case was a
compulsive liar, inept, incompetent, fanatical or a religious misogynist. His
description of the visa refusal decision as "stupid" and his
assertion that it was based on "targeted malice and discrimination against
Kazakhstan
citizens" are equally unwarranted and inappropriate. Ordinarily the type
of objectionable statements made by Mr. Dehn would justify an award of costs
against him. In this instance, however, an award of costs in the amount of
$500.00 has already been made against him for his inflammatory pleadings in the
context of a pre-hearing motion. In my view that is a sufficient deterrent in
the circumstances.
16.
The
Respondent has not proposed a certified question and no question arises from
these reasons.
JUDGMENT
THIS COURT ADJUDGES that this application for judicial review is
allowed with the matter to be remitted to a different decision-maker for reconsideration
on the merits.
“ R. L. Barnes ”
Email this Content