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Date: 20250221 |
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Docket: IMM-12582-23 |
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Citation: 2025 FC 353 |
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Toronto, Ontario, February 21, 2025 |
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PRESENT: The Honourable Madam Justice Heneghan |
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BETWEEN: |
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NATALIIA KHRAMOVA |
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Applicant |
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and |
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION |
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Respondent |
REASONS AND JUDGMENT
[1] Ms. Nataliia Khramova (the “Applicant”) seeks judicial review of the decision of an officer (the “Officer”
), refusing her application for a multiple-entry visitor visa, on the grounds of inadmissibility pursuant to paragraph 34(1)(d) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the “Act”
).
[2] The Applicant is a citizen of Russia. She trained as an engineer in Russia and was hired in 1983 to work in the community of Pavlograd, in the Ukrainian Soviet Socialist Republic.
[3] The Applicant gave birth to a child in 1984 and took maternity leave of 20 months. She gave birth to a second child in 1989 and again took maternity leave of 38 months.
[4] In the course of her work, the Applicant made changes in design plans that had been prepared by other people. In some cases, the plans in question related to the 15D339 SRM engine, which was used in the Soviet Union’s Intercontinental Ballistic Missiles (“ICBMs”
).
[5] The Officer determined that the Applicant’s work fell within the scope of “danger to the security of Canada”
as discussed by the Supreme Court of Canada in its decision in Suresh v. Canada (Minister of Citizenship and Immigration) [2002] 1 S.C.R. 3.
[6] The Applicant now argues that the Officer committed a breach of procedural fairness by failing to disclose the documentary evidence relied on, specifically an article in a law journal that is not included in the Certified Tribunal Record, and information purportedly contained in a website of her former employer, Yuzhnoye Design Office (“Yuzhnoye”
), that is inaccessible.
[7] The Applicant also submits that the decision is unreasonable because the Officer included the time she spent on maternity leave in calculating the length of her employment with Yuzhnoye.
[8] Any issue of procedural fairness is reviewable on the standard of correctness; see the decision in Canada (Citizenship and Immigration) v. Khosa, [2009] 1 S.C.R. 339.
[9] Following the decision in Canada (Minister of Citizenship and Immigration) v. Vavilov, [2019] 4 S.C.R. 653, the merits of the decision are reviewable on the standard of reasonableness.
[10] In considering reasonableness, the Court is to ask if the decision under review "bears the hallmarks of reasonableness — justification, transparency and intelligibility — and whether it is justified in relation to the relevant factual and legal constraints that bear on that decision"
; see Vavilov, supra at paragraph 99.
[11] In my opinion, on the facts of this case, the Applicant has shown a breach of procedural fairness arising from the absence from the CTR of the article referred to by the Officer. The Officer apparently relied on this article to find the Applicant inadmissible to Canada on security grounds. I refer to following extract from the reasons:
According to 1982 article titled from the New York Law School Journal of International and Comparative Law, workers in the Soviet Union had some level of discretion with regards to their place of employment.
[12] In written submissions, the Applicant refers to the decision in Togtokh v. Canada (Citizenship and Immigration), 2018 FC 581.
[13] The decision in Togtokh, supra parallels the present case. The findings of the Officer seem to rely on the article from a New York law journal but the article is not contained in the Certified Tribunal Record. I agree with the Applicant that, in this case, this gap amounts to a breach of procedural fairness. It is not necessary for me to address the other arguments raised by the Applicant.
[14] In the result, the application for judicial review will be allowed and the matter remitted to another officer for re-determination. There is no question for certification.
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