Date: 20000525
Docket: IMM-4298-98
BETWEEN:
OLENA NEGRIY
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
DAWSON J.
[1] The applicant is a citizen of Ukraine who filed at the Canadian Embassy in Kyiv, Ukraine an application for permanent residence in Canada.
[2] The visa officer who reviewed the application determined that the applicant was inadmissible to Canada and refused her application. The applicant seeks judicial review of that decision.
FACTUAL BACKGROUND
[3] The visa officer, in an affidavit filed in opposition to the application for judicial review, swore that according to standard procedure at Kyiv, an Immigration Programme Officer paperscreened the application and reviewed the information on file. The visa officer also swore that due to the increasing discovery of malfeasance in Kyiv, that is the tendering of fraudulent diplomas and letters of reference and employment, such documents are often verified. This was done in the applicant"s case.
[4] Specifically, the visa officer swore that staff of the Embassy were instructed to verify the applicant"s education and current and past employment. Enquiry letters were sent to the Donetsk State Medical Institute (where the applicant received her education) and to the Sanatorium Arcadia (which the applicant stated was her current employer). As Embassy staff could not locate the past employer, the Ital Medical Centre, a letter was sent to the Donetsk City Administration to learn whether the Ital Medical Centre was or had been registered.
[5] The visa officer swore that:
| 2. When the replies to our enquiries were received, the file was given to me for review and action. I noted that the Donetsk State Medical University confirmed that Ms. Negriy graduated from the University as a doctor. The University, however, reported that there was no record of her having taken or completed the three therapy courses from 1989 to 1992, as she claimed in her application for permanent residence. We received a letter from the Donetsk City Administration stating that the city had no registration for the Ital Medical Centre, only for a firm named Ital which did not report medical services as one of its lines of business. Finally, we received a letter from the Sanatorium Arcadia which reported that they had no record of Ms. Negriy being employed there as a remedial gymnast. |
[6] After reviewing this information, correspondence dated June 6, 1998 was sent to the applicant from the visa officer advising that:
| On your application, you indicated that you graduated from the Donetsk Medical Institute in 1989 with the qualification of physician. We confirmed the issuance of this diploma. You then indicated that you took some additional courses, related to therapy, in 1989, 1990 and 1992 at the same institute. The Donetsk Medical Institute reported that there is no record that you took these courses. This information leads me to believe that the documents you submitted are fraudulent. |
| For employment, you indicated on your application that you were employed from 1990 to 1994 at the Ital Medical Centre in Donestk. We sought to confirm this information. We learned that there is a limited firm registered under the name of Ital but there is no record of the Ital Medical Centre. You recorded on your application that you have been employed since 1995 at the Sanatorium Arcadia. When we checked, the Sanatorium reported that there is no record of your employment since 1995. This information leads me to believe that you do not have the experience of a remedial gymnast or are employed as a physiotherapist. In my opinion, you have submitted fraudulent information and documentation. Therefore, I cannot grant you any units of selection for experience. Zero units for the experience factor is an immediate bar to further processing. |
[7] The visa officer"s letter concluded by advising the applicant that she was to be given an opportunity to respond to those concerns and that if the visa officer did not receive a letter from the applicant within 90 days, the visa officer would make a decision regarding the application on the basis of the available information.
[8] The applicant, in her affidavit in support of the application for judicial review, swore that having received the June 6, 1998, from the visa officer she applied to the Donetsk Medical Institute and received a letter signed by the Rector of the Institute confirming that the applicant had taken the training courses the applicant had indicated in her application and that the Embassy clerk was given the negative answer by mistake. The Rector"s letter was provided to the Embassy.
[9] It appears that the information contained in the Rector"s letter was accepted by the visa officer because in the refusal letter dated July 21, 1998 the visa officer credited the applicant with ten units of assessment in the category of "occupation". Prior to receiving the Rector"s letter, the visa officer in her letter of June 6, 1998 to the applicant, had indicated that "[i]f I were to consider you a practising physician, you would receive zero units for the occupation factor as this occupation is not in demand. Zero units for the occupation factor is an immediate bar to future processing".
[10] The applicant swore that she also provided information from the Chief Doctor of the Sanatorium Arcadia as to her work status and proof that the Ital Medical Centre was liquidated in 1995. The applicant swore that this information was submitted together with a letter from the applicant dated June 25, 1998.
[11] It is not disputed by the visa officer that late in June, 1998, a letter was received, which purported to be from the Sanatorium Arcadia.
[12] This letter confirmed the applicant"s employment at the Sanatorium Arcadia from January 15, 1995 to the date of the letter.
[13] The CAIPs notes prepared by the visa officer on receipt of this correspondence state as follows:
| Letter referred to directly above was received by fax. I compared it to the one we received earlier, dated 30.03.98. The earlier letter is in fact a form with the sanatorium"s letterhead, including name, address, tel. It refers to our request and contains the official seal. As is the custom in Ukraine, the top left corner also contains a stamp which numbers the correspondence and gives the date. The most recent letter is not on letterhead; it has no correspondence number. It is allegedly signed by the same person who signed the first letter, which is not very credible as the first signer referred to our request and numbered her letter. |
| In my opinion, the most recent "confirmation" statement of employment, the receipt of which followed my letter, is self-serving. I am not satisfied that it confirms employment or negates the other information received to date. |
| Refuse. |
[14] In the result, the visa officer refused the application on July 21, 1998 and communicated her decision to the applicant by letter dated July 21, 1998.
[15] The visa officer swore that the applicant"s letter of June 25, 1998 with its enclosures did not reach the visa officer before she arrived at her decision. She swore that:
| 6. With respect to the Applicant"s letter [of June 25, 1998] ... this letter did not come to my attention before I arrived at my decision. It included the second letter from the Sanatorium Arcadia as an attachment, which had already been received earlier by facsimile transmission. When I received the second letter from the Sanatorium Arcadia, I took this to constitute the Applicant"s response to my letter of June 6, 1998 and therefore concluded that I could proceed to make a decision on the Applicant"s application for permanent residence. For the reasons given above, I concluded that the Applicant"s application was not supported by credible evidence of her experience and education, and I therefore refused the application. |
THE ISSUE
[16] At issue in the application is whether or not the visa officer erred in determining that the applicant had not established that she had experience in her intended occupation of remedial gymnast. This, in turn, depends upon the reasonableness of the visa officer"s decision rejecting the second letter from the Sanatorium Arcadia.
STANDARD OF REVIEW
[17] In Hao v. Canada (The Minister of Citizenship and Immigration), [2000] F.C.J. No. 296, Justice Reed reviewed jurisprudence from this Court with respect to the standard of review applicable to the review of a visa officer"s decision. She adopted the standard of unreasonableness simpliciter. I accept Justice Reed"s analysis and adopt the unreasonableness simpliciter standard.
[18] The Court is therefore required to assess whether the visa officer"s decision is reasonable and whether the visa officer"s reasons stand up to a somewhat probing examination.
ANALYSIS
[19] Applying the standard of review of unreasonableness simpliciter, for the reasons which follow I have concluded that the application for judicial review must be allowed.
[20] The visa officer, having given the applicant ninety days to respond to the concerns set out in the letter of June 6, 1998, then proceeded to reach a decision in this matter on July 21, 1998 without the benefit of the applicant"s response.
[21] Further, while the visa officer swore that she made her decision before receiving the applicant"s letter of June 25, 1998 and additional information, there is no explanation as to how it is that the applicant was credited with ten units of assessment for the occupation factor if the information sent by the applicant by letter dated June 25, 1998, received on July 17, 1998, was not before the visa officer when she made her decision. The refusal letter sheds no light on this and is perplexing in that it repeats the earlier concern that the Donetsk State Medical Institute reported that it had no record of the applicant having taken the therapy related courses, yet shows ten units of assessment being awarded in the occupation category.
[22] As to the visa officer"s scrutiny of the impugned letter from the Sanatorium Arcadia, the visa officer apparently neither noted nor considered that the impugned letter appears to bear the official seal of that institution.
[23] Once information was received to the effect that the applicant"s education was as she had initially stated it to be, and once that information was accepted and incorporated into the assessment, on receipt of a letter apparently under seal from the Sanatorium Arcadia purporting to confirm the applicant"s employment, it was not in my view reasonable for the visa officer to reject the applicant"s application as she did.
[24] At the least, having determined that the visa officer"s concerns were not well founded with respect to possible fraudulent information having been provided on the applicant"s educational background, further inquiries should have been directed as to the authenticity of the letter under seal from the Sanatorium Arcadia before it was rejected.
[25] In the result, the decision under review must be set aside.
[26] The applicant was not represented and did not appear at the hearing of this application. Counsel for the respondent did not propose a question for certification. No question will be certified.
"Eleanor R. Dawson"
Judge
Ottawa, Ontario
May 25, 2000
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| COURT NO: IMM-4298-98 |
| STYLE OF CAUSE: NEGRIY OLENA |
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
| DATE OF HEARING: THURSDAY, APRIL 20, 2000 |
| PLACE OF HEARING: TORONTO, ONTARIO |
| REASONS FOR JUDGMENT BY: DAWSON J. |
DATED: TO SPECIFY
APPEARANCES: Mr. Sergey Ambrosimov
For the Applicant
Mr. Kevin Lunney
For the Respondent
| SOLICITORS OF RECORD: Sergey Ambrosimov |
| Barrister & Solicitor |
| 155 Antibes Drive, #612 |
Willowdale, Ontario
| M2R 3G7 |
| For the Applicant |
Morris Rosenberg
Deputy Attorney General of Canada
| For the Respondent |
| FEDERAL COURT OF CANADA |
Date: 200004XX
Docket: IMM-4298-98
Between:
| NEGRIY OLENA |
Applicant
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
REASONS FOR JUDGMENT