Date: 20041208
Docket: IMM-8103-03
Citation: 2004 FC 1716
Toronto, Ontario, December 8th, 2004
Present: The Honourable Mr. Justice Campbell
BETWEEN:
SVITLANA TVASYK
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] As a result of an interview with a Visa Officer on August 20, 2003, Mrs. Svitlana Tvasyk, an Applicant for a visa to visit Canada, was denied the visa. The present judicial review application challenges this decision on a ground that the decision was based on a fundamental misunderstanding.
[2] In July 2002, Mrs. Tvasyk was interviewed by a Visa Officer respecting her application to visit Canada, and was denied the opportunity because she lied in the interview. The background for this lie is that, in April 2002, Mrs. Tvasyk and her husband both applied for a visa, but only Mr. Tvasyk was given one. At the time of the July 2002 interview, Mr. Tvasyk had not yet travelled to Canada, but, for whatever misguided reason, Mrs. Tvasyk said that he had. Once this lie was exposed, Mrs. Tvasyk admitted it, and, as a consequence, her visa was denied.
[3] In the August 2003 interview, in yet another attempt by Mrs. Tvasyk to obtain a visitor's visa, the issue of Mr. Tvasyk's travel was again discussed. I find that the proximate cause of the refusal to grant Mrs. Tvasyk a visa after this interview was a belief on the Visa Officer's part that she again lied on the topic of her husband's travel. I also find that, for the decision under review to withstand this judicial review, the Visa Officer's belief must be clearly substantiated by the record before me.
[4] With respect to substantiation, there is a clear conflict on the record. On the one hand, Mrs. Tvasyk in an affidavit sworn December 12, 2003, states that in the August 20, 2003 interview she was asked why she lied in her previous application, being the interview in July 2002. On the other hand, the Visa Officer in her affidavit sworn in August 2004, states that a new lie was expressed in the meeting of August 20, 2003, and was not a reiteration of the lie expressed in the interview of July of 2002.
[5] I find that the CAIPS notes with respect to the interview on August 20, 2003, and the cross-examination conducted on the Visa Officer's affidavit on November 8, 2004, do not assist in resolving the conflict.
[6] As a result, I find that there is no clear substantiation for the Visa Officer's belief. On this basis, and as a matter of fairness, I find that Mrs. Tvasyk is entitled to a fresh opportunity to make her application for a visitor's visa.
ORDER
Accordingly, I set aside the decision of August 30, 2003, and refer the matter back for redetermination before a different visa officer. With respect to the redetermination, I direct that it be conducted without any regard to the findings of fact made in reaching the decision set aside.
"Douglas R. Campbell"
J.F.C.
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-8103-03
STYLE OF CAUSE: SVITLANA TVASYK
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: DECEMBER 7 , 2004
REASONS FOR ORDER
AND ORDER BY: CAMPBELL J.
DATED: DECEMBER 8, 2004
APPEARANCES BY:
Mario D. Bellissimo FOR THE APPLICANT
Martin Anderson FOR THE RESPONDENT
SOLICITORS OF RECORD:
Mario D. Bellissimo
Ormston, Bellissimo, Younan
Barristers & Solicitors
Toronto, Ontario FOR THE APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada
Toronto, Ontario
FOR THE RESPONDENT
FEDERAL COURT
Date: 20041208
Docket: IMM-8103-03
BETWEEN:
SVITLANA TVASYK
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER