Federal Court Decisions

Date: 20020130

Docket: IMM-1011-01

Neutral citation: 2002 FCT 114

Ottawa, Ontario, Wednesday the 30^th day of January 2002

PRESENT:            The Honourable Madam Justice Dawson

BETWEEN:

                                     ANDREI PIVTORAN

                                                                                                     Applicant

                                                    - and -

   THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                 Respondent

                     REASONS FOR ORDER AND ORDER

DAWSON J.

[1]    Mr. Andrei Pivtoran brings this application for judicial review from the February 19, 2001 decision of an immigration officer that he not be exempted on humanitarian and compassionate grounds from the requirement found in subsection 9(1) of the Immigration Act, R.S.C. 1985, c. I-2 ("Act") that he apply for and obtain an immigrant visa prior to coming to Canada.

THE FACTS

[2]    In 1996, Mr. Pivtoran applied in Kiev for, and was granted, a visitor's visa which enabled him to come to Canada. When applying for that visa he advised Canadian immigration authorities that he was married and had one child.

[3]    After Mr. Pivtoran arrived in Canada, he submitted an application for permanent residence in Canada through the visa office in New York. At that time he advised immigration officials, both in his written application and during his interview, that he was not married and had no children.

[4]    Mr. Pivtoran's application for permanent residence was refused on the ground that he obtained only 61 units of assessment in circumstances where generally a minimum of 70 units of assessment is required. The designated immigration officer also noted that Mr. Pivtoran's application was less than credible because of the misstatements he had made with respect to his marital status and his occupation when he had applied for the visitor's visa.

[5]                 Subsequently, on March 12, 2000, Mr. Pivtoran married a permanent resident of Canada. Mr. Pivtoran then submitted an application for permanent residence in Canada on humanitarian and compassionate grounds, under subsection 114(2) of the Act, together with a sponsorship application from his wife.

[6]                 On October 31, 2000, Mr. Pivtoran and his wife were interviewed by an immigration officer who, by written decision dated February 19, 2001, refused Mr. Pivtoran's application.

[7]                 The basis for that decision was stated by the immigration officer as follows:

AFTER REVIEWING THE CIRCUMSTANCES OF THE CASE I AM NOT SATISFIED THAT THERE ARE SUFFICIENT GROUNDS FOR H & C [humanitarian and compassionate] CONSIDERATION. MR PIVTORIAN PROVIDED INFORMATION TO A GOVERNMENT OFFICIAL THAT HE WAS MARRIED AND HAD A CHILD. IT SERVED HIS PURPOSE TO DO SO THEN. HE WAS GIVEN A CVV [Canadian Visitor's Visa] BASED ON INFORMATION GIVEN IN KIEV WHICH INCLUDES HIS MARITAL STATUS. IT NOW SERVES HIS PURPOSE TO DECLARE THAT HE HAD NEVER BEEN MARRIED. HOW DO WE DECIDE WHICH OF HIS "TRUTHS" TO BELIEVE. HE WAS GIVEN THE OPPORTUNITY TO EXPLAIN THE DISCREPANCIES BUT HIS EXPLANATION THAT HE DID IT TO OBTAIN A CVV IS NOT SUFFICIENT TO ALLEVIATE THE DOUBT THAT HE IS NOT IN FACT, FREE TO MARRY.

THE ISSUE

[8]                 The narrow issue raised in this application for judicial review is whether, in so concluding, the immigration officer breached the duty of fairness owed to Mr. Pivtoran.

ANALYSIS

[9]                 I accept on the record before me that during the interview with Mr. Pivtoran the immigration officer raised with him the fact that he had stated on his application for a visitor's visa in 1996 that he was married and had one child, and that Mr. Pivtoran responded that he had filed a statutory declaration with the visa office in New York which explained why he had not been truthful on his visitor's visa application and had also filed with that office a search certificate from the Ministry of Justice in the Ukraine. Mr. Pivtoran also advised the immigration officer that he had brought copies of those documents to his interview, but the officer declined to look at them, stating that she would request additional documentation later if necessary.

[10]            I also accept that the immigration officer advised Mr. Pivtoran that she would contact the consulate in New York in order to establish whether the information which Mr. Pivtoran had given to the consulate in New York was consistent with his statements to the immigration officer.

[11]            The officer's FOSS notes confirm that, because of the discrepancy in the information provided concerning Mr. Pivtoran's marital status, the visa offices in both New York and Kiev were contacted for information from their files. The FOSS notes also show that a decision on Mr. Pivtoran's application was deferred by the immigration officer pending responses from those visa offices.

[12]            Notwithstanding the advice to Mr. Pivtoran and the requests to the visa offices, the immigration officer then made her decision without reference to the information in the New York file. There is no indication in the tribunal record that material was ever received from the New York office.

[13]            Mr. Pivtoran has put evidence before the Court confirming that he provided information to the consulate in New York including a certificate from the Ministry of Justice in the Ukraine confirming that Mr. Pivtoran was not married in the Kitsman district of the Ukraine between 1988 and 1998.

[14]            In Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, when considering the duty of fairness owed when making a decision on humanitarian and compassionate grounds Justice L'heureux-Dubé wrote for the majority, at paragraph 32, as follows:

... the circumstances require a full and fair consideration of the issues, and the claimant and others whose important interests are affected by the decision in a fundamental way must have a meaningful opportunity to present the various types of evidence relevant to their case and have it fully and fairly considered.

[15]            On the facts before me I have concluded that the immigration officer erred in rendering a decision without reference to either the information contained in Mr. Pivtoran's immigration file in New York or the documentation proffered by Mr. Pivtoran at his interview with the immigration officer.

[16]            The certificate from the Ministry of Justice of the Ukraine contained information which was relevant to the issue of the legitimacy of Mr. Pivtoran's marriage in Canada and the officer's conclusion that she was not satisfied that Mr. Pivtoran was at law free to marry. By making her decision before receiving and considering that evidence the officer breached the duty of fairness because Mr. Pivtoran was not given a meaningful opportunity to present relevant evidence and to have it fully and fairly considered.

[17]            For these reasons, the application for judicial review will be allowed. Neither counsel posed a question for certification and no question is certified.

ORDER

[18]            The application for judicial review is allowed and the decision of the immigration officer dated February 19, 2001 refusing the applicant's application for exemption on humanitarian and compassionate grounds from subsection 9(1) of the Immigration Act is set aside. The matter is remitted for redetermination before a different immigration officer.

"Eleanor R. Dawson"

                                                                                                           Judge