Docket: IMM-3847-02
Citation: 2003 FCT 701
OTTAWA, Ontario, this 3rd day of June, 2003
PRESENT: The Honourable Mr. Justice Rouleau
BETWEEN:
NADEZHDA CHIBUTAEV
Applicant
AND:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
ROULEAU, J.
[1] This is an application pursuant to section 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) for judicial review of the decision of a visa officer, dated August 7, 2002, wherein the applicant's permanent residence application was refused.
[2] On November 8, 2000, the applicant, Nadezhda Chibutaev, applied for permanent residence in Canada at the Canadian Embassy in Tel Aviv, Israel. She applied as an independent immigrant and indicated her intended occupation as Speech-Language Pathologist (NOC 3141.2).
[3] On March 5, 2002, the applicant attended an interview with a designated immigration officer ("visa officer"). On August 7, 2002, the application was rejected.
[4] In her affidavit, the visa officer explained that she did not ascribe any weight to a reference letter indicating that the applicant worked as a Speech-Language Pathologist, because she had "serious enough doubts as to the sincerity of the claim." She also found the alleged 14 months of pathologist experience at the Lingua Centre and the 4 months experience at the Svetlana Day Care Centre not credible.
[5] This explanation is not substantiated by any evidence. Neither the visa officer's decision nor the CAIPS notes indicate that her decision was based on a finding that the evidence was not credible. Despite this glaring absence in the notes and decisions, the visa officer explains in her affidavit that she considered the applicant's experience as a Speech-Language Pathologist in Russia, including the letter in support, and that she found that document and the applicant's claim to have the stated experience not credible. I find it questionable that this explanation is offered in the visa officer's affidavit when it is not stated anywhere in her CAIPS notes or in the decision. Since it is not substantiated by the evidence, I am rejecting that explanation.
[6] Since the "credibility finding" is the main reason offered in support of the reasonableness of the impugned decision, and since I have rejected that explanation as unsubstantiated in the evidence, I therefore find that the visa officer's decision was patently unreasonable.
[7] Having determined this matter as above, I need not address the other issues raised in this judicial review application.
ORDER
THIS COURT ORDERS that the application of Nadezhda Chibutaev for permanent residence in Canada be sent back for redetermination by a different visa officer under the provisions of the Immigration and Refugee Protection Act, S.C. 2002, c. 27.
JUDGE
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3847-02
STYLE OF CAUSE: NADEZHDA CHIBUTAEV
- and - Applicant
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: WEDNESDAY , MAY 14, 2003
REASONS FOR ORDER : HON. JUSTICE ROULEAU
APPEARANCES:
Mr. Frederick S. Wang FOR THE APPLICANT
Ms. Amina Riaz FOR THE RESPONDENT
SOLICITORS OF RECORD:
Turner Michener
Toronto, Ontario FOR THE APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada FOR THE RESPONDENT