Date: 19980720
Docket: IMM-3383-98
BETWEEN:
SERGEI STRIZHKO and LARISA GUBINSKAIA,
Applicants,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
DUBÉ J :
[1] This application under section 18.2 of the Federal Court Act ("the Act") seeks an interim order requiring the respondent ("the Minister") to permit the applicants' two sons, Ilya and Sergei Gubinsky, to join them in Canada until final disposition of this application or until it has been mooted by issuance of immigrant visas. The motion also seeks to change the style of cause to Nikolay Strizhko and Larisa Gubinskaia v. M.C.I. That second branch of the motion is granted and the new style of cause will appear on any further documents.
[2] The main ground for the motion is that Ilya Gubinsky has been ordered to report for conscription into the Russian Army and his immigrant-visa will be forfeited unless he enters Canada before he enters the Russian Army. The Minister has been aware of this issue since November 1997, had promised to resolve it on February 9, 1998 but, made various shifting demands, all of which were met. On June 23, 1998, Howard Martin Spunt, Counsel and Immigration Program Manager at the Canadian Consulate General at Detroit, Michigan, USA, informed the applicants' counsel that he was not prepared to authorize a permit in this case. The grounds for refusal were outlined on June 25, 1998, by Elaine Cooke, Case Management Officer, at the Department in Ottawa. The following three paragraphs from her letter outline the reasons why the Minister's Permit was not granted:
| According to our visa officials in Moscow who are familiar with the subject of military service for Russian men of Mr. Gubinsky's age, except for prescribed exemptions, e.g. education, health, there is compulsory military service for Russian men of Mr. Gubinsky's age. He and his parents would have known of this at the time they decided to leave for Canada. If Mr. Gubinsky is conscripted into the Russian Army, he cannot, in current conditions, which are not likely to change any time soon, be sent to Chechnya because there are no Russian federal authorities in Chechnya, i.e. no Russian military, police, judicial or administrative presence. He might be sent near Chechnya, but again, there is no military conflict in the area. |
| With respect to the treatment of Russian servicemen, the standard of living of Russian servicemen may not be at par with that in the Canadian army but it is not intolerable. There may be some favouritism whereby sons of generals or very connected people might be afforded "cushier" posts, but there is no reason to believe that the subject will be singled out for any particular harsh conditions. For your information, the Canadian visa officials in Moscow do not issue Minister's Permits in order to allow the applicants to evade military service. |
| I have thoroughly reviewed the information received from Mr. Spunt, you, and Canadian visa officials in Moscow concerning this request for a Minister's Permit and concur with Mr. Spunt's decision. I am satisfied that he rendered his decision concerning the issuance of the Minister's Permit only after very careful consideration of the circumstances of the request. |
[3] Thus, while the applicants (the parents) remain in Canada under lawful visitors status, their sons are still in Kyrgyzstan. Ilya is hiding in the mountains because the police have frequently come to their apartment seeking to arrest him and to turn him over to the Russian Army. The applicants are clearly worried that their eldest son may face physical and mental abuse if inducted into the Russian Army. According to some documentary evidence, Russian conscripts are poorly housed, malnourished and at times brutally assaulted. Obviously, that perception is not shared by the Minister as outlined in Mrs. Elaine Cooke's letter of June 25, 1998.
[4] The applicants are also fearful that should Ilya be drafted into the Russian Army before coming to Canada he will be excluded from his parents' application because he is twenty years old and will have been more than one year away from school since attaining the age of nineteen, thus would no longer qualify as a dependent son under subsection 2(1) of the Immigration Regulations.
[5] I share the applicants' view that there has been much bureaucratic procrastination in the processing of the Minister's Permit. As far back as November 21, 1997, the applicants' counsel had advised Mr. Spunt that Ilya had been ordered to report for induction into the Russian Army. On May 28, 1998, the Canada Security Intelligence Service advised counsel that it had not yet received any request from the Minister seeking a security clearance for the applicants. Throughout that period, the applicants had complied with the successive requests for information sought by the officials.
[6] The applicants submit that the officials did not conform with subsection 3(c) of the Immigration Act which declares that Canadian immigration policy shall be designed and administered so as to facilitate the reunion in Canada of Canadian citizens and permanent residents with their close relatives from abroad. The applicants have submitted all legitimately required material and since the officials found they met the selection criteria, Ilya should be allowed into Canada before he is inducted into the Russian Army.
[7] Counsel for the Minister does not deny the factual situation and, in fact, did not file a respondent's record (because of the short delay and mortality in the family of his colleague who was acting in this case). The sole argument tendered by the respondent's counsel is to the effect that this Court does not have the jurisdiction to grant the instant motion.
[8] It is a valid argument. Section 18.2 of the Act provides that the Trial Division of this Court may make such interim orders as it considers appropriate pending the final disposition of an application for judicial review. However, it cannot be used as a vehicle to by-pass the judicial review stipulated under section 18.1 of the Act. That section enables this Court to order a federal board, commission or other tribunal to do any act or thing it has unlawfully failed or refused to do or has unreasonably delayed in doing.
[9] The instant motion is substantially an attack on Mr. Spunt's decision of June 23, 1998, refusing to authorize a permit in the instant case. As mentioned earlier, grounds for that decision are outlined in Mrs. Elaine Cooke's letter of June 25, 1998: "the Canadian visa officials in Moscow do not issue Minister's Permits in order to allow the applicants to evade military service". Undoubtedly, it is within the Minister's discretion to issue or not to issue a Minister's Permit. Of course, that discretion must be exercised in a reasonable manner. In my view, it is not patently unreasonable for the Minister to refuse a permit to an applicant seeking to evade military service in his own country. To decide otherwise would send an open invitation to millions of young men all over the world to apply for such a permit.
[10] Counsel for the applicants referred to a decision of my colleague Madame Justice Tremblay-Lamer who granted an application for judicial review on June 15, 1998 in Andrei Abramov and The M.C.I.1. The applicant Abramov, a citizen of Russia, fled his home country to evade military service. He alleged that if he returned to Russia, he would be persecuted for having avoided military service. The Convention Refugee Determination Division of the Immigration and Refugee Board ("the Board") was not convinced that this would be the case, relying on a TASS article whose source was a General of the Russian Army. The learned judge stated that the Board should have explained why it gave more weight to the evidence of a General instead of the evidence from other sources. She quashed the Board's decision and referred the matter back to a differently constituted panel for redetermination. However, she proceeded by way of judicial review under section 18.1 of the Act and not by way of an interim order under section 18.2.
[11] Although I can very well appreciate the anxiety of parents of a son inducted into the Russian Army, I cannot see how this Court would be empowered to disregard the discretion of the Minister (or of an authorized official) without the benefit of a judicial review of his decision and to order him to issue forthwith a temporary permit to allow a conscript to evade military service. Counsel for the respondent has agreed to an expedited judicial review under section 18.1 of the Act should the applicants be interested in following that route.
[12] Since this application constitutes a novel approach I will certify the following question as being of general importance.
| "May the Trial Division under section 18.2 of the Federal Court Act make an interim order compelling the Minister to grant a temporary permit to allow a son to join his immigrant parents in Canada and to enable him to evade military service in his country where the Minister has already refused to issue such a permit? |
OTTAWA, Ontario
July 20, 1998
Judge
__________________1 IMM-3576-97, June 15, 1998.