Halifax, Nova Scotia, May 17, 2006
PRESENT: The Honourable Justice Johanne Gauthier
BETWEEN:
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] Mr. Machalikashvili seeks judicial review of the decision of the visa officer who rejected his application for permanent residence as a non accompanying family member of a refugee under the One Year Window of Opportunity program.
[2] His wife and two children were granted refugee status in October 2004. There is no indication that Mr. Machalikashvili did not actually meet the conditions set out in subsection 141(1) of the Immigration and Refugee Protection Regulations, S.O.R. 2002-227 as amended.
[3] In his decision dated July 26, 2005, the visa officer states:
I am not satisfied that you are not inadmissible to Canada. I did not find you to be very direct or forthcoming in responding to questions during the interview, especially those that dealt with your possible involvement in combat in the wars in Chechnya. You stated that you were not involved in fighting during either war, which directly contradicts statements that your wife made during her resettlement interview. When confronted with this apparent contradiction, you were at times evasive and unable to come up with a satisfactory explanation for this contradiction. Your behaviour at interview also changed and seemed to indicate that you were nervous. I am not satisfied that you were being truthful in answering questions.
When asked whether you wife knew if you were involved in fighting or not, you stated that you never told her if you were involved or not. On several other occasions you avoided giving direct answers to direct questions. I did not find your explanations for your absences from home and the fact that groups of your friends would come to your house with weapons to be very credible. When asked whether these friends were armed, you denied it at first, and when confronted with your wife's information you changed your story.
Finally, it became apparent during the interview that your wife had stated during her interview that she had lost contact with you while in fact at the time you were living in Turkey and had been in contact with her. I am not satisfied that you were being truthful during the interview and I am not satisfied you are not hiding your involvement in activities that would make you inadmissible to Canada.
[4] The applicant raised many issues which in his view constitute reviewable errors including breaches of procedural fairness (inadequate and insufficient reasons, use of extrinsic evidence such as, interview notes of Mrs. Machalikashvili, without providing a copy of same).
[5] It says that it is not clear why the officer rejected his application. Did the officer conclude that he made a material misrepresentation or was it his suspected participation in combat in Chechnya that made him inadmissible? If the latter, on what basis did the officer came to that conclusion?
[6] The respondent submits that the application was rejected simply on the basis of the applicant' s lack of credibility and a breach of his duty to answer truthfully all questions put to him during his examination (section 16 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27).
[7] Even if the Court accepted the respondent's argument it could not properly review the decision. As mentioned at the hearing, the Court is simply not in a position to assess the legality of the decision because the certified record filed pursuant to Rule 17 of the Federal Courts Immigration and Refugee Protection Rules, S.O.R/92-22 does not include any of the material in Mrs. Machalikashvili' s file that was considered by the visa officer and upon which he based his final assessment of the applicant's credibility (see paragraph 9 of the visa officer's affidavit).
[8] The Court notes that the applicant had specifically requested a copy of Mrs. Machalikashvili' s interview notes. They were never provided to him. In her affidavit, Mrs. Machalikashvili challenges the interpretation of her responses. It is impossible for the Court to evaluate the validity of the visa officer' s findings and particularly his interpretation of Mrs. Machalikashvili' s prior testimony.
[9] As mentioned in several earlier decisions of the Court (Kong v. Canada (M.C.I.), [1994] F.C.J. No. 101; Gill v. Canada (M.C.I.), [2003] F.C.J. No. 1270; Ahmed v. Canada (M.C.I.), [2003] F.C.J. No. 254; Li v. Canada (M.C.I.,) [2006] F.C.J. No. 634), a breach of Rule 17(b) will justify setting the decision aside when the evidence missing from the certified record was particularly material to the finding under review. There is no doubt that this is the case here.
[10] No question was submitted for certification. As Justice Yvon Pinard explained in Gill, above at para.10-12, I do not believe that the Court should certify any question in this case.
JUDGMENT
THIS COURT ADJUDGES that:
1. The application is granted. The decision of the visa officer is set aside. The matter shall be reconsidered by a different officer after a new examination.