Moiseev v. Can. (M.C.I.) (2008), 323 F.T.R. 164 (FC)
MLB headnote and full text
Temp. Cite: [2008] F.T.R. TBEd. FE.010
Igor Moiseev (applicant) v. The Minister of Citizenship and Immigration (respondent)
(IMM-5202-06; 2008 FC 88)
Indexed As: Moiseev v. Canada (Minister of Citizenship and Immigration)
Federal Court
de Montigny, J.
January 23, 2008.
Summary:
Moiseev, a Russian citizen, applied for permanent residence in Canada as an entrepreneur. A visa officer rejected the application on the basis that Moiseev was inadmissible on security grounds under s. 34(1)(f) of the Immigration and Refugee Protection Act as he had been a member of the KGB. Moiseev applied for judicial review.
The Federal Court dismissed the application.
Administrative Law – Topic 2609
Natural justice – Evidence and proof – Reliance on evidence not adduced by parties – [See
Aliens – Topic 1230
].
Aliens – Topic 1230
Admission – Immigrants – Application for admission – Immigrant visa – Duty of officer (incl. duty of fairness) – Moiseev, a Russian citizen, applied for permanent residence as an entrepreneur – A visa officer found that Moiseev was inadmissible on security grounds under s. 34(1)(f) of the Immigration and Refugee Protection Act as he had been a member of the KGB – Moiseev applied for judicial review, arguing that he was not a direct member of the KGB as he was part of the Border Guards, a subordinate unit – He also argued that the visa officer relied on extrinsic evidence regarding the Border Guards as a result of information that he obtained from his colleagues when he left the room during an interview with Moiseev – The Federal Court dismissed the application – With respect to the alleged breach of natural justice, the court stated that while it may have been a mistake for the visa officer to have left the room and consulted with his colleagues, it was not unfair to the point where his decision ought to be quashed – Moiseev was aware of the visa officer’s view that his unit was clearly part of the KGB – The officer’s concerns were well known to Moiseev and he had every opportunity to address them during the interview – See paragraphs 27 to 30.
Aliens – Topic 1655
Exclusion and expulsion – Immigration – Deportation – Grounds for – Inadmissibility – Exception – Ministerial declaration that presence of permanent resident or foreign national not detrimental to the national interest – A visa officer rejected Moiseev’s application for permanent residence on the basis that he was inadmissible on security grounds under s. 34(1)(f) of the Immigration and Refugee Protection Act (IRPA) – Moiseev applied for judicial review, arguing that the visa officer failed to consider s. 34(2) of the IRPA, despite his written request to do so by way of a letter from his counsel – The Federal Court dismissed the application – With respect to s. 34(2), the court stated that “It is true that a finding of inadmissibility can be overcome if the person’s admission to Canada would not be detrimental to national interest. But s. 6(3) of the IRPA expressly prevents a visa officer from making this determination, which rests exclusively with the Minister and cannot be delegated. As a result, I cannot agree with the applicant’s suggestion that the visa officer had to take the exception into consideration” – Further, the Minister had no obligation to consider the exception where Moiseev made no specific request to do so – See paragraphs 30 to 31.
Aliens – Topic 1747
Exclusion and expulsion – Immigration – Exclusion – Particular persons – Members of a subversive, espionage or terrorist organization – Moiseev, a Russian citizen, applied for permanent residence as an entrepreneur – A visa officer found that Moiseev was inadmissible under s. 34(1)(f) of the Immigration and Refugee Protection Act as he had been a member of the KGB, an organization for which there were reasonable grounds to believe had engaged in acts of espionage or acts of subversion against democratic governments, institutions or processes – Moiseev applied for judicial review, arguing that he was not a direct member of the KGB as he was part of the Border Guards, a subordinate unit – The Federal Court dismissed the application – The visa officer’s conclusion was reasonable – Moiseev did not provide any documentary evidence explaining the activities of the Border Guards – To the contrary, there was ample evidence from which the visa officer could reasonably conclude that Moiseev was a member of the KGB organization – The court noted the liberal interpretation that had been given to the concept of “member” in Poshteh v. Canada (F.C.A.) – See paragraphs 20 to 26.
Cases Noticed:
Ouafae v. Canada (Minister of Citizenship and Immigration) (2005), 277 F.T.R. 30; 2005 FC 459, refd to. [para. 15].
Boni v. Canada (Minister of Citizenship and Immigration) (2006), 357 N.R. 326; 2006 FCA 68, refd to. [para. 15].
Poshteh v. Canada (Minister of Citizenship and Immigration) (2005), 331 N.R. 129; 2005 FCA 85, refd to. [para. 15].
Lennikov et al. v. Canada (Minister of Citizenship and Immigration), [2007] F.T.R. Uned. 24; 2007 FC 43, refd to. [para. 15].
Chiau v. Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 297; 265 N.R. 121 (F.C.A.), refd to. [para. 16].
Au v. Canada (Minister of Citizenship and Immigration) (2001), 202 F.T.R. 57; 2001 FCT 243, refd to. [para. 16].
Gariev et al. v. Canada (Minister of Citizenship and Immigration), [2004] F.T.R. Uned. 297; 2004 FC 531, refd to. [para. 16].
Mugesera et al. v. Canada (Ministre de la Citoyenneté et de l’Immigration) (2005), 335 N.R. 229; 2005 SCC 40, refd to. [para. 16].
Sketchley v. Canada (Attorney General) (2005), 344 N.R. 257; 2005 FCA 404, refd to. [para. 18].
Zheng v. Canada (Minister of Citizenship and Immigration), [1999] F.T.R. Uned. 682 (T.D.), refd to. [para. 28].
Canada (Minister of Citizenship and Immigration) v. Gureghian (2003), 235 F.T.R. 161; 2003 FCT 675, refd to. [para. 31].
Hussenu v. Canada (Minister of Citizenship and Immigration) (2004), 247 F.T.R. 137; 2004 FC 283, refd to. [para. 31].
Canada (Minister of Citizenship and Immigration) v. Adam, [2001] 2 F.C. 337; 266 N.R. 92 (F.C.A.), refd to. [para. 31].
Statutes Noticed:
Immigration and Refugee Protection Act, S.C. 2001, c. 27, sect. 34(1), sect. 34(2) [para. 10].
Counsel:
Inna Kogan, for the applicant;
David Tyndale, for the respondent.
Solicitors of Record:
Inna Kogan, Toronto, Ontario, for the applicant;
John H. Sims, Q.C., Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.
This application was heard on December 12, 2007, at Toronto, Ontario, before de Montigny, J., of the Federal Court, who delivered the following decision on January 23, 2008.
