The Federal Court reviewed IRCC’s
refusal of Anatolii Melnyk’s temporary resident visa application on security
inadmissibility grounds under paragraph 34(1)(f) of IRPA. Mr. Melnyk, a
Ukrainian citizen, had been a member of the Soviet KGB and later the Security
Service of Ukraine (SBU). The officer found reasonable grounds to believe that
he was inadmissible because of membership in organizations that had engaged in
subversion. The Court dismissed judicial review, finding the process fair and
the officer’s assessment of the evidence reasonable.
Key Principle
Temporary resident visa
applicants are owed a limited degree of procedural fairness, but they must be
informed of material concerns and given a meaningful opportunity to respond. An
officer may weigh expert evidence against government security assessments.
Expert evidence is relevant but not binding and cannot replace the
decision-maker’s responsibility to assess security inadmissibility.
Background
Mr. Melnyk had previously
belonged to the KGB before joining its Ukrainian successor, the SBU. In
February 2017, he applied for a visitor visa to visit family in Canada. Two
earlier applications had been refused for security inadmissibility related to
his SBU membership.
His 2017 application was
initially refused on similar grounds. Following judicial review, the matter was
returned to a new officer for reconsideration. In June 2019, the new officer
again refused the application, this time relying on Mr. Melnyk’s membership in
both the KGB and SBU.
Mr. Melnyk argued that adding the
KGB concern after earlier decisions amounted to an abuse of process. He also
relied on an academic opinion indicating that the SBU had not engaged in
espionage against Canada.
Court Findings
• Adding the KGB Concern Did
Not Breach Procedural Fairness
The Court rejected the argument
that consideration of Mr. Melnyk’s KGB membership was procedurally unfair. He
had been informed several times of concerns regarding his membership in both
organizations, including through two procedural fairness letters, and had
opportunities to respond. An earlier decision’s failure to rely on the KGB
history did not prevent the reconsidering officer from examining it.
• Officer Reasonably Weighed
the Academic Opinion
The officer considered the
academic evidence rather than ignoring it. Although the opinion stated that
there was no evidence of SBU espionage on Canadian soil, the officer found
other evidence demonstrating espionage against Canadian interests and values.
The officer was entitled to give greater weight to reports from the Canada
Border Services Agency and Global Affairs Canada.
• Expert Evidence Was Not
Binding on the Officer
The Court emphasized that an
academic or expert opinion does not dictate the outcome of an immigration
security assessment. Such evidence must be weighed with the record and cannot
usurp the decision-maker’s role. Mr. Melnyk’s disagreement with the weight
assigned to his expert evidence did not establish unreasonableness. The Court
also noted that he did not challenge the conclusions concerning SBU involvement
in subversion or the merits of considering his KGB membership as a ground of
inadmissibility.
Outcome
The Federal Court dismissed
judicial review. The officer provided Mr. Melnyk with procedural fairness,
considered the relevant evidence, and reached an intelligible and transparent
security inadmissibility decision. The application was dismissed without costs,
and no question of general importance was certified.
Case
Citation:
Melnyk v. Canada (Citizenship and Immigration), 2021 FC 503 (CanLII)
Prepared by:
Dr. Muhammad Abrar (Barrister and Solicitor)
Author | Writer | Mentor | Legal Researcher | Canadian Immigration Case Law and Statistics Analyst
