Date: 20061027
Docket: IMM-7658-05
Citation: 2006 FC 1295
Ottawa, Ontario, October 27,
2006
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
DALJEET
SINGH PAKHAR DHOOT
Applicant
and
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
Background
[1]
This is an application for judicial review of a visa officer’s
decision dated November 7, 2005, in which Mr. Dhoot’s application for a
permanent resident visa was denied. At issue is whether the visa officer erred
in refusing the application based on the applicant’s failure to attend an
interview scheduled on October 26, 2005. The applicant states that he was never
informed of the interview. The visa officer insists that notice of the
interview was provided to the applicant by letter dated August 19, 2005.
[2]
On
August 22, 2000, Mr. Dhoot applied through the High Commission of Canada in India for a
permanent resident visa in the Skilled Worker Category. On March 23, 2001, a
case analyst determined that an interview was required to assess Mr. Dhoot’s
job profile. On March 2, 2004, Mr. Dhoot’s application was re-assessed under
the Immigration and Refugee Protection Act, and it was once again
determined that Mr. Dhoot would be required to attend an interview to verify
his work experience.
Written correspondence between Mr. Dhoot
and the Visa Officer
[3]
The CAIPS notes indicate that on August 23, 2005
a letter dated August 19, 2005 was faxed to Mr. Dhoot’s immigration consultant
indicating that Mr. Dhoot was required to attend an interview in New Delhi on October 26, 2005 at 09:00hrs:
INTERVIEW CALL-IN
LETTER (DELND) DATED AUGUST 19 2005 FAXED TO APPLICANT’S COUNSULTANT FOR
OCTOBER 26 2005 AT 09:00 HRS. IN NEW DELHI.
However, the Affidavit of Heather Dubé, the
visa officer at the Canadian High Commission in New
Delhi, states that the CAIPS notes incorrectly report
how the notice letter was transmitted:
Although the CAIPS notes indicate that a
letter was sent to the Applicant by mail and that the fax transmission
confirmation was put into the file, these entries were made in error. As
stated above, once something is entered in CAIPS, it is permanent and therefore
cannot be corrected.
The
CAIPS notes should read that an interview call letter dated August 19, 2005 was
faxed to Applicant’s consultant on August 23, 2005 requesting that he and all
family members over the age of 18 attend an interview on October 26, 2005 at
9:00 am in New
Delhi.
[Emphasis added]
[4]
In a letter dated October 22, 2005, Mr. Dhoot’s immigration
consultant wrote to the High Commission referring to its earlier letter dated
March 2, 2004 and requested that an early interview be scheduled to facilitate
the assessment of Mr. Dhoot’s application. The CAIPS notes indicate that the
letter was received on October 28, 2005.
[5]
The visa officer’s negative decision followed
on November 7, 2005 without reference to the consultant’s letter dated October
22, 2005.
[6]
The consultant wrote to the visa officer on
November 14, 2005 and emphasised that it had not received the interview notice letter
to which the visa officer referred in her negative decision letter:
[…]
In
your above quoted letter you have mentioned that by a letter of 19 August, 2005
the applicant was requested to attend an interview on 26 October, 2005 in New Delhi which he failed to attend. Letter
dated 07 November, 2005 enclosed herewith.
In
this regard, it is humbly submitted that the above interview letter has not
been received by us or the applicant till date. It seems to have been lost
somewhere in transit.
It
is pertinent to bring to your kind notice that we had written to you on 22
October, 05 requesting for an Interview Waiver or an early scheduling of
Interview with respect to the application of the applicant.
However, as per your
letter dated November 08, 2005 you have mentioned that intimation letter
regarding scheduling of Interview was sent to us on 19 August 2006. Our
letter dated 22 October, 2005 is itself a proof that we had never received and
[sic] intimation regarding scheduled interview. However, we also did not
receive any clarification from your side in response to our letter dated 22
October, 2005 that Interview in case of the applicant has already been
scheduled. […]
[Emphasis in original]
[7]
While it does not appear from the evidence that
the visa officer responded directly to the consultant’s letters of October 22,
the CAIPS notes dated November 3, 2005 sheds some light on the visa officer’s
treatment of the consultant’s objections:
Have
confirmed that the fax was sent on August 23, 2005 regarding PA’s interview
scheduled for October 26, 2005 was successfully transmitted to his consultant.
Copy of fax transmission on file.
File
was verified to confirm that we used the correct address on convocation letter.
Previous
correspondence had been sent and received at same address.
Based on many years’ experience, Indian mail system is reliable and
lack of receipt of correspondence is not common.
Letters that are not delivered are returned to the sender with a notation that
they could not be delivered. Based on the foregoing, I am of the opinion that it
is not credible that the convocation letter had not been received at the
mailing address provided on time for interview.
Therefore, assessment
based on documents on file.
[Emphasis added]
[8]
Mr. Dhoot then wrote to the Program Manager at
the High Commission on November 28, 2005 stating that neither he nor his
consultant received the interview notice letter. The applicant wrote: “Your
letter came as a shock to me, as you have stated that my case has been rejected
due to my non-attendance of Interview …”. He requested that the interview be
re-scheduled.
[9]
Mr. Dhoot’s consultant wrote again to the visa
officer on December 9, 2005 repeating his complaint that the interview notice
letter had not been received. The CAIPS notes indicate that these
reconsideration requests were received and forwarded to the visa officer but
that no further action was taken.
Additional Evidence before this Court
[10]
The immigration consultant swore an affidavit
for the purpose of this litigation that the interview letter allegedly faxed by
the respondent to the immigration consultant was never received. At the
hearing, the respondent produced a legible copy of the facsimile transmission
receipt which shows that the letter scheduling the interview was sent to a fax
number which bears no relationship to any of the fax numbers on the letterhead
of the immigration consultant.
Issue
[11]
The only issue in this case is whether the
applicant has satisfied his onus to establish that he did not receive notice of
the interview so that the visa officer’s decision should be set aside.
Analysis
[12]
The respondent argues that the visa officer is
entitled to refuse a visa application when an applicant does not attend an
interview necessary to complete the assessment if the visa officer has assessed
all of the material already on file. The respondent further argues that, in
this case, the visa officer thoroughly reviewed the circumstances concerning
Mr. Dhoot’s failure to attend the interview. According to the CAIPS notes the
visa officer was satisfied that the convocation letter had been sent to the
appropriate address and that, based on her experience with the Indian mail
system, she was not satisfied with the applicant’s explanation that he had not
received the letter.
[13]
The visa officer’s experience with the Indian
mail system is irrelevant. The visa officer’s affidavit makes clear that the
interview letter was never mailed to the applicant but rather sent by fax. On
this basis alone, the visa officer’s reasons for dismissing Mr. Dhoot’s explanation
are patently unreasonable, and should be set aside.
[14]
The respondent has provided a facsimile
transmission sheet purporting to confirm receipt by Mr. Dhoot of the interview
notice letter. However, that the destination fax number identified on the
transmission sheet does not correspond with any of the fax numbers listed on
the consultant’s letterhead.
[15]
Mr. Dhoot has consistently maintained that he
did not receive notice of the interview. I am not satisfied that that transmission
sheet provided by the respondent establishes that Mr. Dhoot received notice of
the assessment interview. The visa officer, for whatever reason, did not send
the notice by mail as would be expected given the significantly prejudicial
impact non-delivery would have on the applicant’s interest in obtaining a
permanent resident visa. It would be manifestly unfair to reject Mr. Dhoot’s
claim that he did not receive notice based on a transmission sheet which does
not clearly indicate that the letter was sent to the correct fax number. While
the visa officer is entitled to some deference in her assessment of Mr. Dhoot’s
explanation for non-attendance, the visa officer clearly erred in this
assessment by relying on the mistaken belief that the letter had been mailed to
Mr. Dhoot.
[16]
The Court is satisfied that the evidence
overwhelmingly shows that the applicant was anxious to be interviewed, and
would have attended the interview if he had received notice of it. His
application was dated August 2000. His consultant wrote on previous occasions
requesting an early interview to relieve the anxiety of the applicant, who was
waiting for the processing of his application for permanent residence.
[17]
The respondent explained to the Court that the
immigration section in New Delhi deals with thousands of applications. The affidavit from the visa
officer confirms that there was a mistake on the official records stating that
this letter was mailed, when in fact it was not mailed to the applicant.
Another mistake became apparent at the Court hearing when the letter scheduling
the interview was mistakenly not included in the certified record prepared by
the visa officer, and forwarded to the Federal Court.
[18]
It is clear to the Court that as soon as it was
known that the application was being dismissed because the applicant did not
attend an interview, the immigration consultant wrote, as did the applicant
himself, stating that they never received the letter scheduling the interview.
[19]
The Court is satisfied that the evidence
overwhelming establishes that this letter was never sent or faxed to the
applicant or to the applicant’s consultant. It is reasonable to expect that
there will be mistakes by the respondent when dealing with thousands of
immigration files. When the evidence shows that there has been such a mistake the
Court would have expected the respondent cure the mistake, i.e. invite the
applicant to attend another interview. It is wrong for the respondent, in a
case such as this, to oppose the applicant’s Court case. For this reason there
are special circumstances in this case to award legal costs to the applicant.
The applicant presented clear evidence that he did not receive the letter
scheduling the interview. The respondent should have recognized that this
letter was not properly sent or received, so that this Court hearing should not
have been necessary. Accordingly, the legal costs associated with this
application before the Court are awarded to the applicant.
[20]
This decision raises no
question of general importance that warrants certification.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that:
1. The application for
judicial review of the visa officer’s decision dated November 7, 2005 is
allowed, the decision is set aside, and Mr. Dhoot’s application for permanent
residence be referred to another visa officer for reassessment after granting
Mr. Dhoot an interview; and
2. The applicant is entitled to his
costs paid by the respondent on a party and party basis.
“Michael
A. Kelen”
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