Sehgal v. Canada (Minister of Citizenship and Immigration), 2003 FC 1478

Date: 20031217

Docket: IMM-1304-02

Citation: 2003 FC 1478

BETWEEN:

                                                          SURINDER PAUL SEHGAL

Applicant

                                                                                 and

                                                  THE MINISTER OF CITIZENSHIP

                                                              AND IMMIGRATION

Respondent

                                                            REASONS FOR ORDER

GIBSON J.:

[1]                 By letter dated the 18^th of December, 2001, a visa officer at the Canadian Consulate General in Buffalo, New York advised the Applicant, through his immigration agent in Canada (the "agent"), in part as follows:

A letter was sent to you on June 4, 2001, reminding you that [an updated application was] required. In this letter, you were also informed that your file could not be finalized without this information.

To date, we have not received any communication from you. As you have not complied with the provisions of Paragraph 9(3) of the Act, you come within the inadmissible class of persons described in Paragraph 19(2)(d) of the Act in that you have not fulfilled or complied with the provisions of the Act and the Regulations.

[2]                 In the result, the Applicant's application for landing in Canada was, for all intents and purposes, treated as abandoned. It is this decision that is before the Court on this application for judicial review.

[3]                 Reference to the CAIPs notes in the tribunal record, as confirmed by the affidavit of the visa officer who was responsible for the decision under review, indicates that the letter requesting an updated application was sent to the Applicant, presumably in care of the agent, on the 1^st of December, 2000. Similar references indicate that a follow-up letter was sent on the 4^th of June, 2001 with an indication that, if a response was not received within sixty (60) days, the Applicant's file might be closed. It was not in dispute that, if the letter of the 1^st of December, 2000 was sent and received, it was not replied to, and equally, if the letter of the 4^th of June, 2001 was sent, it was not replied to within the sixty (60) days provided for a reply.

[4]                 On the 23^rd of November, 2001, counsel to the Applicant's agent wrote to the Canadian Consulate General in Buffalo enquiring as to the status of the Applicant's application for landing. On learning of the decision here under review, the agent sought, without success, to have the decision under review reconsidered. That request was rejected. In the result, this application for judicial review followed.

[5]                 In his affidavit filed on this application for judicial review, an officer of the agent attests that, from the 23^rd of August 2000 to the 23^rd of November, 2001, he did not receive any communication from the Canadian Consulate General in Buffalo regarding the Applicant's application. In so attesting, he speaks specifically to the alleged letter dated the 4^th of June, 2001 as not having been received but he does not make specific reference to the alleged letter of the 1^st of December, 2000.

[6]                 The issues identified on behalf of the Applicant on this application for judicial review are the following: first, the weight, if any, to be given to the affidavit filed on behalf of the Respondent and to the CAIPs notes indicating the transmittal of letters of the 1^st of December, 2000 and the 4^th of June, 2001; and secondly, whether or not the Respondent denied the Applicant procedural fairness by failing to respond to the agent's communication of the 23^rd of November, 2001.

[7]                 With regard to the first issue, counsel referred me to Chou v. Canada (Minister of Citizenship and Immigration)^[1] where the Federal Court of Appeal responded in the negative to the following certified questions:

Are a visa officer's notes concerning an interview with an applicant, as entered in CAIPs, evidence of what took place at the interview, in the absence of an affidavit from the visa officer attesting to the truth of what he or she recorded as having been said at the interview?                                                                                                                                                                                                                                [emphasis added ]

Before me, it was not in dispute that the reference to "the visa officer" was to the visa officer who conducted the interview and made the entry in question in the CAIPs notes.

[8]                 Counsel urged that, by extension, I should give no weight to the entries in the CAIPs notes in this matter that indicate the transmittal of two letters because the individual who made those entries in the CAIPs notes has not provided an affidavit attesting to the truth of the entries. The affidavit in fact provided on behalf of the Respondent speaks to the transmission of the two letters by a different person and thus, urged counsel, represents pure heresay to which no weight should be given.

[9]                 I find in favour of the Respondent on this issue. I am satisfied that the CAIPs notes entries in question are of a very different character from the notes of what took place at an interview which are, at least at some extent, subjective impressions that might well be at odds with the recollections or impressions of the person being interviewed. In such circumstances, it is only reasonable to expect that only the person whose recollections or impressions are recorded should attest to their accuracy. By contrast, here the entries in question are nothing more than records of non-interpretive facts. While I agree that the references to the entries in question in the affidavit filed on behalf of the Respondent are of doubtful value, I am satisfied that it is open to the Court to give some weight to such entries and I choose to do so. To require that all such entries must be verified by affidavit of the individual making the entries would, I am satisfied, impose a most unreasonable burden on the Respondent.

[10]            I similarly find against the Applicant on the second issue raised, that being the question of whether or not the Applicant was accorded fairness when the Respondent did not reply to the agent's communication of the 23^rd of November, 2001. While the letter constituting the decision under review does not make specific reference to the agent's communication of the 23^rd of November, it would seem to me to be more than coincidence that it was written to the agent within less than a month of the date of the agent's communication and certainly well after the expiration of the sixty (60) days provided for reply to the alleged letter of the 4^th of June, 2001. I regard it as a response to the communication of the 23^rd of November. In the result, the issue of whether or not a failure to respond would have constituted a breach of fairness does not arise.

[11]            Finally, with great respect, I find the allegation on behalf of the Applicant that the agent simply never received the two communications of the 1^st of December, 2000 and the 4^th of June, 2001 somewhat suspect. I recognize that the allegation that neither was received is made under oath. That being said, the communications in question were apparently addressed to the agent at an address that had not changed since an earlier communication was received by the agent and that had not changed when the communication that constitutes the decision under review was received.

[12]            In the last analysis, an individual who applies for landing in Canada has the burden to diligently pursue that application. The onus does not lie on the Respondent to ensure that an application such as that giving rise to the decision here under review is diligently pursued.

[13]            In the result, this application for judicial review will be dismissed.

[14]            At the close of the hearing of this application for judicial review, I advised counsel that the application would be dismissed. Counsel for the Applicant requested time to consider submission of a certified question and that request was granted. Within the time provided, counsel submitted the following question:

Are a visa officer's notes concerning an [sic] file of an applicant, as entered in CAIPS, evidence of what has taken place on that file, in the absence of an affidavit from the officer attesting to the truth of what he or she recorded as having been done on that file?

[15]            Counsel for the Respondent submits that the proposed question should not be certified for three (3) reasons: first, he urges that the proposed question does not address the crux of my decision herein, as briefly described to counsel at the close of the hearing; second, he urges that the law respecting the use of CAIPs notes as evidence is well settled; and third, he urges that the position of counsel for the Applicant that this decision will change how CAIPs notes are treated on judicial review is incorrect.

[16]            I will certify a question, albeit not in the form proposed on behalf of the Applicant. The question will be in the following form:

Is a Court entitled to give weight to entries in CAIPs notes that form part of a Tribunal Record on an application for judicial review where the entries only speak to the transmission of correspondence on a particular date where the accuracy of such entries is not attested to by the individuals who made the entries?

I am satisfied that the foregoing question would be dispositive of an appeal herein and that it does not relate to an issue where the law is well settled. While the question is, I am satisfied, a serious question of general importance despite the narrowness of its scope, it is of particular relevance on the facts of this matter where the Tribunal Record was not before the Court at hearing and there is some question as to whether copies of the letters at issue appear on the Tribunal Record.

_______________________________

J.F.C.

Ottawa, Ontario

December 17, 2003

             FEDERAL COURT OF CANADA

    Names of Counsel and Solicitors of Record

DOCKET:                                              IMM-1304-02

STYLE OF CAUSE:              SURINDER PAUL SEHGAL

Applicant

- and -

THE MINISTER OF CITIZENSHIP AND

IMMIGRATION

Respondent

PLACE OF HEARING:                      TORONTO, ONTARIO

DATE OF HEARING:           THURSDAY, DECEMBER 11, 2003   

REASONS FOR ORDER BY:                       GIBSON J.

DATED:                          December 17, 2003

APPEARANCES BY:             Mr. M. Max Chaudhary

For the Applicant

Mr. Martin Anderson

For the Respondent

SOLICITORS OF RECORD:        Mr. M. Max Chaudhary

                                            CHAUDHARY LAW OFFICE

18 Wynford Drive, Suite 707

North York, Ontario

M3C 3S2

For the Applicant                                 

Morris Rosenberg

Deputy Attorney General of Canada

For the Respondent