Date: 20100121
Docket: IMM-3250-09
Citation: 2010 FC 75
BETWEEN:
LIPING
ZHANG
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT
BARNES
J.
[1]
Once
again the Court is faced with the problem of a failed e-mail communication
between the parties leading to a failure to respond and to the rejection of an
application for a permanent residence visa. The question for determination is
whether the Applicant had created a reasonable expectation that important
written communication would only be conducted by regular mail.
I. Background
[2]
Ms. Zhang
applied for a permanent residence visa on September 10, 2006. Her application
was made under the simplified process which initially consisted of a three-page
form (IMM0008) outlining basic personal information and a Use of a Representative
form (IMM5476). In the application form, Ms. Zhang provided her
residential address in China and the postal address for her Vancouver lawyer,
Lawrence Wong. She offered no personal e-mail address in the space provided.
The application form contained the following caveat with respect to the
designation of a postal address:
All correspondence will go to this
address unless you indicate your e-mail address below thereby authorizing
correspondence, including file and personal information to be provided to the
specified e-mail address.
[3]
In
the Use of a Representative form Ms. Zhang provided the postal address for
Mr. Wong along with his e-mail address.
[4]
The
record establishes that on December 7, 2006, the visa officer sent an
acknowledgement of Ms. Zhang’s application to Mr. Wong by e-mail.
That letter came with an explicit statement that, with some limited exceptions,
further correspondence would not be accepted until requested.
Those exceptions included changes of address or contact information such
as a change of e-mail address. Mr. Wong took no issue at the time with
this method of communication although he has since deposed that “we believed
that any important communication, especially one requiring response, would be
sent to us” by regular mail. Mr. Wong’s affidavit indicates that he found
it “strange” that this initial communication came to him by e-mail, but that he
saw no need in the circumstances to provide clarifying instructions to the
Canadian Embassy in Beijing, China (Embassy).
[5]
On
August 15, 2008, a generic e-mail was generated by the Embassy addressed to Mr. Wong’s
e-mail address. It requested documents in support of Ms. Zhang’s visa application.
A copy of that e-mail is attached as an exhibit to the affidavit of Daniel Unrau,
First Secretary (Immigration) at the Embassy and it sets out the date and time
of sending and Mr. Wong’s correct e-mail address. The visa officer’s CAIPS
notes also state that this e-mail was sent on the date stated to
Mr. Wong’s e-mail address. It was this e-mail that was never answered, and
on March 19, 2009, Ms. Zhang’s visa application was refused.
[6]
Mr. Wong’s
affidavit does not state that the e-mail of August 15, 2008 was not received in
his office; only that he was not aware of receiving it and that he may have
inadvertently deleted it or that it may have been automatically filtered out as
spam.
[7]
In
contrast, Mr. Unrau deposed that e-mail is a preferred method of
communication because it is “reliable, timely and convenient for both the
client and our office.” He also stated that no report was received by the
Embassy that this e-mail to Mr. Wong was not delivered as intended.
II. Issue
[8]
Did
the visa officer breach a duty of fairness by communicating with the
Applicant’s counsel by e-mail?
III. Analysis
[9]
Notwithstanding
Ms. Chun’s very capable submissions and the unfortunate consequences that
have befallen her client, I am unable to conclude that the visa officer’s
handling of Ms. Zhang’s visa application breached the duty of fairness.
[10]
I
do agree that the language of the visa application form and the Use of a Representative
form could be clearer with respect to the potential use of e-mail
communication. Nevertheless, when those documents are considered together, no
reasonable expectation could arise that the Embassy would not use e-mail to
communicate with Mr. Wong; and even if such an expectation could arise it
was surely displaced when Mr. Wong received an e-mail from the Embassy and
did nothing about it at the time. Indeed, if Mr. Wong found it strange
that an e-mail had been sent to the e-mail address provided by his client or
himself, it is stranger still that he neglected to advise the Embassy not to
use that method again. The Embassy did, after all, advise him that changes in
contact information would be accepted and acted upon.
[11]
It
is also of some significance that Mr. Wong did not say that the Embassy’s
e-mail was not received in his office. The evidence supplied by the
Respondent establishes that it uses e-mail to communicate with visa applicants
and representatives in accordance with Citizenship and Immigration Canada’s
(CIC) e-mail protocol and that the protocol was followed in this case. The Embassy
also had no indication that its e-mail was not received.
[12]
Mr. Unrau
was not cross-examined on his affidavit with a view to testing his assertion
about the general reliability of e-mail communication to and from the Embassy.
I also do not know if Mr. Wong took any steps to determine whether this e-mail
was blocked or inadvertently deleted after receipt nor does his affidavit speak
to the steps he took to ensure that e-mails from the Embassy were not impeded
or treated as spam. Indeed, he offered no evidence concerning the sensitivity
of his system for blocking unwanted e-mails or his propensity for deleting e-mails
before reading them.
[13]
The
inference I draw from the evidence before me is that the August 15, 2008 e-mail
request to Mr. Wong was received in his office and either inadvertently blocked
or deleted.
[14]
Against
this factual background I can only conclude that responsibility for the
communication breakdown that occurred rests with the Applicant and her counsel.
It was Ms. Zhang and her counsel who provided the e-mail address to the
Embassy through CIC’s Use of a Representative form and they took no issue with the
Embassy’s initial use of e-mail to acknowledge receipt of the visa application.
An e-mail address provided on the face of a Use of a Representative form is, in
my view, an open invitation to the Embassy to use that methodology. It is
well-known to experienced immigration counsel like Mr. Wong that embassies,
consulates, and high commissions regularly use e-mail to communicate, and as
noted by Justice Judith Snider in Yang v. Canada (Minister of Citizenship
and Immigration) (2008), 2008 FC 124, 79 Admin. L.R. (4th) 195
at para. 14 the sheer volume of visa applications handled by CIC offices must
be considered when assessing its business practices on fairness grounds. If
there is a concern that the receipt of e-mail is unreliable because of
automatic filtering or the like, all that counsel need do is to withhold the
e-mail address. To my thinking this case is indistinguishable from the decision
in Kaur v. Canada (Minister of Citizenship
and Immigration), 2009 FC 935, [2009] F.C.J. No. 1530 (Q.L.), where I held
the following at paras. 11-12:
11 Mr. Hayer’s assumption that
the High Commission would continue to communicate by regular mail was, as the
facts attest, a dangerous one. It was not reasonable for him to expect the
High Commission to figure out from the absence of an e-mail address on his
last communication that his e-mail was no longer functioning. This was a risk
which Ms. Kaur and Mr. Hayer could have avoided by the simple step of
advising the High Commission that the previously identified e-mail address was
no longer valid, just as Mr. Hayer had done for his postal address. E-mail
is, after all, a standard method of business communication. It is fast,
efficient and reliable and it was not unreasonable or unfair for the High
Commission to have relied upon it. In these circumstances the failed e-mail
delivery was solely caused by Mr. Hayer’s unwarranted assumption and by
the failure to provide complete and accurate contact information to the High
Commission.
12 In summary, when a communication
is correctly sent by a visa officer to an address (e-mail or
otherwise) that has been provided by an applicant which has not been revoked or
revised and where there has been no indication received that the
communication may have failed, the risk of non-delivery rests with the
applicant and not with the respondent. […].
[15]
In
the result this application will be dismissed. The parties requested an
opportunity to propose a certified question and the Applicant will have seven
(7) days to do so. The Respondent will have seven (7) days thereafter to
respond. The Court’s judgment will then issue.
“R.L.
Barnes”
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