Date: 20100903
Docket: IMM-1191-10
Unrevised certified
translation Citation:
2010 FC 876
Ottawa, Ontario, September 3,
2010
PRESENT: The Honourable Madam Justice Tremblay-Lamer
BETWEEN:
GHADA ABBOUD
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application for judicial review, pursuant
to subsection 72(1) of the Immigration and Refugee Protection Act, S.C.
2001 c. 27, of a decision of an immigration officer (the officer), dated
December 9, 2009, rejecting the visa application of Ghada Abboud (the applicant)
on the ground that she had not provided the information that had been asked of
her. The officer also later dismissed the applicant’s request to have this
decision reassessed.
FACTS
[2]
The applicant is a citizen of Lebanon.
[3]
In 2004, she filed an application for permanent
residence in Canada as a member
of the economic class (the application) at the Canadian Embassy in Damascus. She designated counsel to
represent her, filling out and signing a form entitled “Use of a
Representative”. Her counsel’s e-mail address was indicated on the form.
[4]
On May 27, 2009, the application was transferred
to the Canadian Embassy in Warsaw for fast-tracking. On July 29, 2009, the officer sent an e-mail
consisting of a letter, dated July 28, 2009, to her counsel’s e-mail address.
The letter informed the applicant that the application would be processed in Warsaw and requested that she submit
certain additional documents within a fixed time period or risk having her
application rejected.
[5]
Both the applicant and her counsel claim they
never received this message. The officer, for his part, claims that he received
an automated message to the effect that his “message has been successfully
relayed to the following recipients, but the requested delivery status
notifications may not be generated by the destination” (this was followed by
the lawyer’s e-mail address).
[6]
According to the documentary evidence in the
record, shortly before noon on the same day, the visa office sent a second
e-mail to counsel containing the same information as the preceding e-mail. The
same automated response was generated.
[7]
Having never received the request for additional
information and believing that her file was complete, the applicant did not
provide the requested documentation. Having never received the information he
sought, the officer rejected her application. He informed the applicant of this
in a letter dated December 9, 2009.
[8]
After receiving this letter, counsel for the
applicant wrote to the officer, asking him not to close the applicant’s file
and requesting that a copy of the letter dated July 28, 2009, be sent to her in
order for the applicant to provide the missing information. The officer refused
this request and the applicant then commenced the current judicial review
proceeding.
[9]
The applicant produced three “exhibits” which, in
her view, show that the automated message received by the officer is an
indication of the fact that the message he sent to her counsel never reached
its destination. This view is supported by the affidavit of an Ottawa computer
specialist, which Justice Michel Shore allowed to be submitted in
support of the application for judicial review. At the hearing the respondent conceded
that the evidence submitted by the applicant was convincing in this regard.
Analysis
[10]
The only issue in the case at bar is whether,
under the circumstances, the rejection of the application meets the
requirements of procedural fairness. In C.U.P.E.
v. Ontario
(Minister of Labour), 2003 SCC 29, [2003] 1 S.C.R.
539, at para. 100, Justice Binnie, writing for the majority of the Supreme
Court, noted that “[i]t is for the courts … to provide the answer to procedural
fairness questions”. Thus, if the officer breached the duty of procedural
fairness owed to the applicant, the Court must intervene. In my view, that is
the case here.
[11]
In Pravinbhai Shah v. Canada (Minister of Citizenship
and Immigration), 2007 FC 207, in regard to a notice to appear at an
interview sent to the applicant in order for his application for permanent
residence to be assessed, Justice Snider wrote, at paragraph 9:
In general,
immigration officials at overseas visa offices bear responsibility for ensuring
that the notice of an interview is sent. The Court must be satisfied that the
notice was properly sent (Herrara, above; Ilahi, above; Dhoot,
above). …
[12]
As for the case at bar, the Court is not
convinced that the request for additional information was in fact sent to the
applicant. At the hearing, both parties agreed on the fact that the automated
response sent to the officer (DSN or “Delivery Status Notification”) indicating
that the message “has been successfully relayed” did not constitute proof that the message had actually reached its
destination. At most, this type of notification indicates that the e-mail was
sent to the server, which does not necessarily mean that the message was in
fact accessible in the counsel’s e-mail inbox.
[13]
Moreover, if the officer was sure that the
message had been properly sent the first time, we might wonder why he thought
it necessary to send a second e-mail containing exactly the same information
only a few hours later. The fact that another “DSN” was received should
have alerted him that the messages had not been sent successfully.
[14]
In Dhoot v. Canada (Minister of Citizenship and Immigration), 2006 FC 1295, at para. 19, Justice Kelen
allowed the application for judicial review of a visa officer’s decision
rejecting the application for permanent residence of a person on the ground that
that person had failed to attend an immigration interview after having been
sent an interview notice letter. In that case, the documentary evidence clearly
showed that the letter had never been received by the applicant or by her
representative, either by mail or by fax. At para. 19, the judge noted that:
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.
[15]
In the case at bar, the onus was on the officer
to ensure that the e-mail had in fact been properly sent to the applicant’s
counsel. The automated reply that had been received twice after the e-mail had
been sent should have raised doubts in the officer’s mind that the
communication had failed.
[16]
Furthermore, when counsel was informed that the
application had been rejected because the requested information had not been
sent in time, she immediately contacted the visa office in Warsaw, more than once, to explain that
neither she nor the applicant had ever received the e-mail in question.
[17]
In such a situation, the officer should have
given the applicant the opportunity to provide the required documents in order
to be able to assess her application on the merits.
[18]
This is a flagrant violation of the requirements
of procedural fairness due to the fact that, as a result of this communication
problem, the applicant did not have the opportunity to provide the officer with
all of the evidence required to make an informed decision.
[19]
If the decision were to be upheld, the
consequences of this communication problem would be extremely prejudicial to
the applicant and her family who, after having waited several years, would have
to file a new immigration application and who, moreover, would in all
likelihood no longer qualify due to recent regulatory changes to the federal skilled
worker program.
[20]
I would also add that, in order to prevent
similar incidents happening in the future, it would be helpful if officers were
issued clearer guidelines with regard to their responsibilities in managing
electronic communications where problems sending e-mails can lead to such dire
outcomes in immigration applications.
[21]
For these reasons, the application for judicial
review of the decision of the visa officer dated December 9, 2009, is allowed
and the application for permanent residence is referred back for
reconsideration by a different visa officer, after the applicant has had an
opportunity to submit the documents requested in the letter dated July 28,
2009.
JUDGMENT
THE COURT ORDERS that
the application for judicial review of the decision of the visa officer dated
December 9, 2009, be allowed and that the application for permanent residence
be referred back for reconsideration by a different visa officer, after the
applicant has had an opportunity to submit the documents requested in the
letter dated July 28, 2009.
“Danièle
Tremblay-Lamer”
Certified true
translation
Sebastian Desbarats,
Translator
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