Date: 20101020
Docket: IMM-5285-09
Citation: 2010 FC 1024
Ottawa, Ontario, October 20,
2010
PRESENT: The Honourable Mr. Justice Mandamin
BETWEEN:
AFSHIN ZARE
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
Afshin
Zare has applied, pursuant to section 72(1) of the Immigration and Refugee
Protection Act, S.C., 2001, c. 27 (IRPA), for judicial review of a
Visa Officer’s August 27, 2009 refusal of his application for a permanent
residence visa as a skilled worker. The Visa Officer refused the application
because the Applicant failed to provide certain documentation required by the
Visa Officer’s emailed request for information.
[2]
This
matter involves an application for a permanent resident visa filed by the
Applicant at the visa office at the Canadian Embassy in Damascus. The application file was
transferred from the Damascus visa office to the visa
office at the Canadian Embassy in Warsaw,
Poland. The issue concerns the June 26, 2009 email letter from the Visa Officer
in Warsaw requesting further
information about the Applicant’s work experience as a pharmacist. The
Applicant did not respond but says the email request was not received by his
representative.
[3]
The issue
involves the same situation that arose in six other recent judicial review
applications consolidated under Yazdani v. Canada (Minister of Citizenship and
Immigration),
2010 FC 885, as well as in two other cases: Abboud v. Canada (Minister
of Citizenship and Immigration), 2010 FC 878 and Alavi v. Canada (Minister of Citizenship and
Immigration),
2010 FC 969. All involved errant emails sent from the visa office in Warsaw which were not received by
the respective applicant’s representative.
[4]
For
reasons that follow, I am granting the application for judicial review.
Background
[5]
The
Applicant, Afshin Zare, submitted an application under the economic class for a
permanent residence visa in Canada to the Canadian Embassy in Damascus, Syria on February 19, 2004.
The Damascus visa office was notified by
facsimile that Amirsalam & Damitz (the Agent) were the new representatives
for the Applicant. The Agent provided a business address including an email
address.
[6]
On April
25, 2008 the Agent emailed the Damascus visa office a Use of
Representative Form signed by the Applicant which included the Agent’s email
address. The Agent advised of the Applicant’s concern about updating his
contact information, requested correction of the Applicant’s mailing address
and phone number, and asked for acknowledgement of receipt of the message.
[7]
On June 5,
2008 the Damascus visa office sent an email
reply to the Agent advising the application was still in the preliminary stage
of assessment.
[8]
On
September 21, 2008 by way of email and mail, the visa officer in the Damascus visa office sent the Agent a
request for an updated application and supporting documentation. The Agent
submitted the updated application and documentation to the Damascus visa office on December 24,
2008.
[9]
On May 26,
2009 the Applicant’s file was transferred from the Damascus visa office to the visa office at the
Canadian Embassy in Warsaw, Poland as part of the effort
by Citizenship and Immigration Canada (CIC) to process files held up in
substantial processing queues. Processing of the Applicant’s file thereafter
was conducted by the Warsaw visa office.
[10]
On June
26, 2009, the Visa Officer in Warsaw noted the Applicant was a self-employed
pharmacist and requested more documentation concerning his work experience. The
Officer sent an email request to the Agent’s email address requesting the Applicant
to submit evidence of his business and other related documentation.
[11]
In the June
26, 2009 email, the Visa Officer advised that the Applicant’s file had been
transferred to the Warsaw visa office and required the
Applicant submit the requested items within sixty days from the date of the
email letter. The Officer advised if the information was not provided, a
decision would be made on the basis of the documentation in hand.
[12]
On sending
the email, the Warsaw visa office received a
Delivery Status Notification (DSN) to the effect that the June 26, 2009 email
was relayed to the Agent’s email address. The relevant portion of the DSN
message states:
From: POSTMASTER (AITE)
Sent: June 26, 2009 8:34. AM
…
Subject: Delivery Status Notification
(Relay)
Attachments: ATT343272.txt; FILE
B046073226 NAMES: ZARE, AFSHIN
…
This is an automatically generated
Delivery Status Notification.
Your message has been successfully relayed
to the following recipients, but the requested delivery status notifications
may not be generated by the destination.
canimmig@idirect.com
[13]
Neither
the Applicant nor his Agent responded.
[14]
Since
there was no response to the June 26, 2009 email request, the Visa Officer
assessed the application on the basis of the information on file. On August
27, 2009, in part because of the failure to provide the requested documentation
concerning the Applicant’s work experience, the Visa Officer refused the
application for a permanent resident visa. The Visa Officer sent the refusal
letter by post to the Agent explaining the negative assessment.
[15]
On
September 23, 2009 the Agent sent an email to the Damascus visa office requesting an update on the
status of the Applicant’s application. Six days later, on September 29, 2009,
the Agent received the Visa Officer’s posted refusal letter. The Agent says
this was the first time he learned the Applicant’s file had been transferred to
the visa office in the Canadian Embassy in Warsaw, Poland.
[16]
The Agent
declares he never received the June 26, 2009 email request. The Agent requested
the Visa Officer reconsider but reports that the Officer refused, insisting the
June 26, 2009 email was received by the Agent.
Decision Under Review
[17]
The Visa
Officer’s refusal letter, dated August 27, 2009, states in part:
Moreover, you were requested to provide
additional evidence of your work experience as a self-employed person by
correspondence of 26 June 2009, within a sixty day period, however, no response
was received from you. Given your failure to provide the information requested
by letter of 21 September 2008 and by correspondence of 26 June 2009 I am not
satisfied that you meet the second or third part of the requirements mentioned
above for your stated occupation of a Pharmacist (NOC 3131) because the
information provided does not satisfy me that you meet the minimum requirements
of section 75 of the Regulations in this occupation.
…
Following an examination of your
application, I am not satisfied that you meet the requirements of the Act and
the regulation for the reasons explained above. I am therefore refusing you
application.
[18]
It is
clear the Visa Officer considered the Applicant’s failure to provide the
information requested in the June 26, 2009 email request a significant factor
in the refusal decision.
Standard
of Review
[19]
The
Supreme Court of Canada, in Dunsmuir v. New
Brunswick, 2008 SCC 9, has said that a reviewing court need not
conduct a standard of review analysis in every case and may look to whether the
standard of review has been previously determined.
[20]
The
question of whether a visa officer has provided an applicant with a meaningful
opportunity to respond to the visa officer’s concerns is a question of
procedural fairness. Rahim v. Canada (Minister of Citizenship and
Immigration),
2006 FC 1252 at para. 12.
[21]
Questions
of procedural fairness are assessed on a correctness standard. Sketchley v. Canada (Attorney General), 2005 FCA 404; Li v.
Minister of Citizenship and Immigration, 2008 FC 1284.
Legislation
[22]
The
relevant provision of the Immigration and Refugee Protection Act,
S.C.2001 c. 27 (IRPA) is:
|
|
|
|
16. (1) A person who makes an
application must answer truthfully all questions put to them for the purpose
of the examination and must produce a visa and all relevant evidence and
documents that the officer reasonably requires.
|
16.
(1) L’auteur d’une demande au titre de la présente loi doit répondre
véridiquement aux questions qui lui sont posées lors du contrôle, donner les
renseignements et tous éléments de preuve pertinents et présenter les visa et
documents requis.
|
Issue
[23]
I consider
the issue in this case to be:
Was the Applicant denied procedural
fairness by the email transmission of the request to provide additional
information?
Analysis
[24]
From the
reasons that follow, I find that the June 26, 2009 Warsaw email by the Visa
Officer in Warsaw was not received by the
Agent.
[25]
The
Applicant’s Agent has declared by affidavit that he did not receive the June
26, 2009 email. He introduced expert evidence in support of his application.
[26]
Ray
Xiangyang Wang is a computer professional with 10 years of university study in
the filed of computer science and who holds BSc. MSc. and PhD. degrees. He has
worked as a programmer, project manager, business analyst, and application
consultant in the field for 17 years. His credentials were not challenged and
he was not cross-examined on his affidavit. I am prepared to accept him as an
expert with knowledge of computer science and he may offer opinion evidence
about the use of email communications.
[27]
Mr. Wang
stated that email is delivered by simple mail transfer protocol (SMTP) through
internet service providers. He opines that “[i]t is well known that the
original mail service provides limited mechanisms for tracking a transmitted
message and none for verifying that it has been delivered or read. It requires
that each mail server must either deliver onward or return a failure notice (bounce
message), but both software bugs and system failures can cause messages to be
lost.”
[28]
The
Respondent provided an affidavit by the Visa Officer who deposed that the CIC
implemented a protocol on email communication with clients and that they
(presumably the Warsaw visa office) have been using email to correspond with
clients since 2006. Email is the preferred communication method when an email
address is provided by clients because it is timely and cost effective. The
Visa Officer deposes that upon sending an email the visa office requests
delivery notice; that is a delivery status notification (DSN).
[29]
The
Officer deposes she is advised by IT personnel and verily believes the
information and opinions provided to be true. She then repeats some of the IT
information provided stating:
… I am advised by our IT personnel and
verily believe that if our e-mail message is not delivered, we usually receive
an e-mail message stating that the correspondence was not delivered. …
… I am informed by our IT personnel and
verily believe that the delivery status notification means the e-mail was
received by the applicant’s server for delivery to the e-mail address canimmig@direct.com. …
[30]
In an
application such as this, an affiant must be available for examination on
affidavit as provided in Federal Court Rule 83 which requires any affiant be
available for cross-examination. The person who is the source of the expert
opinion the IT specialist, should be available for cross-examination on
affidavit but, here, the source of that expert opinion is not available for
examination. This indirect means of introducing expert opinion evidence by way
of information and belief in an affidavit is impermissible since there is no
way to determine what knowledge the expert possesses or test the facts upon
which the expert opinion is based.
[31]
In result,
the expert opinion of Mr. Wang is unchallenged. His evidence is that email
messages may be lost without delivery to the recipient or notification of the
failure back to the sender.
[32]
In
addition, one may have regard to the language of the DSN message. The
Respondent’s reliance on the DSN message as proof of delivery is not supported
by the language of the DSN message itself. It is clear from the wording of the
June 26, 2009 DSN response received back did not mean that the message
had been received by the Agent. The DSN message refers to a relay of the
email, not its receipt. The DSN message cannot be taken, without more,
as evidence of delivery of the email to the recipient’s email address.
[33]
I am
persuaded on the balance of probabilities that the Agent did not receive the
June 26, 2009 email request for the following reasons:
- the Agent previously successfully
corresponded with the Damascus visa office by email;
- the Agent conveyed the Applicant’s
concern about maintaining updated contact information to the Damascus visa office;
- the Agent responded to the Damascus visa office’s September
26, 2008 email and posted request for an updated application and
documents;
- the Agent was awaiting further
information about the application as demonstrated by his email enquiry to
the Damascus visa office on September 23, 2009 asking about the status of
the Applicant’s application (this request was sent prior to receiving the
Warsaw Visa Officer’s posted refusal letter on September 29, 2009);
- the Agent declares by affidavit that
he never received the June 26, 2009 email and he was not challenged by any
cross-examination affidavit;
- the wording of the DSN message, at
best, shows the email as relayed but does not confirm the email message
was received and
- the Applicant’s expert opined that
email messages may be lost because of software bugs and system failures
without notification of the failure back to the sender.
[34]
I am
satisfied the Agent’s email was working properly and the Agent was properly
attending to the business of the Applicant’s application for a permanent
resident visa. I conclude the Agent, and therefore the Applicant, did not
receive the June 26, 2009 email and therefore was not given notice of the
requirement to provide further information.
[35]
A visa
officer’s request for additional information is an important step in the visa
application process. Section 16(1) of IRPA provides that “a person who
makes an application … must produce … all relevant evidence and documents that
the officer reasonably requires.” Failure to respond renders an applicant
non-compliant with the legislation.
[36]
The
jurisprudence on email follows jurisprudence established for mail and telephone
facsimile transmissions. An applicant has the burden of ensuring his or her
application is complete and, where an applicant provides an address, post,
facsimile or email, the risk of non-delivery rests with the applicant provided
there is no indication that the communication may have failed. Ilahi v.
Canada (Minister of Citizenship and Immigration), 2006 FC 1399, Shah v.
Canada (Minister of Citizenship and Immigration), 2007 FC 207, Yang v.
Canada (Minister of Citizenship and Immigration), 2008 FC 124, Kaur v.
Canada (Minister of Citizenship and Immigration), 2009 FC 935 and Zhang
v. Canada (Minister of Citizenship and Immigration), 2010 FC 75.
[37]
In the
above cases, the issue turns on a finding of fault by one of the parties. Where
the visa officer could not prove that he had sent notice, the Respondent is to
bear the risk for missed communications. Ilahi Where the visa officer
had proved that he had sent the notice, but the communication was missed due to
an error on the part of the applicant (such as discontinuance of an email
address or blocking by spam filter), the applicant is to bear the risk. Kaur
[38]
Kaur involved
email communications. In that case Justice Barnes set out a qualification in
respect of the applicant’s burden. He stated at para. 12:
In summary, when a communication is correctly
sent by a visa officer to an address (email 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.
(emphasis
added)
In the case at hand, there is evidence the crucial June 26,
2009 email communication failed.
[39]
In arguing
that it should not bear the risk for a failed email communication, the Respondent
submits that the duty of procedural fairness is limited in cases of
applications for permanent resident visas made from outside Canada stating that
section 16 of IRPA requires that a person seeking an entry visa must
provide all relevant documents the visa officer reasonably requires. However,
that is based on the premise that the Applicant was actually provided with the
officer’s request.
[40]
The Visa
Officer may have sent the email but I have held the evidence does not establish
it reached the Applicant. Although I am satisfied that the Visa Officer has
acted in good faith in sending the request by email, the Respondent has an
obligation to deal with the Applicant fairly which goes beyond simply pressing
the email send button.
[41]
The
Respondent says that in considering the procedural fairness practices, one must
consider the sheer volume of visa applications handled by visa offices as noted
by Justice Barnes in Zhang. The Respondent states any risk could be
mitigated by an applicant or his or her representative not choosing email as a
means of communication.
[42]
In Abboud
v. Canada (Minister of Citizenship and Immigration), 2010 FC 876 issued
after the Respondent’s submissions, Justice Tremblay-Lamer decided, on the
evidence before her, that she was not satisfied the request for additional
information had been sent. She accepted that the DSN message did not prove the
email request had been received by the intended recipient and went on to grant
the application for judicial review because of a breach of procedural fairness.
[43]
The
Respondent sought to distinguish that case by submitting that the expert
evidence in Abboud was to the effect that the email message had not been
received at the destination while here the Applicant only claims that the DSN
message was not a sure way to ensure that the email has been received. The
Respondent submits the Visa Officer correctly understood that the DSN message
was a sign the message had been properly sent. The Respondent goes on to say
this is no different from regular posted mail as opposed to registered mail and
states the accepted jurisprudence is to the effect that the risk of non-receipt
of correspondence via the mode of communication rests with the Applicant, and
there is no onus on the Respondent to ensure the actual receipt of
correspondence.
[44]
The
distinction the Respondent seeks to make with respect to the evidence about the
significance of the DSN message does not stand in view of the evidence. Here,
the Agent has attested that he did not receive the June 26, 2009 email request
and the expert witness, Mr. Wang, has stated email messages may not be
delivered due to software bugs or system failures. The DSN message itself only
speaks to relay of messages, not to receipt of the email. Finally, the
Respondent’s affiant, the Visa Officer, is not qualified to offer expert
opinion that a DSN confirms successful relay to the recipient’s server. The
short answer to the Respondent’s submission is that there is evidence before me
that I accepted that the email message was not received by the Agent.
[45]
In Alavi
v. Canada (Minister of Citizenship and
Immigration), 2010
FC 969, Justice Hughes, having the benefit of the foregoing decisions stated:
The principle to be derived from these
cases, all dealing with communications from the Embassy processing the
application to the applicant or applicant’s representative, is that the
so-called “risk” involved in a failure of communication is to be borne by the
Minister if it cannot be proved that the communication in question was sent by
the Minister’s officials. However, once the Minister proves that the
communication was sent, the applicant bears the risk involved in a failure to
receive the communication.
[46]
Justice
Hughes went on to say:
A document purporting to be a Delivery
Status Notification of an e-mail as found on the files is not, in itself,
evidence of delivery, it is only evidence that such a document exists on the
file. Where the matter is contentious, as it is here, proper evidence by way of
an affidavit of a person familiar with the matter, is needed to prove the
facts.
[47]
He went
further and found on the evidence: “Given the positive sworn evidence submitted
on behalf of the Applicant and lack of any evidence from the Respondent I can
only conclude that the communication of June 29, 2009 was never received by Mr.
Green and that there is no evidence that it was ever sent.”
[48]
I would
think that part of the debate in these matters arises because of the meaning
ascribed to the word “sent”. I would suggest the meaning in this context would
be to convey a message to the intended recipient with the reasonable
expectation that the message will arrive at its destination. To draw from the
Respondent’s earlier analogy, when a letter is mailed, there is a reasonable
expectation the letter will be delivered. But if the local post office burns
down, then the expectation of delivery will not be realized. When a visa
officer sends an email to an applicant who has provided an email address, there
is a presumption that the email message has been conveyed to the intended
recipient. However when the applicant proves with credible evidence that the
email was not received, the presumption is displaced and more is required to
establish the email request has been communicated or properly sent.
[49]
Section 16
of IRPA contemplates a visa officer’s request is made to an applicant.
An email request that goes astray is not a request made to an applicant as
contemplated by section 16. One might say, as I do, it was not properly sent.
[50]
In
addition there is another consideration arising on the decision to use email
communications in the processing of immigration applications by CIC.
[51]
The
statutory objectives of IRPA, specifically subsection 3(1)(f) state:
(f) to support by means of consistent
standards and prompt processing, the attainment of immigration goals
established by the Government of Canada in consultation with the provinces.
[52]
CIC has a
Protocol on email communication with clients. The Protocol’s objectives are in
accord with the statutory objectives of IRPA. It provides:
The intent of this protocol is to create
an implementation framework for email communications with clients that will not
put personal privacy of CIC clients or staff at risk nor burden CIC resources
unnecessarily…
…this Protocol on email Communications
with Clients also seeks to improve client service in such potential ways as:
·
Increased
rates of response to client inquiries;
·
Shortened
enquiry response time frames;
·
Enhanced
operational efficiency.
The CIC Protocol recognizes that email communications with
clients is a benefit to the Respondent as well as applicants in increasing
response rates, shortening response times, and promoting operational
efficiency.
[53]
The CIC
email protocol also provides:
·
The
protocol is for email communications between the CIC and its individual clients
or their authorized representatives only.
·
CIC
offices may communicate by email on consent by the client who does so by
providing an email address.
·
CIC
offices must be equipped to receive email inquiries via email.
·
Websites
providing for email query must include disclaimers that caution email is not a
secure channel, that CIC is not liable for unauthorized disclosure of personal
information or is misuse by a third party.
·
Offices
opening an email communications channel must provide clear instructions to
clients on what email address to use and what mandatory information to include.
·
To
minimize failure of email delivery, CIC websites should counsel clients to
include the local CIC email address in their email address list (to avoid
blockers, firewalls, attachment stripping, etc.) that may impede or prevent
delivery of a CIC email message. (an optional requirement)
The CIC protocol expressly allows for transmission of
client-and case-specific information including requests for information via
email. However, while the CIC protocol provides that visa offices must ensure
safeguards are in place for privacy matters, it does not make mandatory
safeguards to ensure reliability of email transmissions for critical
communications, namely, statutorily mandated IRPA requests for
information.
[54]
I do not
accept the Respondent’s submission that the solution for email transmission
failure risk is for applicants and their representatives to opt out of email
communication. In my view, applicants turning away from email usage would
frustrate the CIC Protocol objective of enhanced operational efficiency and
would be contrary to the IRPA statutory objective of prompt processing
of applications for visas.
[55]
As I said
in Yazdani, the solution therefore does not seem to lie in cautioning or
discouraging applicants from using email, but in finding a strategy to deal
with the occasional email error, especially when an applicant has done
everything on his or her end to accommodate email communication.
[56]
Email
communication in visa applications will likely increase in the future. The
technology, both hardware and software, supporting email will change and it
will improve at different rates in different countries. Unexplained errors in
email transmission, as has happened in these cases, will no doubt occur in the
future. Given the fact that email communication may occasionally fail
outright, it seems to me that the Respondent needs to take care in sending
important communications by email in the visa application process and have a
process in place for reconsideration if it appears an email transmission
failure has occurred.
[57]
In the
case at hand, the Respondent chose to transfer the Applicant’s file from Damascus visa office to the visa
office in Warsaw for processing. There had
been no history of prior successful email communications between the Warsaw visa office and the Agent’s
office. I especially note the Warsaw visa office did not provide a
safeguard against possible email transmission failure. This is in contrast to the
Damascus visa office which had earlier
both emailed and posted its request for an updated application and
documentation.
[58]
Further,
there are now eight reported cases, nine counting this case, of failed email
communications all originating from the Warsaw visa office. The failed email messages
all concerned files transferred from the Damascus visa office and were all sent during
much the same time period. The number of instances of email transmission
failure is moving beyond coincidence. Given that I am satisfied that the Visa
Officer has acted in good faith, the inference that arises is that there was a
system failure in the CIC email communications system out of Warsaw.
[59]
One has to
ask, how many other such cases are out there? I should think to continue
insisting no problem exists with emails from the visa office in question in a
multiplicity of identical applications coming before the Court on the issue is
to unnecessarily burden limited Court resources with an issue to which an
answer has been already been given.
[60]
Having
regard for the foregoing, I conclude the Respondent has not established it
properly sent the email request to the Applicant’s Agent. The failure to
communicate the request properly resulted in a breach of procedural fairness
when the Visa Officer rejected the application for a permanent resident visa
because the Applicant had not responded to the awry email.
Conclusion
[61]
On the
evidence in this case, I allow the judicial review.
[62]
The
application for a permanent residence visa is to be remitted back to a
different visa officer for re-assessment once the Applicant has the opportunity
to submit the documents requested in the June 26, 2009 email request as well as
any other information updating his application having regard to the passage of
time.
[63]
The Respondent submits a proposed a
question of general importance for me to certify as follows:
Where the officer properly
sends correspondence to an applicant requesting further information, and the
applicant claims not to have received the correspondence, which party bears the
risk of non-receipt?
[64]
This proposed question is not in accord with the facts I
have found in this application. In addition, it generalizes and does not
address the critical issue, the use of emails to send statutorily mandated
requests for information where non-response has significant adverse consequences
for an applicant. Finally, the Respondent has not submitted proper expert
evidence addressing the question of the reliability of email communications. In
light of these shortcomings, I do not see the proposed question as suitable for
certification and I do not certify it.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that:
1.
I grant
the application for judicial review.
2.
The
application for a permanent residence visa is to be remitted back to a
different visa officer for re-assessment once the Applicant has the opportunity
to submit the documents requested in the June 26, 2009 email and to update his
application as may be necessary.
3.
I do not state a question of general
importance for certification.
4.
I make no
order for costs.
“Leonard
S. Mandamin”
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