Date: 20100909
Docket: IMM-260-10
Citation: 2010 FC 885
Ottawa, Ontario, September 9, 2010
PRESENT: The Honourable Mr. Justice Mandamin
BETWEEN:
MEHRANGIZ YAZDANI
Applicant
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
Docket: IMM-261-10
DOREH KARIMKHANI
Applicant
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
Docket: IMM-262-10
HAMED JERJISI
Applicant
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
Docket: IMM-318-10
NOUSHIN BAHARESTANI
Applicant
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
Docket: IMM-319-10
HUSSEIN ATAEI-FASHTAMI
Applicant
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
Docket: IMM-321-10
TAHAREH EBRAHIMIFAR
Applicant
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Ms. Mehrangiz Yazdani
has applied for judicial review of an immigration officer’s refusal of her
application for a permanent residence visa, pursuant to section 18 of the Federal
Courts Act (R.S.C., 1985, c. F-7).
[2]
Five other
applicants have made separate applications which all involve the same
underlying facts. The issue is common across all applications: who bears the
risk when email notices are sent by a reviewing visa officer but are not
received by the applicant’s agent who has exercised due diligence?
[3]
At the hearing on
August 11, 2010, I ordered the six applications to be consolidated. My reasons
in this lead application will apply to each of the remaining applications:
Hamed
Jerjisi v. Minister of Citizenship and Immigration IMM-262-10
Doreh
Karimkhani v. Minister of Citizenship and Immigration IMM-261-10
Tahareh
Ebrahimifar v. Minister of Citizenship and Immigration IMM-321-10
Hussein
Ataei-Fastami v. Minister of Citizenship and Immigration IMM-319-10, and
Noushin
Baharestani v. Minister of Citizenship and Immigration IMM-318-10
[4]
For reasons that
follow, I am granting the application for judicial review.
Background
Generally
[5]
All six applicants
filed for permanent residence visas with the Canadian Embassy in Damascus, Syria
between October 24, 2004 and March 21, 2005. Each of these six applicants was
represented by the same immigration consultant. Each applicant had provided the
name and address of the immigration consultant as their contact, indicating his
office email address.
[6]
Mr. Jamil Azimzadeh
(the Consultant) wrote to the Immigration Section of the Canadian Embassy at Damascus submitting new applications and documents for one of the
Applicants, Ms. Yazdani. His letter, dated October 4, 2004, was sent under his
business letterhead and listed his email address.
[7]
Because of the large
number of visa applications in Damascus waiting to be processed, these six visa
files were sent to the Canadian Embassy in Warsaw, Poland for processing between May 27, 2009
and May 28, 2009. A visa officer in the visa section in Warsaw sent emails to each
of the applicants at the Consultant’s email address during the period June 29,
2009 to July 29, 2009 (collectively referred to as the Warsaw emails).
[8]
The June 29, 2009 Warsaw email send to Ms. Yazdani stated in part:
This
is to inform you that your application was transferred to the Canadian Embassy
in Warsaw, Poland for processing. The purpose of this transfer was to
expedite the processing of your application. Please note that all
correspondence pertaining to your file should now be sent to the Canadian
Embassy in Warsaw, Poland at the address provided above.
Please do not send any documents or correspondence to the Canadian Embassy in Damascus, Syria.
…We
are now ready to begin processing your application and require some information
and documents. …
You
are requested to provide all the documents listed in the attached table within
90 days of the date of this letter. …
This
request is made pursuant to subsection 16(1) of the Immigration and Refugee
Protection Act which states that a person who makes an application must produce
all relevant evidence and documents that the officer reasonably requires. …
Therefore, if you fail to comply with this request, your application may be
refused.
…
(emphasis
in original)
[9]
In three cases, the Warsaw
Visa Section received an email delivery status notification (DSN) after the email
was sent, stating:
Subject:
FW: Delivery Status Notification (Relay)
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.
INFO@CIP-CANADA.COM
[10]
The CAIPS notes in these
cases recorded it as a confirmation of receipt or delivery.
[11]
None of the applicants
responded, either directly or through the Consultant.
[12]
Visa officers
reviewed the six files between October 28, 2009 and November 26, 2009. In each
case, the reviewing officer found that the applicant had not provided
information demonstrating that they were eligible for immigration and that they
were not inadmissible to Canada. The visa officer rejected each
application because of the applicant’s failure to comply with the requirement
to provide requested information, as provided in subsection 16(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27(IRPA). Ms. Yazdani’s
application was refused October 28, 2009.
The
Immigration Consultant
[13]
The Consultant, Mr.
Azimzadeh, has been an immigration consultant for eleven years. He is a member
in good standing of the Canadian Society of Immigration Consultants. He has a
successful immigration consulting business.
[14]
Mr. Azimzadeh has
sworn in his affidavit that he never received these six email requests for
further documentation on the visa applications including the one for Ms.
Yazdani.
Response to
Immigration Emails
[15]
Mr. Azimzadeh had 250
immigration files in progress during the period June 28 to August 31,
2009. In his affidavit, he stated that he normally responds to Immigration
Canada correspondence within one day of reception as part of his normal business
practice. He said that he received and responded to email correspondence from
Immigration Canada on 107 immigration files during the period June 28 to August
31, 2009 and listed the file numbers for each to allow for verification of his
statement. These emails were sent or received during the same time period when
the Warsaw emails were sent.
No Deletion
of Emails
[16]
He stated that he
investigated and found there to be no instance of an immigration email deleted
after receipt.
No Spam
Protection Blockage of Emails
[17]
He said that the emails
were not blocked by his spam protection system, since his system delivers all
emails and merely indicates those suspected of being possible spam messages. He
reported that an email relating to one of the contested files, IMM-319-10, was
identified as spam but was nevertheless delivered by his email system. He
attached a copy of that email as specific evidence of the workings of his email
service. This email was the response by Damascus visa office to his inquiry about the
status of that file.
No
Interruptions in Service
[18]
Mr. Azimzadeh also
stated there were no interruptions in email service, no power outages, and no system
crashes in his office.
No Other
Reports of Failed Email Delivery
[19]
He further stated
that, but for the six visa applications files at issue, he has not had any
report of immigration emails sent to his office but not received during the
relevant time period.
No
Automated Reply
[20]
Finally, he stated
that his office does not use an automated email reply to received emails.
Decision
Under Review
[21]
The Visa Officer’s June
29, 2009 decision letter to Ms. Yazdani repeated the statement contained in the
earlier request email that the visa application had been transferred to the
Canadian Embassy in Warsaw, Poland for processing. The Officer
went on to state:
You
were asked by letter…to produce the following evidence and documents within 90
days in order to allow us to assess whether you meet the requirements for
immigration to Canada:
[list
of required documentation]
You
have not provided the information and documents that were requested. In the
absence of the requested documents, I am not satisfied that you are not
inadmissible and that you meet the requirements of the Act. I am therefore
refusing your application.
[22]
The same reasons were
given for refusal of the remaining five applications.
Standard of
Review
[23]
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.
[24]
The question of
whether an immigration 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.
[25]
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
[26]
The relevant
provisions of the Immigration and Refugee Protection Act S.C.2001 c. 27
(IRPA) are:
3(1)
the objectives of this Act with respect to immigration are
…
(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.
|
3. (1)
En matière d’immigration, la présente loi a pour objet :
…
f)
d’atteindre, par la prise de normes uniformes et l’application d’un
traitement efficace, les objectifs fixés pour l’immigration par le
gouvernement fédéral après consultation des provinces;
|
…
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.
|
Issues
[27]
I consider the issues
in these cases to be:
1.
Were the Applicants
provided with notice of the opportunity to update their submissions?
2.
Which party bears the
risk of failed email communications?
Analysis
Were the
Applicants provided with proper notice of the opportunity to update their
submissions?
[28]
From the reasons that
follow, I find that in Ms. Yazdani’s case the crucial Warsaw email in question was sent by the Visa Officer but not
received by the Consultant. I also find that the Consultant was diligent in
maintaining his email system. The same applies in the remaining applicants’
cases.
[29]
The applicants do not
dispute that the email was sent by the Visa Officer. They do not agree,
however, that the delivery of emails was confirmed.
[30]
The Warsaw visa office occasionally noted receipt of a DSN message as
confirmation of reception or delivery of the outgoing email. In two of the
cases, IMM-260-10 Yazdani and IMM-262-10 Jerjisi, visa officers in Warsaw recorded in the CAIPS notes: “confirmation of receipt
received”. In another case, IMM-261-09 Karimkhani, a visa officer recorded in
the CAIPS notes: “confirmation of delivery received”. In the remaining three
cases, there were no CAIPS entries regarding the DSN messages, nor were copies
of any DSN provided.
[31]
Further, the Visa
Officer deposes there was no notice of a delivery failure for any of the six emails
in question.
[32]
It seems
clear from the wording of the DSN message recorded by the Warsaw visa officer that the message
did not mean that the message had been received by the Consultant.
Again, the DSN message stated:
Subject:
Delivery Status Notification (Relay)
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.
INFO@CIP-CANADA.COM
(emphasis
added)
[33]
The
message clearly indicates a “relay” of a message. The Applicant likens this to
a relay race, where a baton is passed from one runner to the next. The
Applicant submits that “relay” does not mean “delivery”. Support for this
position is found in the text of the notification itself, where it says that
the requested delivery status notification “may not be generated by the
destination”. Thus, the message on its face indicates that it has not been
generated by the recipient. It simply confirms that the message had been sent
on to the email address listed in the message. I find the DSN notification confirms the Warsaw email in question was sent but does not confirm it was
received.
[34]
In considering the
Applicant’s evidence, that is the affidavit of the Consultant, I am persuaded
that the Consultant was diligent in maintaining his email system and that it
was functioning properly.
[35]
In result, I am satisfied
that although the Warsaw email was sent but not received.
[36]
It is
clear that the Visa Officer’s email request for additional documentation was a
crucial correspondence. Failure to respond invokes a dismissal on statutory
grounds. The Visa Officer’s request for documentation is an important step in
the visa application process of which an applicant must be aware. The
Applicant, through no fault of her own or of her Consultant, was not aware of
the request.
[37]
I conclude the
Applicant was not provided with notice of the requirement to update her
application.
Which
party bears the risk of failed email communications?
[38]
The rulings on email
follow jurisprudence established for mail and telephone facsimile
transmissions.
[39]
On a question
involving a mailed notice in Ilahi v. Canada
(Minister of Citizenship and Immigration), 2006 FC 1399, Justice O’Reilly held that a visa officer
does not have to prove an applicant received the letter giving notice of an
interview but does have to prove that he had sent the notice. He stated in
paragraph 7:
I agree that officers have a duty to give
notice of an interview. But I do not agree with Mr. Ilahi that the respondent
must prove that he received his notice. However, the respondent does have to
prove that the officer sent an interview notice to the applicant: Canada (Attorney
General) v. Herrera, [2001] F.C.J. No. 120 (Fed. C.A.). Implicit in
this obligation is a duty to send the notice to the correct address. It falls
to an applicant to ensure that the visa office is kept informed of his or her
current address. Mr. Ilahi clearly did so here.
[40]
Justice
Snider, in Yang v. Canada (Minister of Citizenship and
Immigration) 2008
FC 124, held that a visa officer had sent a notice by mail to the correct
address. She had difficulty with the applicant’s evidence that the letter was
not received. Significantly, she found the applicant had not provided
information on the systems that the applicant’s representative had in place, to
ensure mail does not go astray.
[41]
In Shah
v. Canada (Minister of Citizenship and
Immigration),
2007 FC 207 Justice Snider dealt with a case where an applicant claimed he had
not received a telephone facsimile of an interview notice. Justice Snider
stated at para. 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…
While the evidence must be examined in each case, evidence of receipt of the
fax at the number provided by an applicant or his consultant would normally
satisfy that burden. Factors such as the unavailability of a person to receive
the fax, malfunctions of equipment at the receiving end or administrative
errors such as simple failure of a consultant to advise his client are not the
responsibility of the immigration officials.
[42]
In Kaur
v. Canada (Minister of Citizenship and
Immigration),
2009 FC 935 (Kaur) at para. 6, Justice Barnes stated in a case
involving email:
This case presents the not uncommon
problem of a visa applicant’s failure to respond to a request for additional
information because of an apparent communication breakdown. The question for
the Court is, as between the parties, who should bear the consequence of this
failure. As Mr. Garvin aptly put it in argument, according to the authorities,
“it all depends”.
Justice Barnes went on to state 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.
[43]
Justice
Barnes noted that the email address originally provided by Ms. Kaur’s
representative was no longer active. He found that it was unreasonable for the
representative to expect the High Commission to figure out from the absence of
an email address on his last communication that the email he had previously
listed was no longer valid.
[44]
Justice
Barnes later referred to Kaur in Zhang v. Canada (Minister of Citizenship and
Immigration),
2010 FC 75 (Zhang). The facts of the latter case are somewhat similar to
those in the present case. An email was sent from the Canadian Embassy in Beijing to Ms. Zhang’s lawyer in Vancouver, requesting further
documentation. No documentation was ever received, and Ms. Zhang’s application
was refused. However, in Zhang, Justice Barnes noted that Ms. Zhang’s
lawyer did not state in his affidavit that the email was not received, only
that he was not aware of receiving it and that it may have been deleted
accidentally or filtered out by a spam filter. Finally, Justice Barnes
indicated that there was no evidence regarding the steps the lawyer took to
determine whether the email was inadvertently blocked or deleted, nor was there
evidence of the steps he took
to ensure that emails from the Embassy were not blocked as
spam. After reviewing this evidence before him, Justice Barnes stated at paras.
13-14:
The inference I draw from the
evidence before me is that the August 15, 2008 email request to Mr. Wong was
received by his office and either inadvertently blocked or deleted.
Against this factual
background, I can only conclude that the responsibility for the communication
breakdown that occurred rests with the Applicant and her counsel.
[45]
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. 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 a change of email address or blocking by spam
filter), the applicant is to bear the risk.
[46]
The Applicant’s case,
however, is factually different. In the case at hand, the Applicant established the
Consultant’s email address was valid and operating properly.
[47]
This is
not a case where applicants failed to provide updated email addresses, nor is
it a case where an applicant failed to take all necessary precautions to
prevent email delivery failure. This is not a case where there is a lack of
evidence on the steps the applicant’s representative took to establish whether his
email systems were not the cause of the failed email communication. There is
simply no evidence in this case that the Applicant is at fault for the failed email
communication. Unlike in Zhang, it is
not possible for me to infer from the evidence that the Applicant is the cause
of the failed communication.
[48]
I draw an inference
from the evidence in this case that the email communication system has failed
for undetermined cause or causes.
[49]
In the
circumstances of the Applicant’s case, it seems unduly harsh to place the risk
on Applicant, who have properly submitted her application for permanent
residence for processing, provided a valid email address with no evidence of
malfunction, and who was simply waiting for further instructions when she
discovered that her application had been rejected without an assessment of the
merits.
[50]
The
question turns to whether the Respondent should bear the risk. The Applicant acknowledges that there does not appear
to be any fault on the part of the Visa Officer at the Warsaw visa office save for a misunderstanding
of a DSN messages received.
The Applicant
does not make much of this misunderstanding. I agree that this error is of
little significance.
[51]
There is
no indication that the Visa Officer sent the email to the wrong address or
communicated by email when the Applicant had indicated that they did not wish
to receive communication in that manner. However, I do not see this as a
completely no-fault case.
[52]
The fact
is that the Respondent chose to unilaterally transfer the Applicant’s files
from the Damascus visa office to the Warsaw
visa office. There is of course no question the Respondent is entitled to do so
especially considering it was doing so to address a backlog in processing of
visa applications. However, the visa section in Warsaw did not separately notify the
Applicant of the transfer nor did it otherwise verify that email communications
was open between itself and the Applicant’s Consultant.
[53]
In arguing
that it should not bear the risk for failed communication, the Respondent submits that in considering
the procedural fairness practices, one must consider the sheer volume of visa
applications handled by visa offices. The Respondent states any risk could be
mitigated by the Applicant’s or her Consultant not choosing email as a means of
communication.
[54]
However, my review of
the CIC Protocol on Email Communications with Clients suggests a different
view. The CIC Protocol 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.
[55]
The CIC Protocol
recognizes that email communications with clients is a benefit to the
Respondent as well as the client in promoting operational efficiency. The Visa Officer in the Warsaw visa office also deposes that
email is the preferred communication method because it is reliable, timely and
convenient for both applicants and the visa office.
[56]
The CIC Protocol’s
objectives are in accord with the statutory objectives of IRPA, specifically
subsection 3(1)(f) which states:
(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.
[57]
In my view, applicants
turning away from email usage would frustrate the Protocol objective of
enhanced operational efficiency and would be contrary to the IRPA
statutory objective of prompt processing to attain government immigration
goals.
[58]
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.
[59]
Email communication
in visa applications will likely increase in the future. The technology
supporting email will change and it will advance at difference 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 in the
future email communication may occasionally fail outright, I consider the
Respondent to have an obligation to take care in sending critical
communications through email in the visa application process.
[60]
The Respondent must
necessarily have regard to maintaining the objectives of the IRPA in a manner
fair to deserving applicants for immigration visas. To do so in adopting email
communications requires measures which, while not imposing additional burdens
on immigration officers, builds safeguards into the visa applications process
to deal with email failures in crucial communications.
[61]
In the
case at hand, there had been no prior successful email transmission between the
Warsaw visa office and the
Consultant’s office. Nor does the CTC Protocol on Email Communications
contemplate and provide safeguard measures for email transmission failures (such
as alternate follow up by mailing the letter). Finally, the visa application
system does not provide for reconsideration in such circumstances.
[62]
The
Respondent chose to send an important and crucial notice to the Applicant via
email without safeguards in place. Having regard for the foregoing, I conclude
the Respondent bears the risk of an email transmission failure when it sent the
crucial request to the Applicant.
Conclusion
[63]
I find the
Respondent to bear the risk in the Applicant’s case as well as in the related
cases for the failure of email delivery of the crucial request for additional
documentation.
[64]
On the
facts of this case, I allow the judicial review in this application as well as
the related applications included in the consolidation.
[65]
No
party proposed a question of general importance for me to certify and I do not
state any.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that:
1.
The
application for judicial review is allowed. In each of the applications in the
consolidation, the decision of the Officer is quashed and the matter
remitted to a different Immigration Officer for re-determination; and
2.
No
party proposed a question of general importance for me to certify and I do not
state any.
"Leonard S.
Mandamin"