Docket: IMM-6852-11
Citation: 2012 FC 485
Ottawa, Ontario, April 25, 2012
PRESENT: The Honourable Mr. Justice Martineau
BETWEEN:
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SONER CAGLAYAN
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The
applicant, Mr. Caglayan, is seeking judicial review of the decision of a visa
officer at the Embassy of Canada in Ankara, Turkey [visa officer], dated
September 16, 2011, rejecting the applicant’s application for permanent
residence for failure to provide the additional documents sought for in a prior
notice which was apparently sent to the applicant on July 13, 2011.
[2]
For
the reasons that follow, this application for judicial review should be
dismissed.
FACTUAL BACKGROUND
[3]
The
visa officer received Mr. Caglayan’s application for permanent residence under
the investor class on June 27, 2011. On June 29, 2011, the applicant’s
consultant received a letter from the Embassy acknowledging receipt of the
application. On September 16, the applicant’s consultant received another
letter informing him that the application was refused because the applicant had
failed to respond to an earlier notice of the visa officer, dated July 13, 2011
[the Letter], asking him to submit, within the following 60 days, supporting
documents with respect to his personal net worth statement, namely the title
deeds of two commercial places of which he alleged being the owner.
[4]
The
applicant alleges that neither his authorized consultant, whose address was
provided as the applicant’s mailing address in the main application form, nor
himself, received the Letter. The applicant submits that on September 29, 2011,
i.e. two weeks after receipt of the refusal letter, his consultant sent an email
to the Embassy stating that he never received any such request for additional
documents and asked for a few days to comply with the requirement. The Embassy
never replied to this email.
[5]
The
applicant states that he is unaware of whether the Letter was properly sent to
him but there is no reason why he would not have received it if the Letter was
properly addressed to his consultant. In fact, as the applicant’s consultant
attests in his affidavit, he has never had problems of this nature that could
suggest a communication problem resulting from the way he manages his postal
correspondence, or from the postal system, that could explain the non-reception
of the Letter. The applicant’s consultant also mentions that he never received
the information through another means of communication such as email or fax,
all of which were working properly in his office between June 29 and September
27, 2011.
[6]
Furthermore,
the applicant contends that the address mentioned on the envelope that carried
the refusal letter differs from the one that he provided as his mailing
address, both in response to question 14 of his application form and in the
authorization form for the applicant’s consultant to act on his behalf. The
authorization form also included a postal code which did not appear on the
envelope.
[7]
The
Court notes that, in fact, the address of the applicant’s consultant appears
with slight changes in format on the Embassy’s envelope. The applicant provided
his address following the Turkish postal address format in which the building
number and the apartment number, followed by the floor number, appear after the
street name. However, in the Embassy’s Global Case Management System (GCMS),
this information was converted into the apartment-building-street format and
the floor number is omitted.
[8]
The
respondent has filed a copy of the Letter and an affidavit of a Registry Clerk
working at the Canadian Embassy in Ankara, attesting that she
personally sent the Letter by regular mail, using a label printed off the GCMS.
The Registry Clerk also attests that two notes appear on the paper cover
containing the applicant’s file: one from the visa officer stating “Pls send PF
ltr” and one from the Clerk herself indicating the mention “sent” followed by
her initials.
[9]
The
Registry Clerk states that the GCMS uses mandatory fields for all addresses
although efforts are made to ensure that all of the required information is
included in the addresses in a way that it makes sense for the Turkish postal
service. The Registry Clerk mentions that the floor number and the postal code
are not required information and that the same format is used in all
correspondence sent to the address used by the applicant’s consultant,
including the acknowledgement letter of June 29, 2011 and the refusal letter of
September 16, 2011, which the applicant did receive. The Registry Clerk lastly
mentions that the Letter was never returned to the Embassy.
ISSUES AND STANDARD OF
REVIEW
[10]
The
applicant submits that there is a breach of procedural fairness because there
was a failure by the visa officer to provide the applicant with a meaningful
opportunity to submit the required additional documents. Whether the respondent
did or did not send the Letter, the refusal decision should be quashed, unless
the respondent can demonstrate that the applicant has made a mistake which
caused non-reception of the Letter. Conversely, the respondent contends that
the Letter was properly sent to the applicant at the correct address. There is
no indication of delivery failure. Therefore, the risk of non-delivery should
rest on the applicant. Accordingly, there has been no failure to the duty to
act fairly since the Letter clearly invited the applicant to produce additional
documents.
[11]
Neither
party raised the question of the applicable standard of review. However, the
issue whether an applicant has been given proper notice and a meaningful
opportunity to respond by submitting additional documents before a negative
treatment is given to his application for visa on the basis of an apparent failure
to comply with the notice is one of procedural fairness. Accordingly, the
impugned decision should be assessed against the standard of correctness: Yazdani
v Canada (Minister of Citizenship and
Immigration), 2010 FC 885 at paras 23-25 [Yazdani].
ANALYSIS
[12]
Before
determining whether the respondent has satisfied its duty to provide the
applicant with a meaningful opportunity to respond to the visa officer’s
concerns, the Court rejects the applicant’s argument that the minor changes
made in the GCMS to the mailing address as it appeared in the application form
would have resulted in a delivery failure. If two other letters related to the
applicant’s case have been successfully delivered to the consultant’s business
address using the GCMS format, not to mention the letters that the consultant
most probably receives from the Canadian Embassy for other clients that he
represents, there is no reason to believe that this letter was exceptionally
wrongly directed to another address.
[13]
That
said, according to the jurisprudence, the visa officer has a duty to prove that
the notice was actually sent or “went on its way” to the applicant but has no
duty to prove that the applicant received the letter. In practice, this means
that the risk of a communication failure is borne by the respondent if it
cannot be proved that the communication in question was sent by the visa
officer or another person of the Embassy staff (Ilahi
v Canada (Minister of Citizenship and Immigration), 2006
FC 1399 at para 8). On the other hand, once the respondent proves, on a
balance of probabilities, that the communication was sent, it is the applicant
who bears the risk involved in a potential failure to
receive the communication (Yang v Canada (Minister of Citizenship and
Immigration) 2008 FC 124 at para 8 [Yang]; Kaur v Canada
(Minister of Citizenship and Immigration), 2009 FC 935 at para 12; Alavi
v Canada (Minister of Citizenship and Immigration), 2010 FC 969).
[14]
In Ghaloghlyan v Canada
(Minister of Citizenship and Immigration), 2011
FC 1252, the Court recently addressed the question of what constitutes
sufficient evidence to prove that the Letter was sent. The comments made by my
colleague Justice Campbell at paras 8-10 are enlightening:
Thus, by considering
the decisions in Kaur and Alavi together, I find that the
principle to be applied in communication cases is as follows: upon proof on a
balance of probabilities that a document was sent, a rebuttable presumption
arises that the applicant concerned received it, and the applicant’s statement
that it was not received, on its own, does not rebut the presumption.
Thus, the question becomes:
what does it take to prove on a balance of probabilities that a document was
sent? In my opinion, to find that a document was “correctly sent”, as that term
is used in Kaur, it must have been sent to the address supplied by an
applicant by a means capable of verifying that the document actually went on
its way to the applicant.
For example, with
respect to documents, proving that a letter went on its way is verified by
sending it by registered mail and producing documentation that this was the
manner of sending, or by producing an affidavit from the person who actually
posted the letter. Proving that a fax went on its way is verified by producing
a fax log of sent messages confirming the sending. Proving that an email went
on its way is verified by producing a printout of the sender's e-mail sent box
showing the message concerned was addressed to the e-mail address supplied for
sending, and as no indication of non-delivery, the e-mail did not “bounce
back”. Other evidence that a document went on its way might suffice; the
determination in each case depends on the evidence advanced.
[15]
However,
the
jurisprudence has also established that when there is objective evidence that
the correspondence was not received because of a proven communication failure, it is
the respondent who bears the risk. In other words, the respondent has not only
the obligation to put the communication on its way to the addressee but also to
choose a reliable and efficient means of communication. As Justice Mandamin
stated in Zare v Canada
(Minister of Citizenship and Immigration), 2010
FC 1024 at para 40,
“the respondent has an obligation to deal with the Applicant fairly which
goes beyond simply pressing the email send button.”
[16]
The
case of Yazdani, above, involved six applications for a
permanent resident visa filed by the applicants at the visa
office at the Canadian Embassy in Damascus, Syria. The
application files were subsequently transferred to the visa office at the
Canadian Embassy in Warsaw, Poland. At issue before
the Court was an email letter from the visa officer in Warsaw
requesting further
information about the applicants’ work experience and other allegations
they had made in their applications. The applicants claimed that the email
request, to which they had not responded, was never received by their
representatives.
[17]
The
Court found that the automatically generated Delivery Status Notification (DSN)
which indicates that the message has been successfully relayed to the
recipient does not mean that the message has been delivered because the
notification itself mentions that the message may not be generated by the
destination but from an intermediate server. Moreover, at para 52 of the
decision, Justice Mandamin mentioned that although there did not appear to be
any fault on the part of the visa officer who sent the emails (save for a
misunderstanding of the DSN message), the respondent could be faulted for
having unilaterally decided to transfer the applicants’ files from one country
to another without notifying the applicants of the transfer and without taking
the necessary steps to verify that email communications were open and
functioning between the visa office in charge of the files and the applicants’
consultants.
[18]
Similarly,
in Zare v Canada (Minister of Citizenship and Immigration), 2010
FC 1024, which presented very similar facts to Yazdani, the application
for judicial review was granted on the basis of evidence of failed email
communication, including an expert opinion, although the Court was satisfied
that the visa officer has acted in good faith.
[19]
In
the case at bar, I am ready to accept that the applicant’s consultant
adequately managed his postal correspondence and is not at fault for the
non-delivery of the notice. However, contrary to what happened in Yazdani
or in Zare, above, I am unable to
find any fault or shortcoming on the part of the respondent or any evidence or
indication of failed delivery. The simple fact that the applicant has
produced evidence that his consultant did not receive the Letter must be
weighed with the other evidence on record, and I am satisfied here, on a
balance of probabilities, that there was compliance by the respondent to the
duty to give notice (Yang, above, at paras 8‑9). Moreover, I
respectfully disagree with the applicant’s reading of Yazdani, above,
suggesting that whenever there is no evidence of fault of any party the
respondent must assume the risk of non-delivery. This amounts to assume that
the respondent has not only to prove that the mail was sent to the applicant,
but also that it was eventually received by the latter. Such proposition or
interpretation would be contrary to past jurisprudence of the Court.
[20]
In
final analysis, I am satisfied that, on a balance of
probabilities, the Registry Clerk did put the Letter on its way to the
applicant, using the correct address and a reasonably reliable means of
communication. Moreover, I find that the applicant has not rebutted the presumption
by demonstrating that there has been an indication or a risk of delivery
failure, or otherwise. Therefore, in absence of a duty bearing on the respondent
to establish receipt of the Letter by the addressee, I must find that there has
been no breach of procedural fairness in the circumstances, and
this, despite the allegation that the applicant’s consultant did not receive
the Letter.
[21]
For all these reasons, the present application for judicial
review must be dismissed, but it appears necessary to make a number of
additional comments in order to secure the just, most expeditious and least
expensive determination of the suit to this proceeding.
[22]
The Court notes that the visa officer who made the impugned
decision is already seized of a request for reconsideration, which was left
unanswered, most likely because of the evidence of the present judicial review
proceeding. However, in practice, because of the short delays, the applicant
was forced to institute the present judicial review proceeding. Certainly,
there could have been a prompt administrative and less expensive solution than
this judicial proceeding. The sought documents had been finally provided to the
agent and there was certainly a reasonable excuse for not having sent same
earlier. However, it would have been simpler and less costly for both sides if
the visa officer had simply addressed the merit of the visa application
following the applicant’s prompt request for reconsideration.
[23]
In
other words, while the visa officer may have acted in the strict legality in
rendering the impugned decision at the time it did so, the requirement that
justice must not only be done but also appear to be done is such that the
immigration system can function only with the collaboration of eminently reasonable
beings. The maintenance of an appropriate equilibrium in the immigration system
goes beyond formal justice and this is where equity comes into play. Visa
applications are not court proceedings and visa officers are not tribunals
tasked with the mandate to finally decide opposing claims. The functus
officio principle should not be applied strictly in this case. Accepting
that the applicant is not at fault, it would be highly unfair and unjust today
that his visa application file be simply closed, that he be required to pay
another processing fee, and that he has to suffer unnecessary delays in the
treatment of a fresh application. Accordingly, it would only be fair and just
in the circumstances that the visa officer reconsider its earlier decision in
light of the new documentation tendered with the reconsideration request. In
dismissing the present application on the basis that, technically speaking,
there has been no breach of the duty to act fairly, I can only urge the
Minister to be sensitive to this reality.
[24]
Neither party has proposed a question of general importance for
certification and none is certified.
JUDGMENT
THIS COURT’S
JUDGMENT is that this application for judicial review is dismissed. No question of general
importance is certified.
“Luc
Martineau”
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