Date:
20121121
Docket:
IMM-1456-12
Citation:
2012 FC 1346
Ottawa, Ontario,
November 21, 2012
PRESENT: The
Honourable Mr. Justice Russell
BETWEEN:
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SOMESH CHANDRA HALDER
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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
INTRODUCTION
[1]
This
is an application under subsection 72(1) of the Immigration and Refugee
Protection Act, SC 2001, c. 27 (Act) for judicial review of the decision of
a Visa Officer (Officer) of the High Commission of Canada in New Delhi, India,
dated 21 November 2011 (Decision), which refused the Applicant’s application
for permanent residence in Canada as a member of the Skilled Worker class.
BACKGROUND
[2]
The
Applicant in a citizen of India. He submitted an application for Permanent
Residence as a Federal Skilled Worker at the High Commission of Canada in New Delhi, India. His application was refused because he failed to submit the documentation
requested by the Officer.
[3]
The
Applicant first submitted his application at the High Commission in New Delhi on 18 April 2010. This application was rejected due to an error in calculating
his adaptability points. The Applicant filed an application for judicial review
which resulted in the Respondent making an offer to settle. The Applicant
accepted the offer on 10 April 2011 and the file was sent back to the High
Commission for determination.
[4]
Not
having heard anything, the Applicant sent a letter to the High Commission dated
24 May 2011 inquiring about the status of his application. On 3 August 2011,
someone from the High Commission called the Applicant’s home and asked to speak
with him. The Applicant was not home, but his wife gave the caller the
Applicant’s cell phone number.
[5]
On
8 August 2011, the Applicant was contacted by someone from the High Commission
who asked him to provide complete copies of the passport of every member of his
family, as well as a copy of his older son’s refusal letter with respect to a
student visa application.
[6]
On
22 August 2011, the Applicant sent the requested documents to the High
Commission via Blue Dart (the DHL agent in India). These documents were
tracked, and were delivered on 23 August 2011. The Applicant provided a copy of
the delivery confirmation. The copies of the passports provided by the
Applicant in this package were not complete; he had only provided a copy of the
biography page and the last page from each of his children’s passports.
[7]
The
Respondent says that it sent a letter to the Applicant on 22 September 2011
advising him that he had 30 days to provide complete copies of all passports. A
copy of this letter is found on page 41 of the Certified Tribunal Record. This
letter was sent by regular mail, without tracking or confirmation of delivery.
The Applicant says that he never received the letter and did not know that the
copies of the passports were incomplete.
[8]
On
16 November 2011, the Officer reviewed the file and determined that the
background checks could not be properly completed without the requested
documentation. The application was refused on 21 November 2011. On 13 December
2011, the Applicant received a letter dated 21 November 2011 stating that his
application had been refused because he did not provide copies of complete passports
(old and new) for himself and his family members.
[9]
Not
understanding what had happened, the Applicant sent a letter to the High
Commission on 13 December 2011 stating that he had never received the 22
September 2011 letter. There was no reply to this letter. On 21 December 2011,
the Applicant sent another letter to the High Commission explaining that his
immigration matter is of high interest to him, that he initially applied in
2010, and that he would not simply neglect to forward the requested documents.
[10]
On
13 January 2012, the Applicant’s counsel received an email from the High
Commission stating that they were unable to trace the package that was
delivered to them by Blue Dart on 22 August 2011. On 17 January 2012, the
Applicant’s counsel replied by email and enclosed the status report of the Blue
Dart package. The Applicant’s counsel advised the High Commission that, if
necessary, he would forward all the required documents again. The
Applicant’s counsel also advised the High Commission that time was of the
essence because the Applicant only had 60 days from the receipt of the refusal
letter to make an application for judicial review.
[11]
On
31 January 2012, the Applicant’s counsel received a response from the High
Commission stating that counsel’s e-mail had been forwarded to the appropriate
section. Applicant’s counsel responded by email on the same day, again
requesting confirmation of receipt of the 22 September 2011 letter.
[12]
On
10 February 2012, the Applicant filed this application for judicial review. On
15 February 2012, Applicant’s counsel received an email from the High
Commission stating that the Applicant’s file was with a Visa Officer and was
under review. On 20 February 2012, the Applicant’s counsel received a copy of a
letter indicating the Applicant’s application for Permanent Residence had been
refused.
DECISION
UNDER REVIEW
[13]
The
Decision in this case consists of a letter dated 21 November 2011 (Refusal
Letter), and the Officer’s notes to the file (Notes).
[14]
The
Refusal Letter, found on page 156 of the Applicant’s Record, states that the
Applicant was asked on 8 August 2011 to produce copies of complete passports
(old and new) for himself and his family members. It then states that a
reminder was sent to the Applicant on 22 September 2011, informing him that he
had 30 days to provide these documents and that if they were not provided his
application would be assessed based on the information already before the
Officer. The Refusal Letter stated that, to date, the High Commission still had
not received these documents, and thus the Applicant’s application was denied
because he had not met the requirements of subsection 11(1) of the Act and the
Officer was not satisfied that the Applicant was not inadmissible.
[15]
The
Officer’s Notes start by reviewing the procedural history of the application.
The entry dated 1 August 2011 says that the Applicant’s son, Angkon, indicated
that he had not been issued any previous refusals, but in fact he has been
refused two study permits. The Notes indicate that the Applicant should be
contacted and told that the documents for his son were not completed properly.
The Notes from 8 August 2011 say that the Officer spoke with the Applicant and
told him to provide full copies of passports for the entire family, and that
the Applicant confirmed that he would forward the documents. The documents were
marked as received on 8 September 2011.
[16]
The
Notes on 21 September 2011 state that the requested documents were not received
and that a letter should be prepared for the Applicant requesting the
additional information. The Notes say the letter was prepared and mailed on 22
September 2011.
[17]
The
Officer wrote in the Notes on 15 November 2011 as follows:
BCrim is outstanding. Based on the fact that the
application originally submitted false information pertaining to his son’s
study permit refusal, I am not prepared to make a BCrim decision without first
reviewing copies of ppts. Applicant has been advised on August 8 and again on
September 22 of the requirement to provide the copies. Required documents have
not been received. Applicant has been advised that failure to provide the
documents could result in the refusal of his application. No extension request
was received by our office.
ECD: Please prepare ERR letter for non compliance
and file back to CEB as soon as it has been completed. Letter to reflect
today’s date.
[18]
The
Notes state that on 21 November 2011 the application was refused, and the
Refusal Letter was mailed to the Applicant on 25 November 2011.
ISSUES
[19]
The
Applicant raises the following issues in this application:
a.
Whether
the Applicant’s right to procedural fairness was violated by the Respondent’s
failure to ensure the Applicant received the 22 September 2011 letter;
b.
Whether
the Officer ignored evidence when rendering the Decision.
STANDARD
OF REVIEW
[20]
The
Supreme Court of Canada in Dunsmuir v New Brunswick, 2008 SCC 9
held that a standard of review analysis need not be conducted in every
instance. Instead, where the standard of review applicable to a particular question
before the court is well-settled by past jurisprudence, the reviewing court may
adopt that standard of review. Only where this search proves fruitless must the
reviewing court undertake a consideration of the four factors comprising the
standard of review analysis.
[21]
The
opportunity to respond to a decision-maker’s concerns is an issue of procedural
fairness (see Karimzada v Canada (Minister of Citizenship and Immigration)
2012 FC 152 at paragraph 10 and Guleed v Canada (Minister of Citizenship
and Immigration) 2012 FC 22 at paragraphs 11 and 12. In Canadian
Union of Public Employees (C.U.P.E.) v Ontario (Minister of Labour) 2003
SCC 29, the Supreme Court of Canada held at paragraph 100 that “It
is for the courts, not the Minister, to provide the legal answer to procedural
fairness questions.” Further, the Federal Court of Appeal in Sketchley
v Canada (Attorney General) 2005 FCA 404 at paragraph 53 held that the “procedural
fairness element is reviewed as a question of law. No deference is due. The
decision-maker has either complied with the content of the duty of fairness
appropriate for the particular circumstances, or has breached this duty.” The
standard of review on the first issue is correctness.
[22]
The second issue goes to the Officer’s use of the discretion
awarded to him or her to award a permanent residence visa. The decision of a
visa officer to grant a permanent residency is reviewable on a standard of
reasonableness (see Perez Enriquez v. Canada (Minister of Citizenship and
Immigration), 2012 FC 1091 at paragraph 4; Torres v Canada (Minister of Citizenship and Immigration), 2011 FC 818 at paragraph 26). Thus, the
standard of review on the second issue is reasonableness.
[23]
When
reviewing a decision on the standard of reasonableness, the analysis will be
concerned with “the existence of justification, transparency and
intelligibility within the decision-making process [and also with] whether the
decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law.” See Dunsmuir, above, at
paragraph 47, and Canada (Minister of Citizenship and Immigration)
v Khosa 2009 SCC 12 at paragraph 59. Put another way, the Court should
intervene only if the Decision was unreasonable in the sense that it falls
outside the “range of possible, acceptable outcomes which are defensible in
respect of the facts and law.”
STATUTORY
PROVISIONS
[24]
The
following provisions of the Act are applicable in these proceedings:
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Application before entering Canada
11. (1) A
foreign national must, before entering Canada, apply to an officer for a visa
or for any other document required by the regulations. The visa or document
may be issued if, following an examination, the officer is satisfied that the
foreign national is not inadmissible and meets the requirements of this Act.
[…]
Obligation — answer truthfully
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.
[…]
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Visa et
documents
11. (1)
L’étranger doit, préalablement à son entrée au Canada, demander à l’agent les
visa et autres documents requis par règlement. L’agent peut les délivrer sur
preuve, à la suite d’un contrôle, que l’étranger n’est pas interdit de
territoire et se conforme à la présente loi.
[…]
Obligation du demandeur
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.
[…]
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ARGUMENTS
The Applicant
Procedural Fairness
[25]
The
Applicant says that whether or not the 22 September 2011 letter was never sent
or got lost in the mail, he never received it. This being the case, his right
to procedural fairness was violated because he was not given a meaningful
opportunity to participate in the determination of his application.
[26]
The
situation at hand is very similar to the one considered in Nizami v Canada (Minister of Citizenship and Immigration), 2008 FC 265 [Nizami].
That case dealt with an applicant who failed to attend an interview because she
never received the notice for it. Justice John O’Keefe said at paragraph 28
that
…Given the applicant’s responsiveness and genuine
interest to immigrate to Canada, I am of the opinion that she did not simply
receive the letter and fail to appear. In light of this finding, I also find
that the applicant was not given sufficient notice of the interview. As a
result, I believe that the applicant was not given a meaningful opportunity to
participate in the process as required by even the low end of the procedural
fairness spectrum. As there has been a breach of the duty of procedural
fairness, the application for judicial review must be allowed and the matter is
referred to a different officer for redetermination.
[27]
The
permanent residence application in the present case was clearly very important
to the Applicant. He had no knowledge that the High Commission wished him to
send more documentation, and he did not receive the 22 September 2011 letter.
Had the Applicant received the letter, he would have simply resent the
documents.
[28]
The
Applicant points to the decision in Abboud v Canada (Minister of Citizenship
and Immigration), 2010 FC 876 [Abboud] as authority that the
Applicant was not awarded procedural fairness. In that decision, Justice Danièle
Tremblay-Lamer said at paragraphs 16-19:
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.
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.
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.
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.
[29]
The
Applicant submits that the 22 September 2011 letter was crucial to the
determination of his application, and it should have been sent by registered
mail, or the Officer should have followed up with the Applicant after not
receiving a response from him. The High Commission had the Applicant’s cell
phone number and could have easily called him. The Applicant did not know he
was required to submit more copies of the passports, and so had no opportunity
to respond to the Officer’s concerns. He submits that he was not afforded
procedural fairness throughout the application process, and the Decision ought
to be quashed and sent back for redetermination.
Reasonableness of the Decision
[30]
The
history of this application demonstrates that the Applicant is dedicated to the
immigration process. It is illogical to think that upon receipt of a request
from the High Commission for something as simple as photocopies of his family’s
passports he would simply neglect to provide them.
[31]
The
Officer did not consider the totality of the evidence before rendering the
Decision. The Officer should have noticed the Applicant’s diligence in pursuing
his immigration matters, and should have acted accordingly. The Applicant
states that Canada (Director of Investigation and Research) v Southam Inc.,
[1997] 1 S.C.R. 748 establishes that a decision is not reasonable if it cannot
stand up to a somewhat probing examination, and the Decision in this case is
unreasonable because it does not meet this threshold.
The
Respondent
[32]
The
Respondent asserts that the visa office had no indication that the 22 September
2011 letter failed to reach the Applicant, and the risk of non-delivery rests
with him. Once it is proven that the communication was sent to the Applicant,
the onus shifts to him. As stated by Justice Roger Hughes in Alavi v Canada (Minister of Citizenship and Immigration), 2010 FC 969 at paragraph 5:
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.
This
principle has been recognized in other cases such as Kaur v Canada (Minister of Citizenship and Immigration), 2009 FC 935 at paragraph 12, and Zare
v Canada (Minister of Citizenship and Immigration), 2010 FC 1024 at
paragraph 36.
[33]
The
Respondent submits that it has proven on a balance of probabilities that the 22
September 2011 letter was sent to the Applicant. It specifically points out
that:
i.A
copy of the letter is contained in the file;
ii.The
address on the letter is identical to the address on the Refusal Letter, which
the Applicant received;
iii.The
Notes indicate that the Officer sent instructions to send the letter;
iv.The
Notes make explicit reference to the letter being sent on 22 September 2011.
[34]
The
evidence in this application is virtually identical to the evidence in Yang
v Canada (Minister of Citizenship and Immigration), 2008 FC 124 [Yang].
In that case, Justice Judith Snider said at paragraph 8:
Having reviewed the record before me, I am satisfied that, on a
balance of probabilities, the March 27 letter was sent, by regular surface
mail, to the address indicated by the Applicant. A copy of the letter is
contained in the file; the address is correct; and, the Computer Assisted
Immigration Processing System (CAIPS) notes make explicit reference to the
sending of the March 27 letter. While the Applicant has produced evidence that
his consultant did not receive the March 27 letter, he does not present
evidence that would lead me to doubt that the letter was sent to the correct
address by reliable means.
The
Respondent submits that the Yang decision is authority that there was no
breach of procedural fairness when the Officer did not ask the Applicant, for a
third time, to supply the missing documents.
[35]
The
Respondent submits that there was no obligation on the Officer to send the
letter by registered mail or to obtain confirmation of its receipt. There is
clear jurisprudence that the Officer was under no obligation to confirm or
prove that the Applicant received the communication (see Yang at
paragraph 14; Ilahi v Canada (Minister of Citizenship and Immigration),
2006 FC 1399 at paragraph 7). The Applicant’s reliance on Nizami and
Abboud is ill-founded; in Nizami there was evidence that the
letter in question was not sent (Nizami at paragraphs 26-28), and in Abboud
there was evidence that should have alerted the visa officer that the email was
not sent (Abboud at paragraph 15). In the present case, there was no
evidence before the Officer that might have led her to believe that the
Applicant had not received the letter.
[36]
The
Respondent points out that in the instructions given to the Applicant on 8
August 2011 he was told to submit complete copies of the passports, and he
indicated that he understood. The Notes confirm that the Applicant understood
the instructions. Thus, the Applicant was given two opportunities to submit the
documents. Not only that, even after the application was refused the Applicant
tried to send in the missing documents, but again he failed to submit
photocopies of the entire passports as requested.
[37]
The
Respondent also notes that in the Applicant’s Memorandum he refers to email
correspondence between himself and the High Commission that took place after
his application was refused. The Respondent says that it is unclear why the
individual in the email dated 16 January 2012 said that the High Commission
never received the documents submitted by the Applicant in August 2011, when in
fact it did. Nevertheless, it is clear from the Notes that the Officer did
receive these documents and considered them before refusing the application.
[38]
The
Federal Court has held that procedural fairness does not require Citizenship
and Immigration Canada to confirm receipts of communications (see Yang at
paragraph 14; Zhang v Canada (Minister of Citizenship and Immigration),
2010 FC 75 at paragraph 14). The Applicant was given two opportunities to
submit the required documentation, and he did not do so. The Respondent submits
that the appropriate remedy in this case is to require the Applicant to
re-apply by submitting the correct documentation.
ANALYSIS
[39]
The
Applicant says that, on 22 August 2011, after receiving a call from an officer
in New Delhi, he “sent the required documents via Blue Dart.” This is not an
accurate statement of what happened. The Notes show that on 8 August 2011, an
officer telephoned the Applicant and advised him to provide a corrected
Schedule-1 for his son with details regarding his previous student visa
applications “and also to provide us with copies of all the pages of passports,
(old and new) for entire family.” The Notes also make clear that the Applicant
“confirmed understanding and stated that he would provide us with the requested
documents.” There is no reason on the evidence before me to doubt the accuracy
of the Notes.
[40]
The
Applicant, however, did not provide complete copies of the passports for all
family members. He only submitted the bio page and the family info page for his
son and daughter. Notwithstanding the Applicant’s failure to comply, a reminder
letter dated 22 September 2011 was sent to him, although he says he did not
receive it.
[41]
I
agree with the Respondent that the evidence before this Court establishes, on a
balance of probabilities, that the letter dated 22 September 2011, was properly
sent. The High Commission had no indication
that the communication failed. Accordingly, the risk of non-delivery rests with
the Applicant.
[42]
As
the Respondent points out, the jurisprudence is clear that once the Minister
proves that a communication was sent to an applicant and the High Commission has
no indication that the communication failed, the risk of non-delivery rests
with the applicant. See Alavi v Canada (Minister of Citizenship and
Immigration), 2010 FC 969 at paragraph 5; Kaur v Canada (Minister of Citizenship and Immigration), 2009 FC 935 paragraph 12; and Zare v Canada (Minister of Citizenship and Immigration), 2010 FC 1024 at paragraph 36.
[43]
In
this case, the Respondent has proven, on a balance of probabilities, that the
letter dated 22 September 2011 was sent to the Applicant. This is because:
(a) A
copy of the letter is contained in the file;
(b) The
address on the letter is identical to the address on the decision letter, which
the Applicant received;
(c) The
Officer’s affidavit confirms that the CAIPS Notes accurately reflect her
assessment of the file, and the CAIPS Notes indicate that the Officer sent
instructions to send the letter in question;
(d) The
CAIPS Notes entered by a Program Assistant (CAIPS initials AM) on September 22
make explicit reference to the letter in question being sent on that date.
[44]
In
Yang, above, Justice Snider found similar evidence to be sufficient to
conclude, on a balance of probabilities, that a letter was sent via regular
mail.
[45]
Accordingly,
the Applicant bears the risk involved in a failure to receive the communication.
This means there was no breach of procedural fairness when the Officer did not
ask the Applicant, for a third time, to supply the missing documents.
[46]
The
Applicant argues that the Officer should have sent the letter at issue by
registered mail or confirmed receipt of the letter before refusing the
application. However, the jurisprudence establishes that the Minister is under
no obligation to confirm or prove that the Applicant received a communication.
See Ilahi v Canada (Minister of Citizenship and Immigration), 2006 FC
1399 at paragraph 7; and Yang, above, at paragraph 14.
[47]
In
support of his argument that the Officer was required to confirm receipt of the
letter dated 22 September 2011, the Applicant relies on Nizami, above,
and Abboud, above. However, in Nizami, there was evidence that
the letter in question was not sent, and in Abboud there was evidence
that should have alerted the officer that the e-mail in question had not been
properly sent. In the present case, the Respondent has proven that the letter
was properly sent, and there was no evidence before the Officer that might have
led her to believe that the Applicant did not receive the letter. Accordingly, in
my view, there was no obligation on the Minister to send the letter in question
by registered mail or confirm receipt, as suggested by the Applicant.
[48]
In
the present case, I have no reason to doubt the Applicant’s evidence that he
did not receive the 22 September 2011 letter. However, this does not end the
matter. The governing jurisprudence tells us, in effect, that the risk of a
failure of communication shifts to the Applicant if the Respondent is able to
show that, on a balance of probabilities, the communication was sent and,
secondly, that the Respondent had no reason to think that the communication had
failed.
[49]
As
Justice Robert Barnes made clear in Kaur v Canada (Minister of Citizenship
and Immigration), 2009 FC 935, at paragraph 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. In the
result, this application must be dismissed.
[50]
Notwithstanding
this clear position of the law, Applicant’s counsel has asked the Court to
consider the serious implications that dismissing this application will have
for the Applicant. While the Court has a great deal of sympathy for the fact
that a negative decision could mean that the Applicant might not be able to
come to Canada, the Court clearly has no general discretion to disregard
established precedent on this basis. Other applicants have also had to suffer
serious consequences of negative decisions.
[51]
There
are reasons for our present system and why the risk must fall on the Applicant.
His counsel has made every effort to distinguish what happened in this case
from the governing jurisprudence, and she has pressed upon the Court in a most
able way the Applicant’s position. In the end, however, the Court must apply
the law as it stands.
[52]
For
reasons already given, there was no obligation on the Respondent to send the
communication in question by registered mail, or to check and ensure that the
22 September 2011 letter was received by the Applicant. Thus, there has been no
breach of procedural fairness in this case. As the issue of whether the Officer
ignored evidence is necessarily intertwined with the procedural fairness issue,
I also find that the Decision was reasonable.
[53]
Counsel
agree there is no question for certification and the Court concurs.
JUDGMENT
THIS
COURT’S JUDGMENT is that
1.
The
application is dismissed.
2.
There
is no question for certification.
“James Russell”
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