Docket: IMM-863-11
Citation: 2011 FC 1252
Ottawa,
Ontario, November 2, 2011
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
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AVETIS GHALOGHLYAN
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Applicant
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and
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MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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REASONS FOR ORDER AND ORDER
[1]
The
present Application concerns a humanitarian and compassionate (H&C)
decision respecting a young person who came to Canada under the following
circumstances:
The applicant is a 19 year old
citizen of Armenia. The applicant was sent to
Canada to visit his maternal aunt in March 1999. He was 7 years old.
The applicant’s parents in
Armenia then decided that he should remain in Canada. They made this decision
believing it was in his best interests owing to his fragile health.
The applicant’s parents signed
a paper giving guardianship to his aunt in Canada. The applicant was 8 years old when this
decision was made for him. He has now remained here for over 10 years.
In December 2008, the
applicant’s aunt submitted an H & C application for the applicant. The
evidence contained in the application indicated that the applicant had grown up
in Canada and was established here. He had lived with his Canadian aunt
throughout his childhood and regards her as a mother.
(Applicant’s Memorandum of Law and
Argument, pp.35-36)
[2]
A
primary reason provided by the Officer who denied the Applicant’s request for
relief is that he would suffer no hardship in returning to Armenia because he
would live in the loving care of his parents. On this factual issue, the
Applicant argues that his request for relief was misconducted because the
decision under review was rendered without consideration of all the evidence he
had to offer, and, therefore, in breach of the duty of fairness owed to him.
[3]
The
Applicant’s breach of fairness argument is that the negative H&C decision
was rendered prior to him being provided with the opportunity to submit updated
information that goes to establish a critical change in his family situation in
Armenia. As stated in the Applicant’s affidavit filed in support of the present
Application, the updated information in his possession to supply was that,
since the Applicant’s father is now retired from the Russian military and
qualifies for retirement housing located in Russia, the Applicant’s
parents decided to move to Russia at the expense of the Russian military.
The significance of the updated information is that, if the Applicant were to
return to Armenia after his parents’ move to Russia, he would
not live in their care because he has no access to Russia (Application
Record, p. 14). The Applicant learned of the critical change to his evidence in
the fall of 2010 but did not immediately forward it for consideration because
he was waiting for confirming evidence of his parents’ impending move
(Application Record, p.15).
[4]
The
fairness argument puts a focus on the sequence of uncontested events with
respect to the production of evidence in support of the Applicant’s request for
H&C relief. The Applicant’s application is dated December 22, 2008. In response
to his application, the Applicant received a letter from Immigration and
Citizenship Canada (CIC) dated April 23, 2009 in which the following statement
is made: [TRANSLATION]
Please note that our office is
currently processing a high volume of applications. There may be a delay of
30-42 months in processing your application. Please do not contact our office
for an update of your application. We will inform you if an interview or additional
information is required.
[Emphasis added]
(Certified Tribunal Record, p.19)
[5]
With
respect to the Applicant being provided with the opportunity to supply
additional information, the Respondent’s internal Field Operation Support
System (FOSS) records contain the following notation with respect to a letter
prepared and dated October 21, 2010:
Letter sent to client
requesting the completion and return of client history update form as well as
any other information he would like considered for his H&C appl.
(Respondent’s Record, p.7)
In addition, on the record of the present
Application, the Officer provides the following confirming affidavit evidence:
The Field Operational Support
System (“FOSS”) notes for file no. 3122-3820-8085 indicate that a letter was
sent to the applicant at [his Ottawa address] on October 21, 2010. A copy of
the letter was kept on the file. The letter requested that the applicant
complete a client history form and indicated that the applicant had 30 days to
provide any further information to be considered with his application.
(Respondent’s Record, p. 2)
There is no issue that the address on the
Officer’s letter of request for additional information is the address supplied
by the Applicant for communications with respect to his application.
[6]
The
Respondent argues that an applicant for H&C relief is under a continuing
duty to file additional evidence at it arises, and an H&C officer does not
have a duty to ensure that an applicant has additional information to supply
before rendering a decision. In the present case, I give no weight to this
argument because the Officer was expressly concerned with obtaining additional
information prior to a decision being rendered; this was the purpose of the
preparation of the letter of October 21, 2010.
[7]
With
no knowledge of the Applicant’s updated information, the Officer rejected the
Applicant’s request for relief by letter dated January 17, 2011 after only 21
months of processing time. The Applicant swears that he did not receive the
letter of request. Indeed, he did not learn of the evidence that a letter was
sent until he received the Officer’s reasons for decision on April 20, 2011 (Application
Record, p.15). There is no basis upon which to doubt the truth of the affidavit
evidence filed in the present Application by either the Applicant or the
Officer.
[8]
The
Respondent argues that the fact that the Applicant did not receive the letter of
request has no impact on the evidence that the letter was sent and, therefore,
the rendering of the decision without the Applicant’s updated evidence does not
constitute a reviewable error. In support of this argument the Respondent
relies on the decision in Kaur v Canada (Citizenship and Immigration), 2009 FC 935 where Justice
Barnes makes the following finding at paragraph 12:
[…] 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.
[Emphasis
added]
The Respondent argues that the phrase
“correctly sent” is merely referring to the communication address supplied by
an applicant. However, in Alavi v Canada (Minister of Citizenship & Immigration), 2010 FC 969, Justice
Hughes at paragraph 5 expands on that interpretation to find that proof of
sending is required:
The
principle to be derived from these cases, [Kaur v Canada (Minister of
Citizenship and Immigration), 2009 FC 935; Zhang v Canada (Minister of
Citizenship and Immigration), 2010 FC 75; Abboud v Canada (Minister of
Citizenship and Immigration), 2010 FC 876; and, Yazdani v Canada
(Minister of Citizenship and Immigration), 2010 FC 885] all dealing with
the 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.
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.
[9]
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.
[10]
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.
[11]
In
the present case, I find that, because there is no evidence verifying that the request
letter went on its way to the Applicant, the rebuttal presumption
established on the authority of Kaur does not arise. Therefore, because
the Applicant did not receive due notice to file the additional important
evidence in his possession prior to the decision under review being rendered, I
find a breach of the duty of fairness owed by the Officer to the Applicant,
and, therefore, the decision under review was made in reviewable error.
ORDER
THIS COURT
ORDERS that the decision under review is set aside and the matter is
referred back for redetermination by a differently constituted panel.
There is no
question to certify.
“Douglas R. Campbell”
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