Date: 20070306
Docket: IMM-1879-06
Citation: 2007 FC 252
Ottawa, Ontario, March 6,
2007
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
DENNIS
COURTNEY
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. INTRODUCTION
[1]
Mr.
Courtney applied for a humanitarian and compassionate exemption (H&C) in
respect of permanent residence. He had filed material in accordance with the
instructions of the Respondent but the material was not received and therefore
not considered. His H&C was denied. The principal issue in this judicial
review is what are the consequences of this failure to receive and consider the
materials sent by the Applicant.
II. BACKGROUND
[2]
The
Applicant had received a letter from the Respondent dated January 17, 2006 in
respect of his H&C application. The salient parts of which are:
Please send the requested
information/documents to this office within thirty (30) days of the date of
this letter. If you do not, the decision about exemption will be made based
upon the information on your file. If you do not reply within 30 days and
the decision is to refuse your request for an exemption, there is no authority
to re-examine or re-open this decision. If you wished any new information to be
considered, you would have to submit a new application, including new fees.
…
Please do not forward your submissions By
Fax [sic]. Send them by regular mail.
[3]
The
Applicant’s evidence is that he did exactly what he was instructed to do.
[4]
It
is apparent from the Certified Tribunal Record that this information was never
received. The Applicant contends that he was denied natural justice in the
manner in which his application was dealt.
[5]
Unfortunately,
a copy of the information sent was not available. The Respondent questions
whether the information was sent and whether it would have made any difference
to the eventual outcome of the H&C application.
III. ANALYSIS
[6]
It
is troubling that this information was not available or that some attempt to
recreate it was not made. However, the Applicant’s evidence is that it was the
information requested in the January 17, 2006 letter. His evidence went
unchallenged. The Court has no basis upon which to disbelieve Mr. Courtney’s
evidence on this point. The Respondent cannot adequately challenge his
credibility having waived its opportunity to cross-examine.
[7]
As
to the relevance of the information, the Respondent, having invited its filing,
cannot now claim that the information could not possibly make any difference to
the ultimate decision. This is far too speculative a contention upon which to
deny the H&C application. It is also known that it was the H&C form
which, if of no importance, should not be required in any event. Therefore, I
conclude that this information was relevant and could have had some impact on
the H&C decision.
[8]
As
to the Respondent’s suggestion that there is inadequate evidence that the
information was sent, the submission ignores the failure to challenge Mr.
Courtney’s evidence.
[9]
That
evidence included not only the Applicant’s sworn testimony but a letter from
his immigration consultant somewhat corroboratory of his evidence. The
consultant, in her letter, does not say that she saw the Applicant mail the
information but she does say that on January 28, 2006, in Mr. Courtney’s
presence, she prepared the H&C form; that Mr. Courtney left with the forms,
promising to mail them; and that on February 2, 2006 he phoned her to tell her
that he had mailed the H&C application form.
[10]
Therefore,
on the balance of probabilities, one must conclude that the forms were sent on
February 2, 2006. What happened to them – whether lost in the mail or at the
Respondent’s facilities - is unknown.
[11]
It
would be a travesty to hold the Applicant responsible for the failure of
receipt when it was the Respondent who chose the method of delivery. It would
have been so simple to offer the public the option of using registered mail,
fax, or in today’s world, possibly on-line filing.
[12]
Justice
Mactavish has canvassed the issue of lost documents in her decisions Hussain
v. Canada (Minister of
Citizenship and Immigration), 2004 FC 259 and Pramauntanyath v. Canada (Minister of
Citizenship and Immigration), 2004 FC 174. The principles upon which
this type of matter is resolved is whether there is sufficient proof that the
materials were sent, whether the materials were potentially relevant and whether
an applicant bore some responsibility for non-receipt.
[13]
The
fact that, unlike in Justice Mactavish’s case, the Court did not have before it
copies of the materials lost, is not fatal to the Applicant’s case. There was
sufficient evidence as to what was sent to satisfy the burden on the Applicant.
[14]
While
the denial of natural justice was not directly caused by the Respondent, it
arose from following the Respondent’s instructions. As between the two
“innocent” parties, the loss or the responsibility must, in fairness, fall on
the person who directed the method of transmission.
IV. CONCLUSION
[15]
Therefore,
this application for judicial review will be granted. The decision is quashed
and the Applicant may refile his H&C application without the requirement to
pay filing fees (if any). The application should be decided on a fresh record
by a different officer.
[16]
There
is no question for certification.
JUDGMENT
IT IS ORDERED THAT this
application for judicial review is granted. The decision is quashed and the
Applicant may refile his H&C application without the requirement to pay
filing fees (if any). The application should be decided on a fresh record by a
different officer.
“Michael
L. Phelan”
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