Date: 20070223
Docket: IMM-1544-06
Citation: 2007
FC 206
Ottawa, Ontario,
February 23, 2007
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
PRASHANT
SUNDERDAS SAWNANI
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] In
2000, the Applicant, Mr. Prashant Sunderdas Sawnani, applied for
permanent resident status in Canada. In a decision dated February 6, 2006, an Immigration
Officer (Immigration Officer) at the Immigration Section of the Canadian High
Commission in New Delhi (CHC) denied his application.
The Applicant seeks judicial review of that decision.
[2] At least in part, the application for
permanent residence was rejected because the Applicant had not appeared for his
scheduled interview. The Applicant submits that he was never advised of the
interview and that, accordingly, the decision of the Immigration Officer should
be overturned. In contrast, the Respondent submits that a call-in letter was faxed to the Applicant's representative, Worldwide Immigration
Consultancy Services Ltd. (WWICS), on December 30, 2005 to fax number
901725063889. The Respondent presents, as evidence, a copy of a fax
confirmation set out on what appears to be the first page of the letter to the
Applicant.
Issue
[3] This application raises the following issue:
1.
Did the Immigration Officer err in refusing the
application because the Applicant failed to attend the interview due to
circumstances beyond his control?
Analysis
[4] The Applicant submits that the Immigration Officer erred in refusing
his application because he failed to attend the interview. The Applicant relies
on Liviu v. Canada (Minister of Citizenship and Immigration), 61 A.C.W.S. (3d) 1153, 33 Imm. L.R. (2d) 310, [1996] F.C.J. No.
317 (F.C.T.D.) (QL), for the principle that an application should not be
refused if the applicant fails to attend an interview due to circumstances
beyond his control. The Applicant also relies on Canada (Attorney General) v. Herrera, 103
A.C.W.S. (3d) 442, [2001] F.C.J. No. 120 (F.C.A.) (QL), for the principle that
officers have a duty to prove that they sent an interview notice to the
applicant. Further, the Applicant relies on Ilahi v. Canada (Minister of Citizenship and
Immigration), 2006 FC 1399, [2006] F.C.J. No. 1758
(F.C.) (QL), for the principle that visa officers have a duty to send notice of
an interview to the correct address of the applicant.
[5] Finally, the Applicant points to the recent case of Dhoot v.
Canada (Minister of Citizenship and Immigration), 2006 FC 1295, [2006]
F.C.J. No. 1625 (F.C.) (QL), where, under very similar circumstances, judicial
review was allowed on the basis that the court was not satisfied that the
call-in letter was ever sent or faxed to the applicant or the applicant’s
consultant.
[6] There is no question that an applicant’s
failure to attend an interview with a visa officer aimed at completing the
assessment of an application for permanent residence gives the visa officer the
right to assess the application without the benefit of hearing from the
applicant (Su v. Canada (Minister of Citizenship and Immigration) (1998),
152 F.T.R. 136, 81 A.C.W.S. (3d) 867; Voskanova v. Canada (Minister of
Citizenship and Immigration) (1999), 167 F.T.R. 258, 87 A.C.W.S. (3d) 785; Ahluwalia
v. Canada (Minister of Citizenship and Immigration), 103 A.C.W.S. (3d) 590,
[2001] F.C.J. No. 125 (F.C.T.D.) (QL); Scislowicz v. Canada (Minister of
Citizenship and Immigration) (2000), 98 A.C.W.S. (3d) 676, 188 F.T.R. 123; Qazi
v. Canada
(Minister of Citizenship and Immigration), 2006 FC
1177). However, that is not the question before me. The question is not whether
a visa officer may make a decision if an applicant fails to show for an
interview. Rather, the question is whether a rejection decision made in
situations where an applicant claims not to have received notice may be
overturned. Thus, the issue is whether the notice of interview was properly
sent to WWICS.
[7] 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 (Herrara, above; Ilahi, above; Dhoot, above). 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.
[8] I turn to the evidence before me in this
case.
[9] The copy of the call-in letter contained
in the Certified Tribunal Record contains electronic confirmation that the fax
was sent to 90172-5063889. The digit 9 is used to obtain an outside line from
CHC. I am satisfied that this establishes, on a balance of probabilities, that
the call-in letter was sent, by fax, to 0172-5063889.
[10] The next question is whether the fax was
sent to the correct fax number. In support of this application, the Applicant
filed the affidavit of Mr. Devinder Sandhu who is a consultant with WWICS and
the person in charge of the relevant office in India. He does not dispute that 0172-5063889 is a fax number for WWICS. I
also have the affidavit of Mr. Krishan Kumar Jarth, an Immigration Officer at
CHC. In his affidavit, he states as follows:
On December 18,
2006, I spoke with Renu Advani who is the supervisor of the unit responsible
for scheduling interviews. Renu Advani informed me that at least since August
2005, they have used fax number 0172-5063889 for sending convocation letters to
WWICS. Our interview scheduling unit had contacted WWICS office as many of the
fax messages were not being successfully transmitted. The scheduling unit was
told by the WWICS staff to use only Number 0172-5063889 which was not noted on
their letterhead. Subsequent to that instruction, fax messages were
successfully transmitted to that number. I have been shown by the interviewing scheduling
unit interview letters transmitted in August, 2005, October, 2005, and
December, 2005, at fax number 0172-5063889 to WWICS; the Applicants in these
cases attended the interview at New Delhi.
[11] I am satisfied, on a balance of
probabilities, that the call-in letter was transmitted by fax to the offices of
WWICS.
[12] In his affidavit, Mr. Sandhu provides a
number of possible explanations for the failure of a document to be received:
- The scanner of the sending machine is not working properly, which
would result in blank or black reception of the document and give the
sender an ok confirmation report.
2.
The receiving fax machine may have overheated
causing poor or black reception of the document and giving the sender an ok
confirmation report.
3.
The sender may not have fed the document
properly. That is the blank side of the paper may have been faxed thereby
giving an ok confirmation report.
4.
The telephone lines for both sides may not have
been functioning properly.
5.
The paper roll may not have been available at
the receiving fax machine leading to non-receipt of the documents.
[13] All of these explanations are speculative
and simply are not supported by any evidence. In any event, they do not change
my conclusion that the call-in letter was sent to the correct fax number. As
noted earlier, problems on the receiving end of the fax (such as mechanical
failure or improper administrative procedures) are not the responsibility of
the CHC officials (unless, perhaps, they are advised of such problems).
[14] This is not a situation as was encountered
by Justice Kelen in Dhoot, above. In that case, the respondent was
unable to confirm that the letter was faxed to a correct fax number. Justice
Kelen noted that the letterhead of WWICS contained different fax numbers than
that set out on the fax receipt. In the case before me, I have sufficient
evidence to demonstrate that the fax number to which the call-in letter was
sent was that of WWICS.
Conclusion
[15] For the above reasons, I am satisfied, on a
balance of probabilities, that the call-in letter was properly sent to the
Applicant. The Applicant argued no other grounds for overturning the decision
of the Immigration Officer to deny the application for permanent residence. The
application for judicial review will be dismissed.
[16] Neither
party proposed a question for certification. I agree that the issues in this
case do not raise a question of general importance and will not certify a
question.
ORDER
This
Court orders that:
- The application for judicial review is dismissed; and
- No question of general importance is certified.
"Judith A. Snider"
____________________________
Judge
Email this Content