Date: 20070223
Docket: IMM-1670-06
Citation: 2007 FC 207
Ottawa, Ontario, February 23, 2007
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
DHARMESHKUMAR
PRAVINBHAI SHAH
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] In 2000, the Applicant,
Mr. Dharmeshkumar Pravinbhai Shah, applied for permanent resident
status in Canada. In a
decision dated February 2, 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 October 12, 2005 to
fax number 901725063889, along with six other letters convoking clients of
WWICS for interviews. The Respondent presents, as evidence, a copy of a fax
confirmation set out on what is alleged to be the first page of the 21 page fax
that contained the Applicant’s call-in letter.
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?
Preliminary
Motion
[4] At
the commencement of the hearing before me, the Applicant brought a motion to
admit a further affidavit of Mr. Devinder Sandhu who is a consultant with WWICS
and the person in charge of the relevant office in India. In this
further affidavit, he presents, for the first time, evidence regarding one of
the other six call-in letters that he claims were not received. In respect of
that one individual (Mr. Varghese), Mr. Sandhu advises the court that he
notified immigration officials that the faxed call-in letter had been sent to
the wrong number – 901725063889 rather than 911725063889. He further states
that, when he told officials at the High Commission of this error, Mr. Varghese
was provided with another interview date. It is evident that this late evidence
was submitted to demonstrate that immigration officials had sent all 21 pages –
including the call-in letter of the Applicant – to the wrong fax number. There
are a number of reasons for me to dismiss the motion or to give no weight to
this evidence:
1. This
information could and should have been provided earlier. It has been apparent
since at least December 6, 2006, when the Certified Tribunal Record was
provided to the Applicant, that the Applicant’s call-in letter was sent in a
package that included that of Mr. Varghese. At this late date, the Respondent
is unable to cross-examine on this evidence or to provide responding evidence.
Admission of this evidence is fundamentally unfair to the Respondent.
2. I have no
evidence beyond the untested testimony of Mr. Sandhu as to why Mr. Varghese was
provided with another opportunity to appear before a visa officer.
3. The evidence
of a different fax number flies in the face of Mr. Sandhu’s confirmation,
during cross-examination, of the 901725063889 fax number and his
acknowledgement that other faxes had been received.
4. The evidence
also is contrary to the untested evidence of Jyotsna Sethi, the Immigration
Officer at CHC who was responsible for determining the Applicant’s permanent
residence visa application. In his affidavit, Mr. Sethi states that he verified
the fax number with the one in the Applicant’s file.
[5] As I advised
the parties orally, I declined to allow the admission of this late affidavit.
Analysis
[6] 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.
[7] 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.
[8] 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), 188 F.T.R. 123, 98
A.C.W.S. (3d) 676; 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.
[9] 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.
[10] I
turn to the evidence before me in this case. There are two questions. First,
was the 21-page document for which we have confirmation of receipt faxed to the
correct number? Secondly, did the letter to the Applicant form part of that
transmission?
[11] As
noted, the Respondent provided a copy of a page of a 21-page fax that confirms
receipt of the fax at 901725063889. During cross-examination on his original
affidavit, Mr. Sandhu confirmed that 0172-5063889 was a valid WWICS fax number
from October 2005 to January 2006 (Q. 39). The fax number recorded on the fax
sent to WWICS on October 12, 2005 shows the number 901725063889. The first
digit is added to obtain an outside line from the CHC offices. Mr. Sandhu also
acknowledged that he received other faxed call-in letters during the October
2005 to January 2006 period. I am satisfied that, if the letter was sent, it
was sent to the correct fax number.
[12] The
Applicant’s call-in letter was included with call-in letters on six other
immigration files. A total of 21 pages were faxed to 901725063889. The fax
receipt acknowledges receipt at that number of 21/21 pages. However, the
Certified Tribunal Record does not contain the entire 21-page fax. For a
sender, fax receipt is noted only after the transmission of the fax and is
noted on only one page of the entire transmission. The record contains the
first page on which the verification of fax receipt is contained; this first
page was the first page of a letter to a Mr. Varghese (referred to above).
Following this page, the officials who prepared the Certified Tribunal Record
inserted only the entire letter allegedly sent to the Applicant; out of 21
pages, only four pages are included in the record. In the Applicant’s view,
this raises a doubt as to whether the three-page letter to the Applicant
actually formed part of this 21-page fax. If there was no other evidence to
link the fax confirmation page to the call-in letter to the Applicant, I would
likely agree with the Applicant. However, in addition to the fax confirmation
on the first page, we have a hand notation of all seven CHC file numbers that
were part of the transmission. The Applicant’s file number was included on this
list. Further, we have the affidavit of Mr. Jyotsna Sethi, in which he swears
that:
A three-page letter was faxed to the
Applicant’s representative, WWICS, on October 12, 2005, along with six other
three-page letters convoking clients of WWICS for interviews.
Mr. Sethi was not cross-examined on his
affidavit.
[13] Accordingly,
I am satisfied, on a balance of probabilities, that the 21-page fax was sent,
on October 12, 2005, by CHC officials to the correct fax number of WWICS and
that the call-in letter to the Applicant was included in the 21-page fax that
was sent to WWICS.
[14] In
his affidavit, Mr. Sandhu raises a number of possible reasons as to why the fax
may not have been received. Most of these are speculations and, in any event,
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 sender.
[15] 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, Mr. Sandhu confirmed that the fax number was that of WWICS.
Conclusion
[16] 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.
[17] 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:
1. The
application for judicial review is dismissed; and
2. No question
of general importance is certified.
“Judith A. Snider”
____________________________
Judge
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