Docket: IMM-7324-13
Citation:
2015 FC 503
Toronto, Ontario, April 20, 2015
PRESENT: The
Honourable Mr. Justice Diner
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Docket: IMM-7324-13
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BETWEEN:
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SHAMAILA KHAN
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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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JUDGMENT AND REASONS
I.
Overview
[1]
This is a judicial review of a decision of an
Officer [Officer] of Citizenship and Immigration Canada [CIC] rejecting the
Applicant’s application for permanent residence [PR] as a member of the Spouse
or Common-Law Partner in Canada class. In a letter dated October 15, 2013, CIC
informed the Applicant that she had failed to submit the documentation required
for approval, as requested by CIC in a letter dated May 31, 2013 [Letter]. As a
result, the Applicant could not establish that she met the requirements of PR
as required by section 72(1)(d) of the Immigration and Refugee Protection
Regulations (SOR/2002-227).
II.
Facts
[2]
The Applicant is a divorced woman from Lahore, Pakistan. She has two children from her previous marriage, who are in her full time
custody. Ms. Khan filed a refugee claim in 2010, which was refused by the
Refugee Protection Division of the Immigration and Refugee Board, with leave
subsequently being dismissed by this Court in August 2012.
[3]
While her refugee claim was being appealed, the
Applicant met her future sponsor at a movie theatre in Toronto. The couple
married in January 2013, and a spousal application for PR was submitted two
days after the marriage, on January 21, 2013.
[4]
The application was submitted by the Applicant's
previous counsel. On May 31, 2013, CIC wrote a letter to the Applicant, having
found the file to be missing necessary documentation needed to assess the
application. The Officer requested specific documentation, including a divorce
certificate and passport information, due by August 29, 2013.
[5]
CIC sent the Letter to the mailing address on
file, the office of her aforementioned counsel, which the Applicant concedes
received correspondence from CIC both prior to and after the Letter
(Applicant’s Record [AR], p 8-9, paras 11, 12; Affidavit of June Tkachuk, p
2-3, paras 7, 9). Ms. Khan claims to never have received the Letter, and
consequently, submits that she was never given an opportunity to respond to its
contents.
[6]
The Applicant deposes in her affidavit that she
was only made aware, over the telephone, that CIC required her divorce
certificate, and that she provided this document to CIC by way of
correspondence dated July 2, 2013 [Response]. Ms. Khan ended her Response advising
CIC to inform her if further documentation was still required of her:
“Please let me know if there is
anything else that I need to provide you with. I look forward to your response.
Thank you"
(Certified Tribunal Record [CTR], p 76).
[7]
On October 15, 2013, CIC refused Ms. Khan’s
application for permanent residence on the basis that she had not complied with
all of the requests for documentation made in the Letter (CTR, p 74). CIC also
sent an approval notice on the same date to her husband, approving his
eligibility as a sponsor for Ms. Khan’s permanent residence application.
III.
Parties’ Positions
[8]
The Applicant submits that it was unreasonable
for the Officer to make a decision on the basis of the missing documents, when
she had clearly intimated in her Response that she believed her application to
be complete. The Applicant contends that this reverses the onus, normally
placed upon applicants, that documents that have been duly mailed have been
received.
[9]
The Applicant further submits that it is
contradictory for the Officer to, on the same day, simultaneously refuse her
permanent residence application while approving her husband as her sponsor.
[10]
The Respondent, in reply, argues that it met the
obligations of procedural fairness. The Letter itemized the documents
requested, and Ms. Khan’s Response only partially fulfilled CIC’s request for
materials. The Applicant provided no reason for why the other documents in the
Letter were not included. CIC took reasonable steps to provide notice to the
Applicant of the deficiencies in her application, and there was no breach of
procedural fairness in this case.
IV.
Issue
[11]
The sole issue is whether CIC breached the
Applicant’s procedural fairness rights by refusing her application on the
grounds of insufficient documentation, despite her prior indication that CIC
should advise her if further documentation was required.
V.
Standard of review
[12]
The standard of review for violations of
procedural fairness in permanent resident applications is correctness (Mission
Institution v Khela, 2014 SCC 24 at para 79; Miah v Canada (Citizenship and Immigration), 2015 FC 36 at para 27; Essaidi v Canada (Citizenship and Immigration), 2011 FC 411 at para 11).
VI.
Analysis
[13]
The jurisprudence makes it clear that where CIC
has no indication that the communication has failed or been misdelivered, the
risk of non-delivery rests with the Applicant (Kaur v Canada (Citizenship and Immigration), 2009 FC 935 at para 12). Otherwise put, once a
decision maker proves on a balance of probabilities that communication was
sent, the onus shifts to the Applicant to demonstrate there was a failure to
receive the communication (Mannil v Canada (Citizenship and Immigration),
2014 FC 70 at para 30). Where CIC has no indication that the communication has
failed or been misdelivered, the risk of non-delivery rests with the Applicant
(Kaur v Canada (Citizenship and Immigration), 2009 FC 935 at para 12).
[14]
As Justice Snider points out in Yang v Canada (Citizenship and Immigration), 2008 FC 124 at para 14, there are good reasons
for placing such an onus on the Applicant. Ensuring that each notice is
received would impose a considerable burden on CIC, and would negatively impact
the ability of the Department to deal with applications expeditiously.
[15]
Circumstances like Ms. Khan’s are not unique. In
Halder v Canada (Citizenship and Immigration), 2012 FC 1346 [Halder],
the Applicant was also requested to provide passport information. The Officer
sent a reminder letter advising of the 30 day deadline to provide these
documents, but when the passport copies were not received, his application was
refused (Halder at paras 7, 12). Justice Russell upheld the decision
upon judicial review.
[16]
Ms. Khan argues that the distinguishing factor
in this case is that, in her Response, she requested notification from CIC if
any further documentation was required. In my view, this is not sufficient to
establish a breach of procedural fairness.
[17]
As Justice Nadon of the Federal Court of Appeal
noted in Kisana v Canada (Citizenship and Immigration), 2009 FCA 189 at
para 45, the requirements of procedural fairness are to be assessed
contextually (see also Ross v Canada (Attorney General), 2015 FC 344 at
para 5; Adams v Canada (Citizenship and Immigration), 2009 FC 1193 at
para 21). I do not foreclose the possibility that CIC’s muteness to an applicant’s
attempt to confirm the sufficiency of her application may in some circumstances
rise to a breach of procedural fairness, if the inquiries are sustained and/or
specific, for example. The facts of this case, however, do not warrant such a
finding.
[18]
It is trite law that the onus is on an applicant
to ensure the completeness and accuracy of her application (Paashazadeh v Canada (Citizenship and Immigration), 2015 FC 327 at para 17). While I am sympathetic
to the Applicant’s efforts to ensure that her application was complete, one
line in one letter cannot shift this onus. If that were the case, every
applicant would include a generic closing statement to the effect of “please get back to me if you notice something missing”
or “I assume this completes my application” with
any application or response, effectively disburdening themselves of their onus.
[19]
Further, it is not clear in this case that the
Applicant failed to receive the Letter. As noted above, the onus is on her to
demonstrate that the document was not received, given the evidence that letters
to that mailing address had been received both prior to and after the Letter
was sent. The Applicant responded to some of the Letter’s requests. Even if the
Response was the result of a phone call from CIC, and not the Letter, it is
reasonable to infer that the agent would have also informed the Applicant of
the documents required. In summary, I do not find that the Applicant has
rebutted the presumption that she received the documents, and see no breach of
procedural fairness in this case.
[20]
I would, however, encourage the Applicant to
re-apply. I wish her the best of luck in making Canada her home.
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