Docket: IMM-2786-14
Citation:
2015 FC 900
Ottawa, Ontario, July 23, 2015
PRESENT: The
Honourable Mr. Justice Boswell
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BETWEEN:
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DHARMENDRAKUMAR
CHANDRAKANTBHAI PATEL
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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.
Introduction and Background
[1]
The Applicant is a citizen of India. He applied
for a permanent resident visa as a member of the federal skilled workers class
on June 14, 2010, claiming to be a computer network technician (National
Occupational Classification 2011, code 2281) and a computer and information
systems manager (code 0213).
[2]
The notes recorded in the global case management
system [GCMS] indicate that the visa application was proceeding smoothly until
August 20, 2013. On that date, Rakesh Goel, a program assistant at the High
Commission of Canada in New Delhi, allegedly sent an e-mail to the Applicant
asking him to submit a number of documents within 45 days, including updated
application forms and police clearances. The Applicant denies receiving this
e-mail and there is no copy of it in the certified tribunal record [CTR]. Mr.
Goel did not attach a copy of the alleged e-mail to his affidavit.
[3]
By letter dated February 12, 2014, a visa
officer [Officer] refused the Applicant’s application for permanent residence.
After noting that subsection 16(1) of the Immigration and Refugee Protection
Act, SC 2001, c 27 [Act] obligates applicants to produce all
relevant evidence and documents which are reasonably required, the Officer
noted that the Applicant had not supplied any of the documents allegedly
requested on August 20, 2013. The Officer therefore refused the application
pursuant to subsection 11(1) of the Act, stating in the refusal letter
that “I am not satisfied that you are not inadmissible
and that you meet the requirements of the Act.”
[4]
The Applicant’s representative received the
refusal letter on February 28, 2014. She testifies in her affidavit that she
sent an e-mail to the visa office on March 3, 2014, saying that neither she nor
her client had ever received any e-mail dated August 20, 2013. She also states
that her office inquired about the status of the Applicant’s application in
October, 2013, and no outstanding issues were revealed. She therefore asked the
visa office to re-open the application and permit her client to submit the
requested information. There is nothing in the CTR to indicate any response to
this request to re-open the application.
[5]
Pursuant to subsection 72(1) of the Act,
the Applicant now seeks judicial review of the Officer’s decision to deny his
application for permanent residence as a member of the federal skilled workers
class. He asks the Court to set aside the Officer’s decision and return the
matter to a different visa officer for re-determination. He also requests an
award of $5,000.00 in costs.
II.
Issues
[6]
This application raises the following issues
which will be sequentially addressed below:
1.
What is the applicable standard of review?
2.
Did the Officer fail to observe a principle of
natural justice, procedural fairness, or other procedure the Officer was
required by law to observe?
3.
Are costs warranted in this matter?
III.
Analysis
A.
What is the applicable standard of review?
[7]
The Applicant submits that the correctness
standard applies since the only issue is whether it was procedurally unfair
that he was expected to supply information requested in an e‑mail which
he never received (citing e.g. Trivedi v Canada (Citizenship and
Immigration), 2014 FC 766 at paragraph 9, 29 Imm LR (4th) 131 [Trivedi]).
[8]
The Respondent acknowledges that if the
Applicant proves that there was a breach of procedural fairness, then correctness
would be the applicable standard of review.
[9]
I agree that the correctness standard applies in
this case because the central issue is whether the process used to deny the
Applicant’s application for permanent residence was unfair (Mission
Institution v Khela, 2014 SCC 24 at paragraph 79, [2014] 1 S.C.R. 502).
B.
Did the Officer fail to observe a principle of
natural justice, procedural fairness or other procedure the Officer was
required by law to observe?
[10]
The Applicant submits it was procedurally unfair
to expect him to supply information requested in an e-mail he never received.
The Applicant and his representative both testified in their respective
affidavits that they never received any e-mail dated August 20, 2013. This
being so, the Applicant says the onus is on the Respondent to prove that the
e-mail was actually sent or “went on its way” to
him (citing Caglayan v Canada (Citizenship and Immigration), 2012 FC 485
at paragraph 13, 408 FTR 192 [Caglayan]). That, the Applicant says, is
typically verified by producing a printout of the sender's e-mail sent box,
showing that the message concerned was addressed to the correct e-mail address
and that the e-mail did not “bounce back”
(citing Ghaloghlyan v Canada (Citizenship and Immigration), 2011 FC 1252
at paragraph 10, 5 Imm LR (4th) 307 [Ghaloghlyan]).
[11]
The Applicant points out that the Respondent has
not even supplied a copy of the supposed e-mail, let alone any printouts
showing such an e-mail in Mr. Goel’s sent box. The Respondent presented only
Mr. Goel’s mere assertions that he sent the e-mail and did not receive any
notification that transmission of the e-mail failed; this, the Applicant
argues, is not sufficient. The Applicant relies on Asoyan v Canada
(Citizenship and Immigration), 2015 FC 206 at paragraph 24 [Asoyan],
where Mr. Justice Peter Annis stated that the Respondent is “required to exhaust all reasonable mechanisms available on
email programs to ensure receipt of their important transmissions.”
[12]
The Applicant therefore submits that there was a
breach of procedural fairness. Since he never received the e-mail allegedly
sent to him on August 20, 2013, his failure to supply the requested
documentation should not have been held against him under either subsection
11(1) or subsection 16(1) of the Act. The Applicant further submits that
because he made status inquiries in October, 2013, this should have prompted
the visa office to realize he had never received a request for documents and to
resend the e-mail. Also, the Applicant complains that the visa office should
have accepted his request to re-open the application upon being told he had not
received the alleged e-mail (citing Caglayan at paragraph 23).
[13]
According to the Respondent though, the
Applicant has not proven that he probably never received the August 20, 2013,
e-mail. The Respondent points out that the GCMS notes indicate that the e-mail
requesting updated documents was sent on August 20, 2013, to “info@entrypointcanada.com”, which was the e-mail
address previously used to successfully communicate with the Applicant. The
Respondent also notes that there had not been any notification that delivery of
the e-mail was unsuccessful. Mr. Goel confirms this in his affidavit, the
Respondent says, and the Applicant chose not to cross-examine him. Thus, the
Respondent submits that the Applicant probably received the e-mail and the
application should be dismissed.
[14]
Mr. Goel’s notes in the GCMS dated August 20,
2013, state, in part, as follows:
Electronic file reviewed without paper file.
File appears ready for medical and generic document request letter. Request
letter and medical forms emailed to updated email ID this date. The following
items requested 1. Updated IMM8. 2. Updated Schedule 1 for applicant and all
family members over the age of 18. 3. Updated 5406 for applicant and all family
members over the age of 18. 4. Educational documents and Educational History
Form for dependents (if over the age of 22 at the time of application) 6.
Updated Proof of funds 7. Updated Police Clearances for all family members over
the age of 18 covering the period of time since last PCC. 8. Travel History for
applicant and all family members over the age of 18. 9. Three (3) photos for
each applicant 10. Indian Mailing address along with information for Nepal
residents CIIP information also sent to pa. Confirmation of email is pasted
below: From: DELHI (IMMIGRATION) Sent: August 20, 2013 9:38 AM To:
‘info@entrypointcanada.com’ Subject: FILE: B057760835 NAME: PATEL,
DHAMENDRAKUMAR CHANDRAKANTBHAI
[15]
However, upon review of the CTR, there is no
copy of any e-mail dated August 20, 2013, and there also is no copy of any “request letter” bearing such date. In addition, the
refusal letter dated February 12, 2014, refers to a “letter
dated 20 August 2013”. Assuming that this is the letter referred to in
Mr. Goel’s notes, its absence from the CTR tends to substantiate the evidence
of the Applicant and his representative that neither of them received an e-mail
dated August 20, 2013. It is troublesome, to say the least, that no copy of the
e-mail allegedly sent to the Applicant’s representative is in the CTR. I also
infer that no electronic copy of this e-mail could be found in Mr. Goel’s sent
box or anywhere else, since none was attached to the affidavit of Mr. Goel.
[16]
Even when the duty of procedural fairness owed
by an administrative decision-maker is fairly minimal, as is the case here with
respect to the Officer’s decision, persons directly affected by an
administrative decision are usually entitled to sufficient notice that they can
meaningfully participate in the process (Public Service Alliance of Canada v
Canada (AG), 2013 FC 918 at paragraphs 58-60, 439 FTR 11; Canada (AG) v
Mavi, 2011 SCC 30 at paragraph 45, [2011] 2 S.C.R. 504; Baker v Canada
(Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at paragraph 22,
174 DLR (4th) 193). The precise content of the notice required will vary
depending on the type of decision. At a minimum though, the notice should
usually ensure that the affected individuals “possess
sufficient information to enable them ‘(1) to make representations on their own
behalf; or (2) to appear at a hearing or inquiry (if one is held); and (3)
effectively to prepare their own case and to answer the case (if any) they have
to meet’ ” (Donald JM Brown & the Honourable John M Evans, Judicial
Review of Administrative Action in Canada, vol 2 (Toronto: Thomson Reuters,
2014) (loose-leaf updated 2014), ch 9 at 1, citing Henry Woolf, Jeffrey Jowell
& Andrew Le Sueur, De Smith’s Judicial Review, 6th ed (London: Sweet
& Maxwell, 2007) at 380).
[17]
In this case, there is no question that the
Applicant was entitled to notice that his application would be refused if he
did not update it, and the visa office allegedly fulfilled that obligation by
sending him an e-mail. The main questions for determination, therefore, are
what must be done to prove that an e-mail was properly sent by a visa office
and who bears the risk of a failed e-mail communication. These questions are
informed by the law on failed communications generally, so it is insightful to
review some of the pertinent case law.
[18]
It is convenient to start with Anwar v Canada
(Minister of Citizenship and Immigration), 2004 FC 1202, 260 FTR 261 [Anwar].
Anwar does not concern a visa application, but it offers an example of a
similar communication problem in the context of a refugee hearing. In Anwar,
the Refugee Protection Division had declared a refugee claim abandoned because
the applicant had not shown up for the hearing, and the applicant complained
that he had never received notice of the hearing. Although notice had been sent
to the refugee claimant’s last known address, the Court allowed the application
for judicial review because there was “no evidence on
the tribunal record that notice of the hearing was actually received by
either the applicant or his counsel despite inquiries made by the former
counsel for the respondent” (Anwar at paragraph 21, emphasis in
original).
[19]
The approach in Anwar can be contrasted
with that taken for visa applications in Ilahi v Canada (Citizenship and
Immigration), 2006 FC 1399, 58 Imm LR (3d) 52 [Ilahi], where an
applicant for a visa complained that he never received notice of an interview
which the electronic notes said had been mailed to him. In Ilahi, the
Court found (at paragraph 7) that the Minister of Citizenship and Immigration
[Minister] did not need to prove that the notice was received. However, the
Minister was required to prove that the notice was sent, and the Court (at
paragraph 8) set aside the decision because the Minister could not produce a
copy of the alleged letter and did not present any direct evidence of the
address to which it was sent.
[20]
Ilahi was
followed in Sawnani v Canada (Citizenship and Immigration), 2007 FC 206,
60 Imm LR (3d) 154 [Sawnani], and in Pravinbhai Shah v Canada
(Citizenship and Immigration), 2007 FC 207 [Shah], but to the
opposite result. In each of Sawnani and Shah, the Court dealt
with faxed notices of interviews that were allegedly never received, yet the
facsimile transmission sheets confirmed that the documents had been received at
the correct number. The Court dismissed the applications in Sawnani and Shah,
finding that any failure in communication was the fault of the recipients.
[21]
A similar situation arose in Yang v Canada
(Citizenship and Immigration), 2008 FC 124, 79 Admin LR (4th) 195 [Yang],
where an applicant’s visa application was refused because he did not supply
information that had been requested in a letter. The applicant in Yang
relied on Anwar to argue that the Minister was required to prove that he
had actually received the request letter, but the Court distinguished Anwar
on the basis that it dealt with a refugee claim. The Court determined (at paragraphs
13-15) that it would be overly burdensome to impose the same requirements on
visa offices due to the heavy volume of applications, and also because
applicants for a visa can immediately re-apply as soon as their applications
are refused.
[22]
The jurisprudence cited above was applied to
e-mail communications in Kaur v Canada (Citizenship and Immigration),
2009 FC 935 [Kaur]. Similar to the present case, the visa application in
Kaur had been refused because the applicant never responded to an
e-mailed request for more information. In dismissing the application for
judicial review, the Court stated as follows:
[11] Mr. Hayer’s assumption that the
High Commission would continue to communicate by regular mail was, as the facts
attest, a dangerous one. It was not reasonable for him to expect the High
Commission to figure out from the absence of an e-mail address on his last
communication that his e-mail was no longer functioning. This was a risk which
Ms. Kaur and [her counsel] Mr. Hayer could have avoided by the simple step of
advising the High Commission that the previously identified e-mail address was
no longer valid, just as Mr. Hayer had done for his postal address. E-mail is,
after all, a standard method of business communication. It is fast, efficient
and reliable and it was not unreasonable or unfair for the High Commission to
have relied upon it. In these circumstances the failed e-mail delivery was
solely caused by Mr. Hayer’s unwarranted assumption and by the failure to
provide complete and accurate contact information to the High Commission.
[12] In summary, 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.
[23]
Kaur was followed
in Zhang v Canada (Citizenship and Immigration), 2010 FC 75 at
paragraphs 13-14, 362 FTR 277, where the Court inferred that the failure to
receive an e-mail was the fault of the applicant and her counsel.
[24]
The next significant cases to note are Abboud
v Canada (Citizenship and Immigration), 2010 FC 876 [Abboud], Yazdani
v Canada (Citizenship and Immigration), 2010 FC 885, 324 DLR (4th) 552 [Yazdani],
Alavi v Canada (Citizenship and Immigration), 2010 FC 969, 92 Imm LR
(3d) 170 [Alavi], and Zare v Canada (Citizenship and Immigration),
2010 FC 1024, [2012] 2 FCR 48 [Zare] [collectively, the Warsaw cases].
The facts in each of these cases are similar; visa applications were
transferred from a visa office in Damascus, Syria, to one in Warsaw, Poland,
and the first e-mail from the Warsaw office to each applicant was a request for
information. None of the applicants received these e-mails, and their
applications were refused because they did not respond.
[25]
The Court found in Abboud (at paragraphs
13 and 16) and in Alavi (at paragraphs 10-11) that the e-mails had not
been properly sent, and consequently allowed the applications on that basis.
The Court arguably went further in Yazdani and Zare.
[26]
In Yazdani, the Court found (at
paragraphs 35 and 48) that, while the e-mails were sent to the correct
addresses, the messages were not received because the e-mail communication
system failed for unknown reasons. After reviewing many of the cases cited
above, the Court stated that they turned on whether the sender or recipient of
the e-mail was found at fault. In allowing the application, the Court in Yazdani
determined that the applicant was not at fault and that the respondent Minister
had chosen to send important e-mails from a new office for the very first time
without putting any safeguards in place. Noting that the use of e-mail is
efficient and it would be inappropriate to discourage its use, the Court
concluded in Yazdani that the Minister should bear the risk of this
particular communication failure.
[27]
In Zare, the Court followed Yazdani
and summarized the law as follows:
[48] …When a visa officer sends an
email to an applicant who has provided an email address, there is a presumption
that the email message has been conveyed to the intended recipient. However
when the applicant proves with credible evidence that the email was not
received, the presumption is displaced and more is required to establish the
email request has been communicated or properly sent.
[49] Section 16 of IRPA
contemplates a visa officer’s request is made to an applicant. An email request
that goes astray is not a request made to an applicant as contemplated by
section 16. One might say…it was not properly sent.
[28]
The next notable case is Ghaloghlyan, which
concerned an application under subsection 25(1) of the Act that was
refused because the applicant never responded to a letter purportedly mailed to
him. In Ghaloghlyan, the Court considered Kaur and Alavi
and concluded (at paragraph 8) that, “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.” The
Court went on to say the following:
[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. [Emphasis in original]
[29]
The jurisprudence concerning failed
communications was further considered in Caglayan, where the Court dealt
with a mailed letter which was not received by an applicant through no fault of
his own. After reviewing the case law, the Court stated (at paragraph 15) that “the respondent has not only the obligation to put the
communication on its way to the addressee but also to choose a reliable and
efficient means of communication.” Once that was established though, the
Court confirmed (at paragraph 19) that it was the applicant who bears the risk
of non-receipt and also rejected any interpretation of Yazdani that
could suggest otherwise. The Court therefore dismissed the application in Caglayan,
although it encouraged the respondent to reconsider the application.
[30]
A situation similar to Caglayan arose in Halder
v Canada (Citizenship and Immigration), 2012 FC 1346, 14 Imm LR (4th) 289 [Halder],
and again the Court confirmed (at paragraph 48) that “the
risk of a failure of communication shifts to the Applicant if the Respondent is
able to show that, on a balance of probabilities, the communication was sent
and, secondly, that the Respondent had no reason to think that the
communication had failed.”
[31]
The facts were slightly more complicated in Trivedi
than in most of the cases noted above. In Trivedi, an immigration
officer had sent a request for further information to the applicant’s former residential
address instead of her mailing address, and the letter was returned
undelivered. The officer therefore e-mailed the applicant and asked her to
update her addresses, though the directions on how to do so were ambiguous. The
applicant tried to update her addresses, but failed to do so correctly. Nevertheless,
the Court held that it was improper for the officer to have sent the letter to
the applicant’s residential address instead of her mailing address, and the request
for an updated address did not cure the error because it did not inform the
applicant that she needed to send in new documents. In making this finding, the
Court cautioned (at paragraph 53) that it does not matter if “the refusal of the application would not have occurred ‘but
for’ the Applicant’s failure to properly respond to the August 22 e‑mail,
when it is the Respondent’s duty to provide notice of the substantive
requirement that is at issue.” The Court considered awarding costs to
the applicant and was critical of the respondent Minister’s “choice to litigate the matter to its conclusion based on
principle…rather than simply acknowledging its error” (Trivedi at
paragraph 60). However, the Court in Trivedi refused to grant costs
because “it cannot be said that the law was completely
settled on this point” (Trivedi at paragraph 61).
[32]
In Patel v Canada (Citizenship and
Immigration), 2014 FC 856 [Patel], the Court dealt with two cases
where visa applications were refused because e-mailed requests for information
were never received. The Court dismissed these applications for judicial review
since the Minister had proven that the e-mails were sent in accordance with the
guidelines set out in Ghaloghlyan (at paragraphs 8-10), and the Warsaw
cases were distinguishable since the respondent was not at fault for any
communication failure.
[33]
In addition to Asoyan, Caglayan
and Ghaloghlyan, the Applicant relies on an unreported decision of this
Court in Grenville v Minister of Citizenship and Immigration (1 December
2014), Ottawa IMM-1642-14 (FC) [Grenville]. Following Zare and Ghaloghlyan,
among other cases, the judgment in Grenville set out a two-part test for
whether a failure in communication is a breach of procedural fairness:
[F]irst, the respondent must establish on a
balance of probabilities that the communication was correctly sent to the
applicant or “went on its way”, which, if proven, raises a rebuttable presumption
that the applicant received the communication; and, second, this presumption
may be rebutted by the applicant if she or he shows that the communication was
not received.
This judgment also states that, while a mere
statement that an e-mail was not received is not enough to rebut the
presumption, the presumption could be rebutted “if the
applicant in addition files proof from his or her computer, attaching a screen
shot of the inbox and trash or deleted box to show that the email was not
received”. The applicant in Grenville had done that, and the
respondent had not supplied any proof that the e-mail was sent. The application
for judicial review was therefore allowed in Grenville, but costs were
not awarded to the applicant for the same reasons as in Trivedi.
[34]
In Asoyan, the Court questioned some of
the law on the issue of failed e-mail communications. The visa office in that
case had sent the applicant two e-mails about a month apart, the first
acknowledging that her application had been received and the second asking for
more documentation. The applicant never received either e-mail. Within the time
allotted for a response to the second e-mail, however, she asked the visa
office for an acknowledgment that her application had been received, to which the
first e-mail was again forwarded to her. Her application was eventually denied
by the visa officer for failure to comply with the second e‑mail, but her
application for judicial review was allowed. The Court decided (at paragraphs
17-19) that the fact the applicant asked for an acknowledgment of receipt after
one had already been sent should have indicated to the visa office that its
e-mails were not being received, and responsibility for the communication failure
therefore fell on the respondent in line with Kaur. However, the Court
went further in Asoyan (at paragraphs 20-26) and questioned the idea
that the recipient of an e-mail should bear the risk of communication failure. As
in Yazdani and Zare, the Court found that the rule was unduly
harsh when the applicant was not at fault, and made two additional comments.
First, the general rule at common law was that the sender needed to prove that
a letter reached its recipient, and that only changed with the advent of fax
machines because receipt would be confirmed by the receiving fax machine. No
similar guarantee exists with respect to e-mail communication. Second, the
Court noted that e-mail programs like Microsoft Outlook have mechanisms which
can require recipients to acknowledge receipt of an e-mail, and the Court
opined that visa offices should use such mechanisms.
[35]
The most recent case to note is Khan v Canada
(Citizenship and Immigration), 2015 FC 503 [Khan]. This was another
case where an applicant never received a letter asking for more documentation,
and the Court essentially followed Kaur and Yang when dismissing
the application for judicial review. One complicating factor in Khan was
that the applicant had been advised by telephone about one of the required
documents, and in her cover letter supplying it she had asked the visa office
to: “Please let me know if there is anything else that
I need to provide you with” (Khan at paragraph 6). The Court
found this request by the applicant was not enough to indicate that the
original letter had not been received, and thus concluded that the applicant
had not “rebutted the presumption that she received the
documents” (Khan at paragraph 19).
[36]
Although some of the cases cited above have
tried to reconcile the jurisprudence, the cases are not entirely consistent
with each other. The first line of cases essentially holds that the Minister
need only prove two things: (1) that the impugned communication was sent to an
e-mail address supplied by the applicant; and (2) there has been no indication
that the communication may have failed or bounced-back. If that is proven, then
it does not matter if the applicant received the communication or not, since
the respondent has satisfied the duty of procedural fairness (see: e.g., Kaur
at paragraph 12; Yang at paragraphs 8 and 9; Alavi at paragraph
5; Halder at paragraph 48; Patel at paragraph 16; Khan at
paragraph 13).
[37]
However, in Yazdani and Zare, the
Court was satisfied that the respondent Minister in those cases had sent the
e-mails to the correct addresses and still allowed the judicial review
applications. This was partly based on a fault analysis in Yazdani, but Zare
went even further than that inasmuch as the Court determined that an e-mail
request from a visa officer that goes astray is “not
properly sent” (Zare at paragraph 49). This can also be seen in Ghaloghlyan
when the Court said (at paragraph 8) that “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” (emphasis added). The implication of receipt being a
rebuttable presumption is that it actually matters whether the applicant
received the message, and that is the logic followed in Grenville.
[38]
Caglayan attempts
to reconcile these two lines of cases by saying that the Minister bears the
risk “when there is objective evidence that the
correspondence was not received because of a proven communication failure”
(Caglayan at paragraph 15); but, ultimately, the Court in Caglayan
concluded (at paragraph 19) that the applicant bears the risk of failure where
there is no fault on either side. That could possibly reconcile the fault-based
approach in Yazdani, but is still contrary to at least some of the
comments in Zare.
[39]
Finally, it should be remarked that, while the
decision in Asoyan follows the first approach, the obiter
comments clearly align with the second approach.
[40]
In view of the foregoing, it appears that the
majority view in this Court places the risk of failure on a recipient in
respect of an e-mail communication; yet, the policy-based arguments in Yazdani
and Asoyan suggesting an opposite approach also appear compelling. The
primary rationale for placing the risk on the recipient was stated as follows
in Yang:
[14] …there are good reasons for
preferring the views of Justice O’Reilly [in Ilahi] on the facts of the
case before me. One reason relates to the sheer volume of applications dealt
with every year by multiple CIC offices. Ensuring that each notice was received
would impose an impossible burden on CIC and would, without doubt, impact
negatively on the ability of CIC to deal expeditiously with applications.
[41]
Yang, however,
was a case about regular mail, not e-mail, so the costly alternative being
contemplated was registered mail. The costs of proving receipt of an e-mail are
much lower than traditional mail, and the suggestion in Asoyan that visa
offices should use mechanisms in e-mail programs to require recipients to
acknowledge receipt of an e-mail would entail virtually no cost whatsoever and,
also, could be automatically programmed.
[42]
In this case, though, it is not necessary to
choose between the two lines of cases discussed above. The Respondent has not
even supplied a copy of the alleged e-mail, and Mr. Goel’s affidavit does not
include a printout of his sent box which could confirm that any e-mail was sent
to the correct address (Ghaloghlyan at paragraphs 10-11). Mr. Goel’s
affidavit explains the notes that he made in the GCMS, but even in Ilahi (at
paragraph 8), the Court confirmed that the Respondent cannot simply rely on
electronic notes to prove that a document has been sent to the correct address.
Since the Respondent has not proven that the e-mail was sent, it is a breach of
procedural fairness under either line of cases.
C.
Are costs warranted in this matter?
[43]
The Applicant argues that he is entitled to
costs in the circumstances of this case. In his view, the procedural error was
obvious following the status inquiries, and the visa office should have just
re-opened the application rather than forcing the Applicant through an
expensive judicial review (citing Trivedi at paragraphs 59 and 60).
[44]
The Respondent says that costs are discouraged
by section 22 of the Federal Courts Citizenship, Immigration and Refugee
Protection Rules, SOR/93-22, and submits that there are no special
circumstances which would justify departure from that rule (citing e.g. Ndungu
v Canada (Citizenship and Immigration), 2011 FCA 208 at paragraph 7, 423 NR
228).
[45]
However, in this case it is clear that the
Applicant learned his application had been refused on February 28, 2014, and his
representative promptly advised the Officer three days later that no letter or
e-mail dated August 20, 2013, had been received by him or the Applicant
and requested that the application be re-opened so the required information
could be submitted.
[46]
The evidence in this case establishes that this
letter or e-mail was never sent to the Applicant or to his representative.
While it may be reasonable to imagine that there will be mistakes made by immigration
officers when dealing with thousands of visa applications from around the
world, where the evidence readily shows that there has been a mistake, it
should be rectified. The Respondent here should have done that by re-opening
the application to receive the required documentation.
[47]
The Respondent should not have opposed the
Applicant’s application for judicial review. The Applicant presented clear
evidence that he did not receive the alleged e-mail or letter requesting the
additional documentation. Since no copy of this alleged e-mail could be found,
the Respondent should have recognized that this e-mail or letter was not
properly sent as soon as the Applicant’s representative advised the visa office
that no letter or e-mail was received. If the application had been re-opened as
requested by the Applicant and as this Court has exhorted the Respondent to do
on several occasions (Caglayan at paragraphs 22-23; Patel at
paragraph 23; Trivedi at paragraph 59), this hearing before the Court would
not have been necessary. For this reason there are special circumstances to
award legal costs to the Applicant (see Dhoot v Canada (Citizenship and
Immigration), 2006 FC 1295 at paragraph 19, 57 Imm LR (3d) 153). Furthermore,
this case is not like Trivedi or Grenville; the former involved a
somewhat novel causation issue, and in the latter no clear precedent governed
the result. In contrast, the result in this case was dictated by Ilahi
and Ghaloghlyan. Accordingly, costs shall be awarded to the Applicant in
a fixed lump sum of $3,000.00, inclusive of all disbursements and taxes.
IV.
Conclusion
[48]
In the result, therefore, the application for
judicial review is hereby allowed and the matter is returned for re-determination
by a different visa officer. Neither party suggested a question for
certification; so, no such question is certified.
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