Date: 20061123
Docket: IMM-419-06
Citation: 2006 FC 1399
Ottawa, Ontario, November 23, 2006
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
USMAN
ILAHI
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
In 2001, Mr. Usman Ilahi, a citizen of Pakistan, applied to
become a permanent resident in Canada as a skilled worker. He submitted his
application to the Canadian visa office in Islamabad. He corresponded with the
office on numerous occasions, updating his coordinates, paying the required
fees and requesting an interview. In December 2005, an immigration officer
informed Mr. Ilahi that he had failed to attend a scheduled interview and,
based solely on a review of his supporting documents, that his application was
denied.
[2]
Mr. Ilahi submits that he never received notice of his interview and
that his application was unfairly dismissed. He asks me to order a
re-assessment by a different officer.
[3]
I agree that Mr. Ilahi was treated unfairly and must, therefore,
allow this application for judicial review.
I. Issue
[4]
Has the respondent established that it informed Mr. Ilahi of his
interview?
II. Analysis
(a) Factual
Background
[5]
As mentioned, Mr. Ilahi kept in close contact with the visa
office. For example, he sent two letters in August 2001 notifying the office of
a change of address and his new fax number. He also asked that he be given 2-3
months’ notice of an interview because of the difficulty of traveling between
Lahore and Islamabad. In 2002, he confirmed his coordinates and asked that his
interview notice be sent by courier, for which he would gladly pay. In August
2002, he specifically requested an early interview and repeated his offer to
pay for a courier. His consultant supplied another change of address in June
2005. It is clear that Mr. Ilahi diligently pursued his application and did
everything necessary to ensure that he would receive all correspondence from
the visa office.
(b) The Duty
to Prove Notice
[6]
Mr. Ilahi suggests that it was unfair for the officer to evaluate his
application without an interview. He states in his affidavit that he did not
receive notice of his interview and, therefore, should not be penalized for
failing to attend. He argues that he should succeed on his judicial review
unless the respondent can prove that he received his interview notice.
[7]
I agree that officers have a duty to give notice of an interview. But I
do not agree with Mr. Ilahi that the respondent must prove that he received his
notice. However, the respondent does have to prove that the officer sent an
interview notice to the applicant: Canada (Attorney General) v. Herrera,
[2001] F.C.J. No. 120 (C.A.) (QL). Implicit in this obligation is a duty to
send the notice to the correct address. It falls to an applicant to ensure that
the visa office is kept informed of his or her current address. Mr. Ilahi
clearly did so here.
[8]
The respondent argues that the officer met his obligation by sending a
letter to Mr. Ilahi by regular mail in November 2005, informing him of an
interview the following month. The electronic notes on Mr. Ilahi’s file
indicate that a letter was indeed sent to him after his address had been
verified in his paper file. However, the respondent cannot produce a copy of
that letter. Nor does it have any direct evidence of the address to which it
was sent. It asks me to infer that the letter was sent to the correct address
because the subsequent letter, informing Mr. Ilahi that his application was
denied, was sent to the correct address and was duly received. However, I
cannot draw this inference without a copy of the letter, or an indication in
the electronic notes as to where the letter was sent. There would have been at
least three different addresses in Mr. Ilahi’s paper file. I cannot conclude,
without any direct evidence on the point, that the officer used the correct
address.
[9]
Accordingly, I find that the respondent has failed to prove that the
officer sent an interview notice to Mr. Ilahi. Therefore, I must order that Mr.
Ilahi’s application be re-assessed by a different officer, after an interview.
Neither party proposed a question of general importance for me to certify, and
none is stated.
JUDGMENT
THIS COURT’S JUDGMENT IS
that:
1.
The
application for judicial review is allowed;
2.
A
re-assessment of Mr. Ilahi’s application by a different officer is ordered.
3.
No
question of general importance is stated.
“James
W. O’Reilly”
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