Date: 20090921
Docket: IMM-5726-08
Citation: 2009 FC 935
Ottawa, Ontario, September 21, 2009
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
SUKHJEET
KAUR
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
application for judicial review challenges a decision to refuse the Applicant’s
request for a skilled-worker visa. The decision under review was made on
October 20, 2008 from the office of the Canadian High Commission in New Delhi, India. The sole basis for the
decision was the failure by Ms. Kaur and her legal counsel to provide
additional evidence in support of the application including evidence of
language proficiency, and family and financial support. The issue presented by
this application is whether the Respondent or Ms. Kaur should bear the
consequence of an apparent failed communication between them.
I. Background
[2]
Ms. Kaur
is a citizen of India. On October 10, 2003 she
applied for permanent residency under the skilled-worker class. Included with
her application was an authorization which allowed the High Commission to deal
with her “Canadian representative”, Mr. Dalwinder Hayer. That authorization
included a business address, telephone and fax numbers and an e-mail address
for Mr. Hayer. Mr. Hayer provided further documents to the High Commission
under the cover of letters dated September 29, 2003 and March 28, 2004. Those
letters contained the same contact information as the previous authorization,
including Mr. Hayer’s e-mail address. On September 20, 2007 Mr. Hayer sent a
fax to the High Commission providing a new postal address for his office. The
fax page included Mr. Hayer’s telephone and fax numbers which remained
unchanged, but it contained no information about an e-mail address.
[3]
On May 13,
2008 the High Commission sent a lengthy message to Mr. Hayer’s e-mail address.
That e-mail requested considerable additional information and concluded with
the following caveat:
The requested information must be
received in our office within 90 days from the date of this letter. If
we do not receive the requested documents within this specified period we will
make a decision on your application based on the information and documents
already at our disposal. We will not request further documentation to support
your application. You must therefore
submit complete and detailed documents and information at this time.
[Emphasis in original]
When Ms. Kaur failed to reply to this
outstanding request her visa application was refused.
[4]
Ms. Kaur asserts that neither she nor Mr. Hayer ever received the e-mail.
Her affidavit states that the e-mail address used by the High Commission “is
not working” but she has provided no details as to when or why that occurred.
The evidence provided by the Respondent’s witnesses indicates that the request
was sent to Mr. Hayer’s last known e-mail address and that no indication of
non-delivery was received thereafter.
II. Issue
[5]
Did the High Commission err by using Mr. Hayer’s last-known
e-mail address as a method of communicating a request for further information?
III. Analysis
[6]
This case presents the not uncommon problem of a visa applicant’s failure
to respond to a request for additional information because of an apparent communication
breakdown. The question for the Court is, as between the parties, who should
bear the consequence of this failure. As Mr. Garvin aptly put it in argument,
according to the authorities, “it all depends”. For the sake of argument I am
prepared to consider this as an issue of procedural fairness which should be
assessed on the standard of correctness.
[7]
It was argued on behalf of Ms. Kaur that the Respondent’s evidence
confirming the sending of the High Commission e-mail is unreliable and should
not be accepted. There is, however, only one logical inference to be drawn
from the evidence before me which is that the High Commission’s e-mail request
was sent to Mr. Hayer’s last known e-mail address. It is no more than
speculation to suggest otherwise. If one accepts Ms. Kaur’s evidence that Mr.
Hayer’s e-mail address was no longer active it is likely that the communication
was never received and, therefore, never answered. It is against this factual
background that the relevant legal authorities must be applied.
[8]
Mr. Hayer argues that the Respondent must bear the risk in these
circumstances because the High Commission had always used regular mail to
communicate with him and he reasonably assumed that that practice would
continue. He also contends that it was unreasonable for the High Commission visa
officer to assume that his e-mail was still operational when his last
change-of-address communication contained no e-mail reference. This case, he
says, is indistinguishable from Dhoot v. Canada, (Minister
of Citizenship and Immigration), 2006 FC 1295, 57 Imm. L.R. (3d) 153
which involved a failed fax communication from a visa officer. There the
applicant’s failure to attend a requested interview was found to be the
responsibility of the respondent.
[9]
The Respondent has cited the decisions of Justice Judith Snider in Shah
v. Canada (Minister of Citizenship and
Immigration), 2007 FC 207, 155 A.C.W.S. (3d) 656
and Sawnani v. Canada (Minister
of Citizenship and Immigration), 2007 FC 206, 60 Imm. L.R. (3d) 154,
both of which state the following principles:
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.
See Shah, above, at paragraph 9.
[10]
It seems to me that Justice Snider was correct when she
found consistency among the authorities. In Dhoot, above, there was
“overwhelming” evidence that the visa officer’s communication had not been
properly sent to the applicant. Here the situation is different because the
e-mail was sent to an address which was believed to be valid and where no
corrective advice had been provided to the High Commission.
[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 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. In the result, this application
must be dismissed.
[13]
Neither party proposed a certified question and no issue of
general importance arises on this record.
JUDGMENT
THIS COURT ADJUDGES THAT
this application for judicial review is dismissed.
“ R. L. Barnes ”
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