Date: 20080201
Docket: IMM-3152-07
Citation: 2008
FC 124
Ottawa, Ontario, February 1, 2008
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
SHAOYONG
YANG
Applicant
and
THE MINISTER
OF CITIZENSHIP AND IMMIGRATION
Respondent(s)
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The Applicant is a citizen of China who lives and works in the United
States as a web developer. In 2005, the Applicant retained an immigration
consultant and submitted his application for permanent resident status in Canada
under the Federal Skilled Worker Class.
[2]
In a letter dated November 14, 2006 (the November 14 letter) to the
Applicant’s consultant, officials with Citizenship and Immigration Canada (CIC)
requested that the Applicant and his wife obtain FBI clearance certificates,
proof of settlement funds, and evidence of completed medical examinations. Over
the next months, although the Applicant was apparently actively fulfilling the
application requirements, nothing further was sent to or received by CIC. On
March 27, 2007, a
further letter (the March 27
letter) was allegedly sent by an officer with CIC (the Officer) to the
Applicant. The March 27 letter requested that all information be submitted
within 60 days of the date of that letter and advised the Applicant that “[i]f
you fail to provide the requested information, your application may be assessed
on the basis of the information that we have and I may refuse your
application”. Upon the failure of the Applicant to deliver the requested
materials within the designated time frame, the Applicant was advised by the Officer, in a
letter dated June 1, 2007, that his application
for permanent residence had been refused. The basis of the refusal was that the
information requested in the November 14 letter had not been provided.
[3]
The Applicant claims that his consultant never received the March 27
letter. Accordingly, the Applicant submits that there has been a breach of the
Officer’s duty of fairness and that the Officer's decision of June 1, 2007 should
be overturned.
[4]
The only issue in this application is whether there has been a breach of
the Applicant’s right to procedural fairness.
[5]
There is no question that CIC must provide notice to a person affected
by a decision before that decision is taken. In this case, prior to determining
that the application was denied for failure to provide documents in a
particular time frame, the Officer was required to provide notice to the
Applicant that failure to provide the documents would result in a dismissal.
The question before me, on the facts of this case, is how far CIC or one of its
officer’s must go in providing that notice.
[6]
In my view, the comments of Justice O’Reilly in the case of Ilahi v. Canada
(Minister of Citizenship and Immigration), 2006 FC 1399 correctly describe
the duty on the Respondent with respect to notice. In Ilahi, an
applicant for permanent residence claimed that, because he never received
notice of a scheduled interview, his application was unfairly dismissed.
Justice O’Reilly held:
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). (Ilahi,
above at para. 7). [Emphasis added.]
[7]
The application for judicial review in Ilahi, above, was
ultimately granted as the respondent could not produce a copy of the letter
sent to the applicant or any other direct evidence indicating that the notice
had been sent to the correct address. A similar approach to the issue of the
duty on an officer was also taken in two other permanent residence application
cases; see, Sawnani v. Canada (Minister of Citizenship and Immigration),
2007 FC 206; Shah v. Canada (Minister of Citizenship and
Immigration), 2007 FC 207.
[8]
Having reviewed the record before me, I am satisfied that, on a balance
of probabilities, the March 27 letter was sent, by regular surface mail, to the
address indicated by the Applicant. A copy of the letter is contained in the
file; the address is correct; and, the Computer Assisted Immigration Processing
System (CAIPS) notes make explicit reference to the sending of the March 27
letter. While the Applicant has produced evidence that his consultant did not
receive the March 27 letter, he does not present evidence that would lead me to
doubt that the letter was sent to the correct address by reliable means.
[9]
On these facts and consistent with the Court’s reasons in Ilahi, Shaw
and Sawnani, I am satisfied that there was compliance with the duty
to give notice.
[10]
The Applicant relies on the case of Anwar v. Canada
(Minister of Citizenship and Immigration), 2004 FC 1202 in support of his
position. In Anwar, the decision under review was a decision of a
panel of the Immigration and Refugee Board, Refugee Protection Division
declaring an application for refugee protection to have been abandoned. The
applicant claimed that neither he nor his counsel received notice of the
abandonment hearing. Justice Mosley weighed the evidence on the tribunal
record, which indicated that the applicant had been served by "prepaid
regular service", against an affidavit by the applicant, who attested he
had not been served (Anwar, above at paras.18-19). Justice Mosley was
unable to conclude, on a balance of probabilities, that the applicant had
received adequate notice and set aside the decision of the Board. In doing so,
Justice Mosley noted:
There is 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. It is, perhaps, instructive that the applicant and his counsel
reacted promptly when they received the Board's reasons for declaring the claim
abandoned (Anwar, above at para. 21)
[11]
The Applicant submits that his situation is exactly the same as that
before the Court in Anwar. The Applicant is unable to discern a principled
basis as to why the Court required proof of receipt of notice in Anwar,
while the Court in Ilahi, Sawnani and Shah was satisfied with
proof that the notice had been sent to the correct address.
[12]
The Respondent distinguishes Anwar on the basis that the decision
involved an abandonment hearing in the context of a refugee claim, whereas Ilahi,
Sawnani and Shah involved an application for permanent residence.
[13]
With respect to the Anwar decision, I make two observations. First, the
Court in Anwar was considering a refugee abandonment proceeding. The concept
of procedural fairness is “flexible and variable” (Baker v. Canada (Minister
of Citizenship and Immigration), [1999] 2 S.C.R. 817
at para. 22) and may well be different for an abandonment hearing than for an
application for permanent residence.
[14]
Secondly, there are good reasons
for preferring the views of Justice O’Reilly 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.
[15]
In addition, the Applicant may
immediately bring another application. While I am not attempting to discount the
importance to the Applicant of losing another two years in his quest to come to
Canada, beyond a delay and having to pay another processing fee, he has not
presented the Court with evidence that he is prejudiced by this decision.
[16]
Having concluded that the Officer
met her duty with respect to the sending of a notice, there is nothing further
to decide. Nevertheless, I wish to make it clear that I have considered the
evidence of the Applicant that he did not receive the March 27 letter.
Specifically, I have considered the statement of the Applicant’s consultant
that the March 27 letter was not received. Even if the evidence of the
consultant is relevant, I have some difficulty with it. In particular, I can reasonably assume that the consultant would
have many clients and would receive many pieces of correspondence related to
his active immigration files every day. However, neither the Applicant nor the
consultant provided information on the systems that the consultant has in place
to ensure that mail does not go astray.
[17]
There may well be situations where
the evidence throws serious doubt on the Respondent’s assertions that a notice
was sent. That was not the case before me.
[18]
In conclusion, this application
for judicial review will be dismissed. The parties were informed orally of this
decision and asked whether either of them proposed a certified question.
Neither party proposed a question for certification.
JUDGMENT
THIS COURT ORDERS
AND ADJUDGES that
1.
The
Application for judicial review is dismissed; and
2.
No
question of general importance is certified.
“Judith
A. Snider”
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