Dockets: IMM-5760-13
IMM-5761-13
Citation:
2015 FC 1116
Toronto, Ontario, September 25, 2015
PRESENT: The
Honourable Mr. Justice Diner
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Docket: IMM-5760-13
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BETWEEN:
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DELERA BEGUM
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SHAMMY AKTER
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Applicants
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and
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THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Respondent
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Docket: IMM-5761-13
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AND BETWEEN:
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DELERA BEGUM
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SHAMMY AKTER
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Applicants
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and
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THE MINISTER OF
PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
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Respondent
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JUDGMENT AND REASONS
I.
INTRODUCTION
[1]
This case concerns Bangladeshi citizens who applied
through the Singapore visa office [Singapore] for permanent residence [PR].
Unbeknownst to them, Singapore cancelled the immigrant visas shortly after
issuing them, due to the receipt of a “poison pen”
letter [Letter]. The Applicants travelled to Canada without knowing about the
cancellation. They were questioned upon arrival, deemed inadmissible, and
issued exclusion orders due to having attempted entry without a valid visa. The
two judicial reviews attack the decisions (i) by Singapore to cancel the
immigrant visas and (ii) by a Minister’s Delegate to issue exclusion orders.
These two decisions, and their outcomes, in my view, violated the Applicants’
rights to procedural fairness. The applications will accordingly be sent back
for reconsideration.
[2]
The Begum scenario arose from an unusual set of
circumstances and an unintentional set of consequences, as will emerge through
the facts below. As these facts are unique unto themselves, the outcome is
therefore highly point-specific.
II.
PRELIMINARY ISSUES
[3]
The style of cause in IMM-5761-13, which
pertains to the Exclusion Order, should reflect the Minister of Public Safety
and Emergency Preparedness, rather than the Minister of Citizenship and
Immigration. With the consent of the parties, I will allow the style of cause
to be so amended, pursuant to Rule 76 of the Federal Courts Rules
(SOR/98-106).
III.
OVERVIEW: THE KEY FACTS
[4]
In February 2008, the Applicants were
co-sponsored by the daughter and son-in-law of Delera Begum, the primary
applicant [PA]. The second applicant is the PA’s daughter (who is also the
sponsor’s sister).
[5]
Two deaths occurred during the five years of the
sponsorship’s processing. First, the PA’s husband, who was an applicant, passed
away in 2009. Second, the son-in-law (co-sponsor) died in 2012, leaving Shahina
Akter as the sole sponsor [Sponsor]. The Applicants diligently responded to all
file requests from Singapore, including delivery of new financial, police, and
medical assessments after the unfortunate changes to the family’s composition.
[6]
Processing, it appeared, was complete in the
summer of 2013. Single entry immigrant visas were affixed to the passports in
June 2013, and were picked up by the Applicants in late July along with their
Confirmation of Permanent Resident certificates. Unbeknownst to the Applicants,
however, Citizenship and Immigration Canada [CIC] received the anonymous Letter
dated July 1, 2013. Specifically, the Letter was delivered to Case Processing
Centre Mississauga [CPC-M] by mail on July 5, 2013. The Letter was “imaged” into the CIC computer system by CPC-M on
August 1, 2013.
[7]
The Letter contained two allegations that remain
under investigation: first, that the PA had an undisclosed criminal record, and
second, that the Sponsor’s sister (and co-applicant) had an undisclosed
marriage. The Applicants have strongly denied both allegations, and continue to
offer to provide any and all available documentation to counter them.
[8]
Singapore, by a decision dated August 7, 2013,
cancelled the immigrant visas, stating that the Applicants’ files would be
reassessed. A registered letter setting this out was sent to the Applicants the
same day, and copied by electronic mail [email] to the Sponsor. The email was
received in the Sponsor’s inbox on August 7. Singapore’s registered letter arrived
at the Applicants’ home in Bangladesh after they had arrived in Canada, which
was on August 15, 2013. Upon arrival, Canada Border Services Agency [CBSA]
advised that their visas had been cancelled.
[9]
An inadmissibility hearing with a CBSA
Minister’s Delegate took place on August 19. The Delegate decided to issue
section 44(1) reports under the Immigration and Refugee Protection Act
[IRPA, the Act]. The accompanying exclusion order was based on failure to hold
the valid visas when seeking to enter Canada, with the intention of
establishing permanent residence [PR], pursuant to IRPA sections 41 and
20(1)(a), and section 6 of the Immigration and Refugee Protection
Regulations [IRPR, the Regulations]. In tandem, these provisions state that
foreign nationals who seek to enter Canada must first establish that they hold
the visa or other document required under the Regulations. IRPA’s section 41(a)
stipulates that a foreign national is inadmissible for failing to comply with
IRPA through an act or omission which contravenes a provision of the Act.
IV.
ISSUES TO BE DECIDED
A.
Was Singapore’s decision to cancel the visas
interlocutory (interim) or final?
[10]
The Applicants assert that the issuance of the
single entry immigrant visas by Singapore was a final decision, albeit within a
PR determination that was still ongoing at the time (although the investigation
is currently stalled). The Applicants argue that they acted in good faith at
all times and should not suffer negative consequences arising out of the
unilateral actions and decisions of the visa office, which they did not know
about until being confronted by CBSA upon arrival at the Airport. The
Respondent, on the other hand, contends that the visa cancellations were
interlocutory steps taken pending further investigation and finalization of the
file. There was no choice, by operation of the law, other than visa
cancellation.
B.
Were the Applicants’ rights to procedural
fairness breached by either decision?
[11]
The Applicants’ rights to procedural fairness
were breached, they assert, both when Singapore (i) failed to provide them with
an opportunity to respond to the Letter’s allegations at the outset, and (ii)
failed to ensure they received notice of the visa cancellation. The Respondent
counters the revocation letter was sent to and received at the Sponsor’s email,
an authorized address. The Sponsor had previously communicated with Singapore
by email. The Respondent argues that the jurisprudence has clearly established
that the Applicants bear the burden of reversing the onus that correspondence
communicated to an authorized address is presumed to have been received, and
since that has not been done, there were no breaches of fairness.
[12]
The parties agree that procedural fairness
issues are reviewed on a standard of correctness (Mission Institution v
Khela, 2014 SCC 24, at para 79). The parties further agree that if
the Singapore decision is found to be tainted by procedural unfairness, the
Minister’s Delegate exclusion order is tainted by extension, because it was
based solely on arriving in Canada with cancelled visas.
V.
ANALYSIS
[13]
Let me begin by making two preliminary comments.
First, this case turns on a unique set of facts, and due to its unusual
circumstances, should be viewed within that narrow prism. Second, there appears
to be no bad faith by either party. Rather, a series of seemingly honest
miscommunications led to its unfortunate and unintended outcome. Having said
that, I agree that unfairness resulted to the Applicants, and therefore am
sending this file back for reconsideration, which will entail the resumption of
Singapore processing and whatever steps remain in the Letter investigation.
A.
Issue 1: Was Singapore’s decision to cancel the
visas interlocutory (interim) or final?
[14]
With respect to the first issue - the nature of
the Singapore decision being challenged - I find it to be a final decision. I
acknowledge that the process has not ended, and that a final decision is yet to
be made on the PR visas. However, as for the visas themselves, the parties
agree that once cancelled on August 7, 2013, they served no useful purpose: as
the Respondent put it in oral submissions, life could not at that point be
breathed back into the visas. The characterization of the cancelled visas as
being spent leads directly to the conclusion that the decision was a final one:
both parties also acknowledge that new visas may be reissued at some future
time, namely after the conclusion of the pending Singapore investigation. This
properly gives rise to a judicial review, and I do not agree with the Respondent
that this judicial review is premature, precisely because of the visa
cancellations’ finality (along with the inadmissibility findings and exclusion
orders that ensued as a result).
[15]
There is scant jurisprudence surrounding
immigrant visa cancellations. The closest case brought to my attention was Chan
v Canada (Citizenship and Immigration), [1996] 3 FC 349 [Chan].
Although facts and conclusions of Chan were different, the Court
nonetheless accepted jurisdiction over the judicial review, and confirmed that
the visa officer had jurisdiction to reconsider a previous decision to issue,
and thus cancel, the immigrant visa.
B.
Issue 2: Were the Applicants’ rights to
procedural fairness breached by either decision?
[16]
The jurisprudence is also clear that once the
visa office proves that a communication was sent to an applicant, and there is
no indication that the communication failed, the risk of non-delivery rests
with the applicant -- not with the respondent (Halder v Canada (Citizenship
and Immigration), 2012 FC 1346 at paras 41-42, 49). The applicant bears the
onus to rebut the presumption of delivery: see Mannil v Canada (Citizenship
and Immigration), 2014 FC 70 at para 30. The Respondent relied on my recent
decision in Khan v Canada (Citizenship and Immigration), 2015 FC 503,
along with the other cases mentioned, for the proposition that the Applicants
received the email via the Sponsor, who failed in her duty to check her email.
I, however, am satisfied that the facts in this case meet the test set out in the
jurisprudence for the following reasons.
[17]
The Applicants have demonstrated they did not
receive the Singapore cancellation communication, through uncontroverted
evidence. First, the registered Singapore letter arrived at the Applicants’
home in Bangladesh only after they arrived in Canada. Second, the Sponsor
explains, in her unchallenged affidavit, why she (and thus the Applicants)
never received the email notification before they left Bangladesh:
9. My e-mail address is: akter.shahina5@gmail.com.
I am not a frequent user of e-mail and I am not very knowledgeable about the
internet. I learned how to use e-mail around 2011, as I was learning about
using a computer at that time. Before November 2011, I only checked my e-mail
once every two weeks, or perhaps even once a month.
10. Around November 2011, I provided my
e-mail address to the Canadian immigration authorities. After that, I
occasionally received emails from Canadian immigration authorities regarding my
application to sponsor my sister and mother. I generally checked my e-mail
approximately twice a week while my sister and mother’s applications was in
process. I was anxious for my mother and sister to be approved and to receive
visas to Canada. When they finished their medical examinations, I hoped a
decision would be made soon, so I checked my e-mail a little more frequently.
11. After my sister and mother received
their visas on July 30, 2013, I believe that I checked my e-mail on or about
August 3, 2013, just in case Immigration had sent anything after they had
picked up the visas. I did not check my e-mail again until August 16, 2013. I
did not check it during that time because the visas had already been issued. I
was no longer concerned about my mother and sister’s application. I did not
believe there was any reason immigration authorities would contact us again. I
was also busy with getting ready for my sister and mother to arrive, including
shopping, money and their travel. (Application Record [AR], pages 16-17,
Affidavit of Shahina Akter, paras 9-11)]
[18]
The Respondent counters that the Applicants
authorized the Sponsor to be their unpaid representative and provided her email
address. Singapore corresponded with her on at least one occasion by email, as
reflected in the computer notes: see Certified Tribunal Record [CTR], at pages
48-49, 58-59. However, I remain unconvinced. The uncontroverted evidence
(because the Sponsor was never challenged or cross-examined on her affidavit)
is quite clear as to why her email was received but not opened until after
the Applicants arrived in Canada. And it is for this reason that I find a
breach in effective notification of the visa cancellation.
[19]
I would add that what is also clear from the
record is that the Sponsor provided her phone number, and the Respondent corresponded
with her by telephone to discuss the death of the co- Sponsor (CTR, page 50).
The Respondent also communicated directly with the primary Applicant via text
message to her mobile phone in Bangladesh, advising that passports were ready
for pick up. The Applicants acted on this text quickly, travelling to the visa
office two days later (AR, page 26, Affidavit of Shammy Akter, at para 7).
There are no notations to corroborate the mode of said communication in the
computer notes, but again, there is no reason to question the Applicants’
unchallenged, sworn testimony.
[20]
Finally, I would add the anonymous Letter was
received by the Respondent a month before the revocation decision. The Letter
contained two serious and unsubstantiated allegations. I agree with the
Applicant, that over the intervening month (between July 5 and August 7, 2013),
the Respondent could have made a minimal effort to provide the Applicants with
an opportunity to respond to the allegations prior to the visa cancellation
decision.
[21]
The Respondent argues that CPC-M only uploaded
the letter image on August 1. My first observation is that is not the fault of
the Applicants. My second observation is that other, more effective means of
communication were available to the Respondent, based on the contact history on
the file: Singapore had, after all, communicated with the Applicants by text
message in the days before viewing the Letter (when Singapore notified the
Applicants that their passports were ready).
[22]
Furthermore, the Respondent had, earlier in the
process, phoned the Sponsor to discuss the death of her husband, the
co-sponsor. I find that for such a critical, and highly unusual, action - to
revoke duly issued immigrant visas, which in this case led to inadmissibility
and exclusion orders - a more immediately verifiable mode of communication is
warranted. Email may be a perfectly acceptable, and indeed preferred, mode of
communication by a visa office to applicants for ordinary, run-of-the-mill
communications. Cancelling immigrant visas can hardly be described as an
ordinary communication. In this case, it undid the culmination of a 5-year
process, and one that the Applicants had long awaited in order to be reunited
with their close family in Canada. They would have known they had a limited
time in which to present their visas to Canadian border authorities, before the
expiry of their visas and their underlying medical results.
[23]
In short, telephone or text messaging, both more
immediately verifiable modes of communication, should be used for critical or
unusual circumstances, where feasible. Here, they were feasible, having been
used previously in the course of the applications.
[24]
One is left to hope that given the Applicants’
unclear status after nearly two years in Canada as a result of these
circumstances, the remaining steps of PR processing, including any remaining
investigation, can occur without further delay. One also hopes that the parties
can find some way to resolve the status issues non-prejudicially until a final
decision is made in the sponsorship application that was filed over seven years
ago.
VI.
CONCLUSION
[25]
The result of these judicial reviews flow from a
unique and unfortunate set of facts that had unintended and unsettling
consequences. The Applicants can neither be faulted for the fact that they
departed Bangladesh for a new life in Canada before receiving registered
letters, nor for the failure of their Sponsor to check her email after the
issuance of their immigrant visas. The cancellation of those immigrant visas is
both an unusual and unexpected occurrence. The Applicants should have been
given an opportunity to respond to the anonymous and, until now, unsupported
allegations contained in the poison pen letter. Failing such opportunity to
respond, the Respondent should, at minimum, have used a more immediate and
verifiable method of communicating the cancellation, such as a telephone call,
to be given the opportunity to avoid the severe consequences that flowed at the
airport.
VII.
CERTIFIED QUESTIONS
[26]
As requested by the Respondent and agreed to by
the Applicants, these reasons were sent in draft format to allow each party to
provide submissions on any proposed certified questions.
[27]
The Respondent proposed two questions:
1.
For the purposes of determining who bears the
risk of non-delivery of a communication, is an email recipient deemed not to
have received an email by virtue of the fact that he/she failed to check for
new messages?
2.
Is a visa post restricted to relying on
immediately verifiable modes of communication when communicating non-ordinary
or critical matters or when unusual or unexpected matters arise?
[28]
I agree with the Applicant’s that the
Respondent’s proposed questions do not meet the test for certification. As
explained above, this case turns on a highly particularized set of facts and
resulting circumstances. Having said that, the first question asked is not
determinative of the judicial review because the sponsor was not “deemed” to have failed to receive the email: she
provided sworn affidavit evidence which was not challenged.
[29]
The second question is also not determinative of
the judicial review in that this judgment addresses the duty of procedural
fairness, the content of which is highly variable depending on the particular
facts of any given case. As this case is highly fact specific, neither of the
proposed questions transcend the interests of the parties nor contemplate
issues of broad significance or general application (Zhang v Canada
(Citizenship and Immigration), 2013 FCA 168 at para 9; Canada
(Citizenship and Immigration) v Liyanagamage, [1994] FCJ. No 1637, (1994)
176 NR 4 at para 4).
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