Docket: T-1701-16
Citation:
2017 FC 547
Ottawa, Ontario, June 2, 2017
PRESENT: The
Honourable Mr. Justice Mosley
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BETWEEN:
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OMAR FAKEH
AND
TASNIM FAKEH
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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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JUDGMENT AND REASONS
I.
INTRODUCTION
[1]
The applicants are stateless Palestinians. They
submitted an application for Canadian Citizenship on December 9, 2011. Between
July 2013 and August 9, 2016, they received several requests for clarification
with respect to their application from Citizenship and Immigration Canada
(CIC). Acting on their own behalf, the applicants responded to those additional
information requests.
[2]
On June 2, 2016, the applicants received a
letter from CIC requesting further additional information or evidence. On
June 30, 2016, the applicants responded to the CIC letter of June 2, 2016 and
indicated that they will continue to try to obtain all requested information,
and that some documents may be difficult, if not impossible, to obtain.
[3]
On July 29, 2016, CIC sent a letter labelled “Final Notice” to Mr. Fakeh requesting supplementary
information and informing him that the previous request for information
remained outstanding. The applicants claim that they never received this
letter.
[4]
On September 15, 2016, the applicants received a
Notice of Abandonment, dated September 12, 2016, wherein the Citizenship
Official decided to treat their citizenship application as abandoned. This is
an application for judicial review of that decision under section 22.1 of the Citizenship
Act, RSC, 1985, c C-25 [Citizenship Act]. The applicants are seeking
to have their citizenship application reopened and processed in an expeditious
manner.
[5]
For the reasons below, this application is
dismissed.
II.
ISSUE
[6]
The sole issue to be determined on this
application is whether the Citizenship Official breached procedural fairness in
treating the applicants’ citizenship application as abandoned.
III.
ANALYSIS
[7]
There is no dispute between the parties that the
issue of whether the applicants received the July 29, 2016 letter and whether
they had a proper opportunity to respond to the decision maker’s concerns is an
issue of procedural fairness attracting the standard of correctness: Halder
v Canada (Minister of Citizenship and Immigration), 2012 FC 1346. [2012]
FCJ No 1687 at para 21; Tareen v Canada (Minister of Citizenship and
Immigration), 2013 FC 35, [2013] FCJ No 43 at para 17.
[8]
The applicants submit that, with the exception
of the letter dated July 29, 2016, they have demonstrated a pattern of responding
to every correspondence received from CIC since they complied with all requests
received between December 9, 2011 and August 9, 2016. The applicants argue that
this demonstrates that they had no intention to abandon their citizenship
application which had been in process for five (5) years.
[9]
The applicants rely on Lim v Canada (Minister
of Citizenship and Immigration), 2016 FC 217, [2016] FCJ No 157 [Lim]
to support their argument that their file should be reopened. They submit that
in Lim, the judicial review was granted because the applicants had not
received the supposedly sent correspondence, much like the case at bar.
[10]
The jurisprudence is clear that where it is
shown, on a balance of probabilities, that a correspondence has been sent, the
risk of non-delivery lies with the applicant: Zare v Canada (Minister of
Citizenship and Immigration), 2010 FC 1024, [2010] FCJ No 1283 at para 36; Kaur
v Canada (Minister of Citizenship and Immigration), 2009 FC 935, [2009] FCJ
No 1530 at para 12; Alavi v Canada (Minister of Citizenship and
Immigration), 2010 FC 969, [2010] FCJ No 1197 at para 5; Cruz v Canada
(Minister of Citizenship and Immigration), 2016 FC 1114, [2016] FCJ No 1112
at paras 15-16.
[11]
In the circumstances of this case, I am
satisfied that the respondent has shown on a balance of probabilities that the
July 29, 2016 letter was sent to Mr. Omar Fakeh, by regular mail, for the
following reasons:
(1)
a copy of the letter dated July 29, 2016 is
contained in the CIC’s file;
(2)
the address found on the letter was provided by
the applicants and is the correct address;
(3)
earlier and later correspondence sent to the
applicants at the same address was received; and,
(4)
there are at least two explicit references in
the GCMS notes indicating that the Final Notice was sent.
[12]
I am also satisfied that the facts of this case
are distinguishable from those in Lim. In Lim, there was no
evidence that the letter had in fact been sent, and there was no notation in
the GCMS system, as was the usual practice, that the letter was sent. For reasons
noted above, it is my view that there was no breach of the duty of procedural
fairness in this case.
[13]
At the hearing, counsel for the respondent
brought a motion on consent for a confidentiality order pursuant to Rule 151 of
the Federal Court Rules, SOR/98-106 in order to have page 23 of the
Respondent’s Record filed in this proceeding removed from the public record.
[14]
The respondent’s motion related to an earlier
confidentiality Order from this Court dated May 4, 2017. Despite that Order,
which was also issued on consent, information which was meant to be protected
was inadvertently disclosed in the Respondent’s Record. I am satisfied that the
information at issue should be protected for the reasons set out in the
respondent’s earlier motion record.
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