DISCREPANCIES IN EMPLOYMENT CAUSE VISA REFUSAL, FINDING OF MISREPRESENTATION

The case below highlights that discrepancies in the information provided by the applicant can trigger a finding of misrepresentation and a refusal of a visa.

Paashazadeh v. Canada (Minister of Citizenship and Immigration)

Between
Neinoush Paashazadeh, Applicant, and
The Minister of Citizenship and Immigration, Respondent

[2015] F.C.J. No. 327

2015 FC 327

Docket: IMM-6532-13

 Federal Court
Toronto, Ontario

Zinn J.

Heard: January 28, 2015.
Judgment: March 16, 2015.

(29 paras.)

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JUDGMENT AND REASONS

1     ZINN J.:-- The applicant asks the court to quash a decision of the Program Manager at the Canadian Embassy in Warsaw, Poland, which held that she was inadmissible for misrepresentation pursuant to paragraph 40(1)(a) of the Immigration and Refugee Protection Act, SC 2001, c 27. For the reasons that follow, this application must be dismissed.

Background

2     The applicant is a citizen of Iran residing in Tehran. From May 2005 to January 2009, she was employed as an advertising consultant at Nikyari Air Service [Nikyari] and she has been employed by Chi Chast Construction Company [Chi Cast] as a marketing coordinator since September 2009. On September 14, 2010, she was offered employment at Petro-Ex Canada Inc. as a marketing and advertising specialist.

3     Relevant to this application, on September 28, 2011, the applicant began working part-time with Apadana Caravan Tourism Company [Adapana] as a means, she says, to earn additional income to support her family.

4     When the applicant applied on June 18, 2012, for permanent residence under the Federal Skilled Worker [FSW] category she listed the Nikyari and Chi Chast positions as her employment experience. Her evidence on this application is that, due to the nature of the Adapana employment, she did not believe that this "side" job was significant enough to disclose.

5     When on June 30, 2012, the applicant became a full-time employee of Adapana, she says that she did not believe that it was necessary to report this employment since she had already fulfilled the employment experience requirements of the FSW class.

6     To verify her employment, the applicant was asked by an officer to provide her Social Security Organization certificate [SSO]. The applicant provided additional documentation from her employer but not the requested SSO.

7     On June 18, 2013, a procedural fairness letter was sent to advise the applicant that she would be receiving zero points for work experience because the officer was not satisfied that she had been employed as stated in the application due to her failure to provide the SSO.

8     On July 5, 2013, the applicant wrote to the Embassy and provided the requested SSO, which showed that she had been employed at Adapana since September 2011. It is her evidence that the officer's request for proof of insurance prompted her to disclose the Adapana employment because before this point, she did not believe that this information was either necessary or material to her application.

9     On August 7, 2013, the applicant received an email from an officer at the Embassy alleging that she had misled the officer and misrepresented her employment by failing to disclose her employment with Adapana at the time of her application. The officer advised that the matter would be forwarded to his supervisor, the Program Manager, for final determination. The Applicant was given 30 days to provide additional information.

10     On September 5, 2013, the applicant sent another letter to the Embassy explaining that she had already fulfilled the employment requirements of the FSW class at the time of the application, so she did not think it was necessary to disclose her part-time employment. She expressed that she did not intentionally withhold this information and had honestly believed that it was immaterial to her application.

11     The Program Manager refused the application on the basis that the applicant had misrepresented her employment under subsection 40(1) of the Act and therefore did not qualify for permanent residence in Canada. The Program Manager did not believe the explanation that the applicant did not know that she had to submit her employment at Adapana since it is clear on the form that all activities must be listed. The Program Manager found that the "misrepresentation or withholding of this/these materials fact(s) induced or could have induced errors in the administration of the Act because a complete and accurate employment history is material the assessment of your eligibility and your admissibility."

Issues

12     The applicant submits that the following issues arise:

·       1. 

Is mens rea required under subsection 40(1) of the Act; and 

·       2. 

Did the applicant's omission constitute a "material fact" for the purpose of subsection 40(1) of the Act? 

Mens Rea

13     The applicant submits that the first issue regarding mens rea under subsection 40(1) of the Act should be reviewed on the standard of correctness. I agree with the respondent that this is a question of law related to the interpretation of the officer's home statute and is therefore reviewable on the reasonableness standard: See Oloumi v Canada (Minister of Citizenship and Immigration, 2012 FC 428 at para 13 [Oloumi], citing Alberta (Information and Privacy Commissioner) v Alberta Teachers' Association, 2011 SCC 61 at paras 46, 48).

14     The applicant submits that the fact that the word "knowingly" is absent in subsection 40(1) suggests that having knowledge of misrepresentation should not play a role in finding misrepresentation. On the other hand, she points out that section 127 of the Act states that no person shall knowingly directly or indirectly misrepresent or withhold material facts related to a relevant matter that induces or could induce an error. Contravening section 127 of the Act is an offence. The applicant submits that removing knowledge as a prerequisite of an inadmissibility finding under subsection 40(1) means that the liberty interest of an applicant could be impacted even if they had not intended to commit a misrepresentation. The applicant cites Osianwo v Canada (Minister of Citizenship and Immigration), 2010 FC 378 [Osianwo] wherein Justice Hughes allowed the application based on the lack of mens rea in making a misrepresentation.

15     The applicant here submits that she did not knowingly or intentionally withhold a material fact that would induce an error because she honestly believed it was not necessary to report the information. Therefore, she argues that this is the type of case that falls within the exception to the general rule.

16     I agree with the respondent that the applicant was clearly aware that she was employed at Adapana at the time of the application, so her statement that she did not know she was making a misrepresentation within the meaning of section 40 of the Act lacks merit.

17     Moreover, I agree that the applicant failed to discharge the onus of ensuring the completeness and accuracy of her application. The instructions on the form require an applicant to provide details of their personal history and specifically indicate that detailed information is to be provided for the previous 10-year period. Moreover, the instructions indicate that letters of reference from all employers for the past ten years must be provided, so the applicant was informed that all of her employment experience for that period was relevant to her application. In addition, the form requires a "solemn declaration" from an applicant "that the information I have given in the foregoing application is truthful, complete and correct."

18     Even if the applicant's omission could be characterized as an innocent mistake, it would still fall within subsection 40(1) of the Act because it has been held to encompass innocent failures to provide material information: Baro v Canada (Minister of Citizenship and Immigration), 2007 FC 1299 at para 15; Canada (Minister of Public Safety and Emergency Preparedness) v Abdallah, 2013 FC 1053 at para 17; Gobordhun v Canada (Minister of Citizenship and Immigration), 2013 FC 971 at para 28; and Sayedi v Canada (Minister of Citizenship and Immigration), 2012 FC 420 at paras 40, 42, 44, 52.

19     Moreover, I accept the submission of the respondent that because it has been held that the provision also covers misrepresentation made by another party - intention of the applicant is not required for this provision to apply: See Oloumi; Singh v Canada (Minister of Citizenship and Immigration), 2010 FC 378 at paras 16, 18; Mahmood v Canada (Minister of Citizenship and Immigration), 2011 FC 433 at para 22; Jiang v Canada (Minister of Citizenship and Immigration), 2011 FC 942 at para 35; and Wang v Canada (Minister of Citizenship and Immigration), 2005 FC 1059 at paras 55-58.

20     The court in Oloumi (and in eight similar cases decided on the same day by Justice Tremblay-Lamer) considered the proposition from Osisanwo relied on by the applicant and held that the general rule is that a misrepresentation can occur without the applicant's knowledge. The court noted that there is a narrow exception for "truly exceptional circumstances where the applicant honestly and reasonably believed they were not misrepresenting a material fact."

21     This is not one of those truly exceptional cases referred to in Oloumi as the applicant was aware the information was being withheld and she chose not to include it because she thought it was not significant. Given the application instructions and correspondence with the Embassy, this was not an honest and reasonable belief.

Material Fact

22     The applicant submits that her employment at Adapana was not a "material fact" because the outcome would have been the same, regardless of whether she had worked at Adapana or not, since her listed employment experience allotted her the maximum points that could be awarded under the experience category. Because her work at Adapana has no effect on her eligibility to the FSW class, it was not material.

23     Further, the applicant says that she disclosed this information as soon as it came to her attention that it was or could have been relevant to her application. This submission I reject completely. The applicant failed to provide the requested documentation until she was told that she was being awarded zero points for her work experience.

24     The applicant cites Taei v Canada (Minister of Employment and Immigration), [1993] F.C.J. No 203 for the principle that "[the] rule of law does not require statutes be read and interpreted in a robotic mindless manner" and that common sense may still be applied. She submits that the purpose of the Act is to permit immigration, not prevent it and she argues that it makes no sense to prevent her from immigrating when she has arranged employment and has already obtained the necessary scores to qualify.

25     It has been held that the purpose of paragraph 40(1)(a) is to ensure that applicants provide complete, honest and truthful information and to deter misrepresentation: Bodine v Canada (Minister of Citizenship and Immigration), 2008 FC 848 at para 44; and Kobrosli v Canada (Minister of Citizenship and Immigration), 2012 FC 757 at paras 46-48. It has further been held that full disclosure is fundamental to the proper and fair administration of the immigration scheme: Khan v Canada (Minister of Citizenship and Immigration), 2008 FC 512 at para 25; and Oloumi at para 23.

26     A misrepresentation need not be decisive or determinative to be material; it must only be important enough to affect the process: See Sayedi v Canada (Minister of Citizenship and Immigration), 2012 FC 420 at paras 26-27. I agree with the respondent that a failure (innocent or otherwise) to supply a "truthful, complete and correct" application is material because it prevents the reviewing officer from assessing all of the applicant's personal facts and to verify all of the information concerning an applicant to determine whether he or she is properly admissible to Canada.

27     The applicant proposed two questions for certification:

·       Question 1: Is mens rea required for a finding of misrepresentation per s. 40(1) where such a finding results in application of s. 127 of the IRPA, with possible enforcement of imprisonment upon the applicant who misrepresented material facts? 

·       Question 2: Is a self-serving purpose a required element in misrepresentation of material facts that may "induce or could induce an error in the administration of [IRPA]", pursuant to s. 40(1) of the IRPA? Alternatively, if there is no benefit in misrepresenting a material fact, should the Applicant who, whether indirectly or directly, misrepresented said fact be found inadmissible under s. 40(1)? 

28     I agree with the respondent that Question 1 is not certifiable because it cannot be said to be determinative of any appeal. Section 127 does include a requirement that the person does the act "knowingly." Section 127 is not at play in the impugned decision as there was no finding made by the Program Manager that this applicant made the misrepresentation knowingly; rather she states that the applicant "misrepresented or withheld" information.

29     The second question is also not certifiable because the law is well established as to the proper interpretation of subsection 40(1) of the Act. It is irrelevant whether the misrepresentation is self-serving or not as that is not a stated requirement in the legislative provision.

JUDGMENT

THIS COURT'S JUDGMENT is that the application is dismissed and no question is certified.

ZINN J.

FEDERAL COURT QUASHES IAD DECISION DUE TO DENIAL OF INTERPRETER AT HEARING

It is astonishing that the IAD made such a fundamental error. The right to an interpreter is critical at a hearing.

Kotelenets v. Canada (Minister of Citizenship and Immigration)

Between
Lyudmyla Kotelenets, Applicant, and
The Minister of Citizenship and Immigration, Respondent

[2015] F.C.J. No. 290

2015 FC 209

Docket: IMM-4313-13

 Federal Court
Toronto, Ontario

LeBlanc J.

Heard: October 9, 2014.
Judgment: February 18, 2015.

(37 paras.)

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JUDGMENT AND REASONS

·        LeBLANC J.:-- 

I. Introduction

1     The Applicant (or Ms Kotelenets) seeks judicial review of a decision of the Immigration Appeal Division (IAD) made on May 23, 2013 which dismissed her appeal of the refusal of a visa officer to grant a permanent residence visa to her mother and stepfather who live in Ukraine, and whose visa applications were sponsored by the Applicant as members of the family class.

2     The visa applications were refused as the Applicant's mother was found to be inadmissible to Canada pursuant to subsection 38(1) of the Immigration and Refugee Protection Act (the Act) as a person whose health is likely to cause an excessive demand on Canada's healthcare services.

3     The Applicant did not challenge this finding of the visa officer before the IAD but rather sought special relief under paragraph 67(1)(c) of the Act which empowers the IAD to grant an appeal where it is satisfied that, at the time the appeal is disposed of, sufficient humanitarian and compassionate considerations, taking into account the best interests of a child directly affected by the visa officer's decision, warrant special relief in light of all the circumstances of the case.

4     The Applicant claims that the IAD's decision must be set aside on the ground that the IAD breached the rules of procedural fairness by not allowing her to fully present her case. She also claims that the decision is unreasonable as the IAD, in its assessment of the humanitarian and compassionate considerations supporting her appeal, failed to consider her mother's current medical condition.

5     For the reasons that follow, the judicial review application is granted.

II. The Facts

6     Ms Kotelenets is a Canadian citizen who immigrated to Canada in 2001 along with her now ex-husband and two children, aged 27 and 25 at the time of the IAD decision. She first applied to sponsor her mother and stepfather, aged 77 and 78 respectively at the time of the IAD decision, in 2003. The first request was rejected due to the income threshold imposed on Ms Kotelenets in order to be a sponsor. This decision was appealed to the IAD on humanitarian and compassionate grounds and the appeal was allowed in 2009, resulting in the permanent residency visa applications of Ms Kotelenets' parents being further processed.

7     In the course of the processing of these applications, Ms Kotelenets' mother underwent medical examinations. These examinations revealed that Ms. Kotelenets' mother was suffering from severe aortic valve stenosis requiring valve replacement and specialized care and monitoring both before and after the surgery.

8     On April 14, 2011, a visa officer determined that Ms. Kotelenets' mother had a health condition which would reasonably be expected to cause excessive demand on healthcare services in Canada and concluded that she was inadmissible to Canada. As an accompanying family member, Ms. Kotelenets' stepfather, given the mother's condition, was also found inadmissible to Canada.

9     Ms Kotelenets appealed that decision to the IAD, seeking, as indicated above, special relief based on humanitarian and compassionate grounds. This appeal was to -- and did -- proceed de novo.

10     As permitted by section 37 of the Immigration Appeal Division Rules (SOR/2002-230), the Applicant formally notified the IAD that she intended to call four witnesses to testify at the hearing. These witnesses were her two sons, a friend from her church, as well as her mother. In the case of her mother, she indicated in her witness information notice to the IAD that she wanted her to testify by telephone and that an interpreter in the Russian or Ukrainian languages would be needed. Ms Kotelenets also filed, in support of her appeal, an up-dated medical report indicating that her mother's condition was largely asymptomatic and that she did not need to undergo surgery.

11     At the hearing of the appeal the Applicant was informed that there was no interpreter available for her mother and that, in any event, she should be able to tell her mother's story herself. As a result, the Applicant's mother did not testify. With respect to the Applicant's other three witnesses, they were told by the IAD to leave the hearing room and that they would be called later. However, none of them testified as the IAD later decided it did not need to hear from them on the basis that they would not add anything to the Applicant's testimony.

12     It is important to add that Ms Kotelenets was representing herself at the appeal hearing.

13     On May 23, 2013, the IAD rejected Ms Kotelenets' appeal on the ground that special relief under paragraph 67(1)(c) of the Act could not be granted solely on the basis of family separation, that the evidence of potential hardship resulting from the rejection of the permanent residency visa applications of Ms Kotelenets' parents was not very compelling and that, when weighed against the future demand on Canada's healthcare services, it had no option but to conclude that the Applicant had not established that special relief was warranted.

III. The Lateness of the Filing of the Applicant's Judicial Review Application

14     The Applicant filed her Application for Leave and Judicial Review on June 25, 2013, which is 25 days following receipt of the IAD's decision. As her parents live overseas, she though, incorrectly, that her deadline for the filing of the said Application with the Court was 30 days. Her deadline for doing so was in fact 15 days as her case arose in Canada, as provided for by paragraph 72(2)(b) of the Act. As a result, she sought an extension of time to file her Application for Leave and Judicial Review.

15     The Respondent claims that this request should be denied and the Applicant's judicial review application dismissed accordingly. I disagree.

16     The proper test to extend timelines has been articulated by the Federal Court of Appeal in Canada (Attorney General) v Hennelly, 244 NR 399; 167 FTR 158. This test is whether the party seeking the extension has demonstrated (i) a continuing intention to pursue his or her application; (ii) that the said application has some merit; (iii) that no prejudice to the other party arises from the delay being sought, and (iv) that a reasonable explanation for the delay exists (Hennelly, above at para 3). Regarding this fourth criteria, the Federal Court Appeal stated that any determination as to whether a reasonable explanation exists will turn on the facts of each particular case (Hennelly, at para 4).

17     First, there is no doubt that Ms Kotelenets has shown a continuing intention to pursue her Application for Leave and Judicial Review. She explained, in her application materials, that she took some time to find a lawyer to represent her and that on the date she met her current counsel, June 25, 2013, she immediately instructed her to challenge the IAD's decision. The Application for Leave and Judicial Review was filed the same day. Second, as leave was subsequently granted, it is clear that the said application has some merit. Third, there is no evidence of any prejudice to the Respondent arising from the delay being sought.

18     There is, in my view, a reasonable explanation for the delay. Ms Kotelenets, who, at that time was self-represented, made an honest mistake in believing that her delay to proceed with judicial review of the IAD's decision was 30 days as she thought, given that her parents live in Ukraine, that her case was a matter arising outside Canada as contemplated by paragraph 72(2)(b) of the Act. In these circumstances, I would give her the benefit of the doubt and accept the explanation given for the delay.

19     In any event, the case law makes it clear that the underlying consideration when weighing the factors set out in Hennelly, above, is that justice must be done between the parties, which could mean that in certain circumstances, an extension of time will still be granted even if one of the four factors is not satisfied (Canada (Minister of Human Resources Development) v Hogervost, 2007 FCA 41, at para 32; Strungmann v Canada (Citizenship and Immigration), 2011 FC 1229, at para 9).

20     I am satisfied that this is a case where justice must be done between the parties and the extension of time sought by the Applicant for the filing of her Application for Leave and Judicial Review ought to be granted.

IV. Issues and Standard of Review

21     This matter raises the following issues:

·        a. 

Did the IAD breach the duty of procedural fairness owed to the Applicant? 

·        b. 

Is the IAD's finding that special relief under paragraph 67(1)(c) of the Act is not warranted in all of the circumstances of this case unreasonable? 

22     Given my answer to the first question, there will be no need to consider the second issue.

23     As is well established, issues of procedural fairness are to be reviewed on a standard of correctness. This means that the Court owes no deference to the IAD in respect of such issues (Dunsmuir, above, at para 50, Sapru v Canada (Citizenship and Immigration), 2011 FCA 35, [2012] 4 FCR 3, at paragraphs 25-27; Canada (Public Safety and Emergency Preparedness) v Martinez-Brito, 2012 FC 438, [2013] 4 FCR 471 at para 15; Sidhu v Canada (Minister of Citizenship and Immigration), 2012 FC 515, 409 FTR 58 at para 38).

V. Analysis

24     As the Respondent correctly points out, the IAD has sole jurisdiction to hear and determine all questions of law and fact and is required by the Act to deal with all proceedings before it informally and as quickly as circumstances permit. Accordingly, the Respondent claims that it is open to the IAD to exercise control on its own procedure, including the decision not to hear witnesses in a given case.

25     However, according to subsection 162(2) of the Act, these broad powers need to be exercised "as the circumstances and the conditions of fairness and natural justice permit". They also have to be exercised in accordance with the Rules, adopted under section 161 of the Act, governing the functioning of the IAD.

26     Here, by denying the self-represented Applicant the opportunity to provide the evidence of any of the four witnesses she had formally notified the IAD of her intention to call, as she was expected and required to do under the Immigration Appeal Division Rules, the IAD just went too far in controlling its own hearing process.

27     Seeking to have four witnesses testify was not an excessive demand given the nature of the relief sought in this case. The flexible nature of the procedure before the IAD is aimed at the effectiveness of the entire process, not as a means to trump the right to a fair hearing (Wang v Canada (Minister of Citizenship and Immigration), 2007 FC 531, 312 FTR 312). Here, the decision of the IAD not to hear any of Ms Kotelenets' witnesses took away any possibility for her to strengthen her claim for humanitarian and compassionate relief.

28     I agree with Ms Kotelenets that while she was indeed capable of telling her own story, the IAD failed to recognise that different witnesses could bring their own perspective to the humanitarian and compassionate issues at hand. Her mother, for instance, whose medical condition was the cause of the Canadian authorities' refusal to allow her (and Ms Kotelenets stepfather) into Canada, could have explained in her own words her current medical situation in light of the up-dated medial report filed by Ms Kotelenets. Furthermore, she could have provided her own perspective on the hardship caused by the separation with her daughter and grand-children living in Canada. As for Ms Kotelenets' two sons, they too could have brought to the case their own perspective on the importance of having their grand-parents in Canada and on their relationship with them since their childhood. In a humanitarian and compassionate considerations analysis, which turns on the balancing of a certain number of factors, it is hard to imagine that none of these three witnesses could have added something relevant to that analysis.

29     In Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817, the Supreme Court of Canada reinforced that the concept of procedural fairness "is eminently variable and its content is to be decided in the specific context of each case" (Baker, at para 21). It emphasized that in determining what is the content of the duty of fairness in a given set of circumstances, consideration shall be given to the underlying notion "that the purpose of the participatory rights contained within the duty of procedural fairness is to ensure that administrative decisions are made using a fair and open procedure, appropriate to the decision being made and its statutory, institutional and social context, with an opportunity for those affected by the decision to put forward their views and evidence fully and have them considered by the decision-maker" (Baker, at para 22, my emphasis).

30     As stated by my colleague Justice Robert Barnes in Wang, above, at para 15, the right to make one's case is subject to reasonable limitations but those limitations, when they are the result of the exercise of discretion, are to be made and applied in a principled way:

·        Nevertheless, it is well understood that the exercise of discretion by a decision-maker to refuse to hear evidence on behalf of an interested party must be carried out in a principled way even where a party has not observed a non-mandatory procedural prerequisite. These points are duly noted by David J. Mullan in his text Administrative Law (Toronto: Irwin Law, 2001), where, at page 291, he discussed the elements of proper decision-making in this context of procedural fairness: 

·        Administrative tribunals and agencies have control over the conduct of their proceedings and this includes the ability to place limits on the right of parties to adduce evidence and to make submissions in support of their position. Without such authority, decision makers would be in the thrall of anyone anxious to disrupt the timely operation of the administrative process. Nonetheless, the exercise of these powers is conditioned by a number of considerations. Generally, it will depend on an appropriate judgment by a tribunal that further evidence or submissions should not be permitted on the basis of inadmissibility, irrelevance, or repetition. An erroneous assessment on any of these bases can lead to a reviewable denial of procedural fairness. 

·        Far more controversial, however, is the extent of the entitlement of tribunals to limit participatory rights simply by reference to considerations of efficiency and the need for the expeditious carrying out of the statutory mandate. Indeed, even in the common situation where the relevant legislation provides that a tribunal is to proceed expeditiously, courts have been reluctant to allow this a basis for denying the right to call witnesses who may add something of relevance to the matter under consideration. There is also precedent condemning a policy of confining hearings to a set length at least when it can be established that rigid adherence to the policy in the particular case would potentially affect the normal natural justice entitlements of a participant. (Emphasis in original) 

31     Here, the Applicant had complied with the requirements of the Immigration Appeal Division Rules by providing the IAD in due time with her witness information along with a brief statement of the purpose and substance of the witnesses testimony and by requesting an interpreter for her mother's testimony. According to these Rules, it is where an appellant fails to provide witness information in due time that the IAD is expressly empowered to decide whether to allow a witness to testify.

32     In such context, Ms Kotelenets was entitled to expect that she would be in a position to fully present her case to the IAD. This is not what happened. Being a self-represented party in an immigration law context, Ms Kotelenets was entitled to some -- if not every possible -- leeway to present her case. In such cases, the duty of procedural fairness may actually be more onerous because self-represented parties cannot rely on counsel to protect their interests (Nemeth v Minister of Citizenship and Immigration, 2003 FCT 590, 233 FTR 301, at para 13; Law v Canada (Minister of Citizenship and Immigration), 2007 FC 1006, at paras 15-19; Kamtasingh v Canada (Minister of Citizenship and Immigration), 2010 FC 45).

33     Although she had done everything that was required of her in that proceeding, she was not afforded any leeway by the IAD. A reading of the transcript of the hearing shows that Ms Kotelenets seemed defenceless vis-à-vis the IAD's inquiry as to whether there was really a need for her to call witnesses. One could say that she was totally taken by surprise. In my view, this contributed to the IAD crossing the line in respect of the duty of procedural fairness it owed to Ms Kotelenets.

34     Finally, although one could argue, as does the Respondent, that the evidence provided by Ms Kotelenets was sufficient to dispose of her appeal, the fact the evidence from the witnesses she wanted to call might not assist her case is not a valid reason for refusing to hear it (Timpauer v Air Canada, [1986] 1 FC 453). To dismiss witnesses solely based on the fact that the IAD believed the Applicant's testimony is an error in the qualification of the central issue of the case. The IAD rightly pointed to the factors which were to be considered in a special relief case. Notably, they included, in this case, the relationship between the Applicant and her mother, the reasons for sponsorship, the situation of both the Applicant and her mother, the existence of dependency between the two, and the hardship the family would suffer by not being reunited. Therefore, when assessing humanitarian and compassionate considerations that would allow for special relief, the IAD must consider the evidence provided on the above factors. It is clear, in my view, that some of the witnesses Ms Kotelenets wished to call could have offered evidence or additional concerns and facts relevant to the assessment the IAD had to make.

35     In refusing to hear any of the four witnesses, the IAD denied the Applicant her "day in court", did not pay enough attention to the fact she was self-represented and had complied with the procedures available to her under the Rules governing the calling of witnesses, and thus prevented her from presenting her case fully and in its entirety. As my colleague Justice Barnes said in Kamtasingh, above, "this is a situation where the duty to allow [the applicant] to fully present his case was sacrificed for the desire for administrative efficiency. That is not a permissible trade-off" (see also Singh v Canada (Minister of Employment and Immigration), [1985] 1 SCR 177, [1985] SCJ No. 11 (QL) (SCC) at para. 70). In my view, this is what happened in the present case.

36     For these reasons, I find that the IAD breached the duty of procedural fairness owed to Ms Kotelenets. A new hearing before a different member of the IAD is therefore warranted.

37     No question of general importance has been proposed by the parties. None will be certified.

JUDGMENT

THIS COURT'S JUDGMENT is that the application for judicial review is granted. The matter is referred back to the IAD so that a new hearing may be held before a differently constituted panel. No question is certified.

LeBLANC J.

SERGIO R. KARAS CHAIRS ETHICS PROGRAM AT ONTARIO BAR ASSOCIATION

I chaired and moderated a panel of experts in the program "Bridge over troubled waters: ethical issues in immigration law" , held yesterday, March 25, 2015 at the Ontario Bar Association in Toronto. Panel members included Counsel for the Law Society of Upper Canada, Counsel for LawPro, and General Counsel for one of Canada's largest law firms.

INCONSISTENT FINANCIAL INFORMATION RESULTS IN STUDY PERMIT REFUSAL

In the case below, the contradictory and inconsistent financial information presented resulted in the refusal of the Study Permit by the visa officer. The Federal Court upheld the decision.

Weldegerima v. Canada (Minister of Citizenship and Immigration)

Between
Haftom Teklay Weldegerima, Applicant, and
The Minister of Citizenship & Immigration, Respondent

[2015] F.C.J. No. 258

2015 FC 268

Docket: IMM-5515-14

 Federal Court
Vancouver, British Columbia

Mactavish J.

Heard: March 2, 2015.
Judgment: March 3, 2015.

(16 paras.)

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JUDGMENT AND REASONS

1     MACTAVISH J.:-- Haftom Teklay Weldegerima seeks judicial review of the decision of a visa officer refusing his application for a student visa. The officer was not satisfied that Mr. Weldegerima had sufficient funds available to him to allow him to pursue his studies, nor was the officer satisfied that Mr. Weldegerima would leave Canada after completing his program.

2     Mr. Weldegerima submits that the reasons given for the visa officer's decision were inadequate, and the decision itself was unreasonable. He further submits that he was treated unfairly by the visa officer, as he was not afforded an opportunity to address the officer's concerns. Mr. Weldegerima has not, however, persuaded me that there is a basis for this Court to intervene, with the result that his application for judicial review will be dismissed.

I. Background

3     Mr. Weldegerima is an unmarried 26 year-old who lives in Addis Ababa, Ethiopia with his parents and one of his four siblings. His other siblings also live in Ethiopia. In 2014, Mr. Weldegerima applied for a visa to pursue a Business Diploma in the E-Business and Technology program at Fraser Valley Community College in Surrey, British Columbia.

4     Mr. Weldegerima stated in his application that he has been working for Samueal General Trading & Industry P.L.C. since he graduated from high school in 2008, and that he currently holds the position of "Manager Administration". Samueal General Trading is a construction company that imports materials, and constructs roads and buildings.

5     Mr. Weldegerima says the company selected him to study abroad because he is a "key employee" with a passion for adapting to new technology and systems. In his May 28, 2014 letter to Citizenship and Immigration Canada, Mr. Weldegerima explained that many Ethiopian construction companies still manage projects using manual systems with outdated technology and that they struggle with profit margins. He hoped that studying abroad would make the company's projects more profitable and increase "effectivity."

6     Mr. Weldegerima's employer also provided a letter stating that it was hoped that the program would help them gain "vital knowledge in the field of E commerce" and "enhance [the company's] growth."

II. Mr. Weldegerima's Financial Resources

7     Section 220 of the Immigration and Refugee Protection Regulations, SOR/2002-227, requires that applicants for study visas have sufficient financial resources available to them to allow them to complete their studies in Canada. The information provided by Mr. Weldegerima with respect to his financial situation was, however, both confusing and internally inconsistent.

8     For example, Mr. Weldegerima stated on his application form that his employer would provide him with $30,000 in total. His tuition amounted to $10,290, which would leave him with $19,710 for his living expenses. In contrast, Mr. Weldegerima stated in a letter dated June 21, 2014 that his employer had transferred $11,000 to him for his living expenses. Mr. Weldegerima did not provide any explanation for this discrepancy, or any means by which these inconsistent amounts could be reconciled.

9     To further complicate matters, a letter from Mr. Weldegerima's employer stated that he would be provided with $15,000 for his living expenses. However, Mr. Weldegerima provided a deposit voucher dated June 18, 2014, which indicated that his employer had deposited $21,000 into his bank account.

10     If some of these funds were intended to cover Mr. Weldegerima's tuition, this would again be inconsistent with the letter from Samueal General Trading, which stated that the company would pay tuition "as and when due directly to the College Bank Account" [my emphasis].

11     There is further inconsistency in the evidence as to when it was that Mr. Weldegerima would receive his funding from his employer. Mr. Weldegerima stated that "my Employer has also transferred the full Annual Living expenses", providing a deposit voucher indicating that he had received the sum of $21,000. However, the letter from Samuel General Trading states that payment for Mr. Weldegerima's living expenses "will be made available as and when the travel arrangements for the study program have been finalized" [my emphasis].

12     Given the wholly unsatisfactory nature of the information provided by Mr. Weldegerima as to the financial resources available to him, the officer's finding that he had failed to establish that he had sufficient financial resources available to him to allow him to complete his studies in Canada was entirely reasonable.

13     There was, moreover, no obligation on the visa officer to notify Mr. Weldegerima of the officer's concerns in this regard, nor did fairness require that Mr. Weldegerima be afforded an opportunity to address those concerns prior to a decision being made in relation to his application for a study permit. There is a legislative requirement that applicants demonstrate that they have sufficient financial resources to allow them to complete their studies in Canada, and it was incumbent on Mr. Weldegerima to provide coherent evidence establishing that he had sufficient financial resources available to him. This he failed to do.

14     The visa officer had two independent reasons for refusing the visa application. My finding that the finding that Mr. Weldegerima had failed to establish that he had sufficient funds available to him to complete his proposed course of studies is sufficient to dispose of this application. Had it been necessary to do so, I would also have found that the officer's finding that Mr. Weldegerima had not established that he would leave Canada after completing his studies was also reasonable.

15     Contrary to Mr. Weldegerima's submission, the officer did not find that Mr. Weldegerima had family members in Canada. The decision-letter simply indicates that Mr. Weldegerima's family ties in Canada and Ethiopia were considered in evaluating whether he would leave Canada after the completion of his studies. The relative family ties of a visa applicant in Canada and in his country of origin is a proper consideration in assessing whether a visa applicant will leave Canada at the end of the visa period.

III. Conclusion

16     For these reasons, the application for judicial review is dismissed. I agree with the parties that the case does not raise a question for certification.

JUDGMENT

THIS COURT'S JUDGMENT is that the application for judicial review is dismissed.

MACTAVISH J

SERGIO R. KARAS INTERVIEWED BY CITY NEWS

I was interviewed by City News on the ongoing case of the deportation for alleged terrorist plotter. Here Is the clip:

http://www.citynews.ca/2015/03/12/deporting-alleged-terrorist-instead-of-prosecuting-him-absurd-lawyer-says/

http://www.citynews.ca/2015/03/12/deporting-alleged-terrorist-instead-of-prosecuting-him-absurd-lawyer-says/

VISA OFFICER ERRED IN DENYING VISA TO CITIZEN OF ZIMBABWE DUE TO COUNTRY SITUATION

In the case below, the Federal Court quashed a visa officer's decision refusing a Temporary resident Visa to an applicant only because of the situation in Zimbabwe. The visa officer made no intelligible connection between that situation and the applicant, who had visited Canada previously without overstaying.

Karambamuchero v. Canada (Minister
of Citizenship and Immigration)

Between
Naome Karambamuchero, Applicant, and
The Minister of Citizenship and Immigration, Respondent

[2014] F.C.J. No. 1342

2014 FC 1240

Docket: IMM-5855-13

 Federal Court
Calgary, Alberta

Zinn J.

Heard: December 17, 2014.
Judgment: December 18, 2014.

(12 paras.)

---

JUDGMENT AND REASONS

1     ZINN J.:-- This is a judicial review of the decision of a visa officer in Pretoria, South Africa, on July 3, 2013, denying Naome Karambamuchero a Temporary Resident Visa [TRV].

2     Ms. Karambamuchero is a citizen of Zimbabwe. She sought the TRV in order to visit her daughter, son-in-law, grandchildren, and son in Canada. She had visited her children in Canada in 2002, 2004, and 2007. However, since 2007, she has been refused a TRV four times. As a result of these refusals, she decided to engage counsel to assist her in the most recent application, presumably hoping for a different result.

3     In the form letter rejecting her application, the visa officer checked boxes indicating that in reaching that decision several factors were considered including "your family ties in Canada and in your country of residence" and "purpose of visit." More detail is provided in the notes of the officer which read as follows:

·        Reviewed application. Pa is still in same employment in Zim as school principal since 1994. Pa has son in UK and 2 children in Cda who were previous refugee claimants -- pa travelled to UK in 2010 and 2012 on holiday -- pa indicates her previous travel to China in 2012 was for business purposes. Pa has submitted a letter from Cdn lawyer indicating that pa as strong ties to Zim -- pa lives with mother, son and a nephew. Fosscheck dghter who made cr claim in 2002 and landed in 2004 and pa's son made cr claim in 2008 and landed in 2011. Based on the information provided I am not satisfied that pa's situation has significantly changed since her previous refusals in 2012 -- pa remains in same employment etc with same family ties to Cda who both have history of refugee claims in Cda. I have also considered aspects which might influence pa to remain in Cda such as the current unstable situation in Zimbabwe and I am not satisfied that she wld leave Cda after her authorised stay. TRV refused. [sic emphasis added] 

4     Ms. Karambamuchero submits there are three issues to be considered: Whether the visa officer failed to consider the totality of the evidence, whether the visa officer breached the duty of fairness by relying on extrinsic evidence and his knowledge of local conditions, and whether the visa officer breached the duty of fairness in failing to provide sufficient reasons to allow the applicant to know why her application had been refused.

5     I agree with the Minister that no one is entitled to a TRV, that considerable deference is to be given to visa officers in making such decisions, that the duty of fairness lies at the lower end of the scale, and that a court should not parse the wording of decisions too minutely given the nature of the decision and the demands placed upon visa officers. Nonetheless, this application must be allowed and the decision set aside because the decision-making process and accordingly its result does not meet the required standard of justification, transparency and intelligibility.

6     Ms. Karambamuchero provided evidence of several factors that would suggest that she would not overstay a visit to Canada. As the visa officer noted, she is a school principal in Harare. But that is only part of the story. She is the director and principal of Greatstride College, which she founded in 1994. Accordingly, she is not a mere employee; she is a successful business woman. She has two business bank accounts with balances totaling more than $35,000 USD, and she owns her home and three vehicles. She has family ties to Zimbabwe. She lives with her mother and a son. She has other family in Zimbabwe.

7     The visa officer observes that there is a "current unstable situation in Zimbabwe" but it is unclear how or whether that impacts Ms. Karambamuchero. There is nothing in the record that suggests that the stability of the country has had any impact on her. On the contrary, she appears to be prospering in the country and one must wonder why she would voluntarily leave. The country has in fact been unstable for some time, but she had left Zimbabwe and returned a number of times, including two then recent trips to China on business, and a trip to the United Kingdom to visit her son living there.

8     There can be no objection to the visa officer accessing the Field Operations Support System [FOSS] to confirm the status of Ms. Ms. Karambamuchero's two children in Canada. However, it is troubling that the visa officer does more than note that both are landed residents. Rather, he notes that "both have history of refugee claims." The inference surly is that Ms. Karambamuchero will therefore make a refugee claim when she is in Canada. But such an inference is unreasonable on the facts here.

9     The reality is that Ms. Karambamuchero had previously visited Canada when the refugee claims were pending, or had been granted, and then returned to Zimbabwe. Her daughter entered Canada in 2002 and was granted refugee protection in 2004. Her son entered Canada in 2008 and was granted refugee status in 2011. Ms. Karambamuchero visited Canada in 2002, 2004, and 2007. Therefore, she visited Canada and returned to Zimbabwe at least once and quite possibly twice after her daughter was granted status. To suggest that she might make a claim for status now, when she did not previously, requires some explanation from the visa officer. There is none.

10     In summary, the decision rests on two observations by the visa officer: The unstable country conditions in Zimbabwe and previous refugee claims by her children. Absent some explanation how those country conditions might prompt this business woman to flee her country and leave behind a successful business, a mother, a son, a home, and other family, the conditions alone cannot reasonably support the decision. Absent some explanation why her children claiming and being granted refugee status in Canada, might prompt her to do likewise when she did not do so in the past, the visa officer's decision cannot reasonably be supported.

11     For these reasons, the result is set aside.

12     Neither party proposed a question for certification.

JUDGMENT

THIS COURT'S JUDGMENT is that this application is allowed, the decision is set aside, the application for a temporary resident visa is to be determined by a different visa officer, the applicant is to be permitted to update her information, and no question is certified.

ZINN J.

EMAIL COMMUNICATIONS IN FOCUS IN FEDERAL COURT CASE

The question of email communications between CIC and applicants has been litigated a few times, with some contradictory results. In the case below, there was a failure by the applicant to receive a critical email requesting clarification of important information. In this case, the applicant succeeded in overturning a refusal due to the failed email, but in other cases the result was opposite. the question will no doubt return in future cases.

Asoyan v. Canada (Minister of Citizenship and Immigration)

Between
Taguhi Asoyan, Applicant, and
Minister of Citizenship and Immigration, Respondent

[2015] F.C.J. No. 191

2015 FC 206

Docket: IMM-447-14

 Federal Court
Montréal, Quebec

Annis J.

Heard: December 10, 2014.
Judgment: February 18, 2015.

(27 paras.)

---

JUDGMENT AND REASONS

·       ANNIS J.:-- 

I. Introduction

1     This is an application for judicial review pursuant to section 72(1) of the Immigration and Refugee Protection Act, RSC 1985, c C-29 [IRPA or the Act] of a November 26, 2013 decision by an immigration officer [the Officer] at the Embassy of Canada in Moscow, Russia [the Embassy], refusing the applicant's application for a permanent residence in Canada [the application].

2     The applicant is seeking to have the decision set aside and the application referred back to a different visa officer for reconsideration.

3     For the reasons that follow, the application is allowed.

II. Background

4     The applicant, an Armenian citizen, applied for permanent residence on November 16, 2012. She provided Citizenship and Immigration Canada [CIC] with an email address, taguhi_a@yahoo.com [the Email Address], for the purpose of all communications regarding her application.

5     The application was transferred to the Embassy on February 8, 2013. In an entry in the Global Case Management System [GCMS] dated February 14, 2013, it was noted that there was a "gap noted in [the primary applicant's] personal history." The GCMS entry states that an email was sent to the applicant at the Email Address on February 14, 2013 requesting that the applicant and her family provide updated forms and a Schedule A Background/Declaration form for the applicant [the Forms] within 30 days. The email advised that this information was required for the application to be processed and that if the applicant did not respond or comply with the request within the time allowed, the application might be refused.

6     The applicant's evidence on this application is that she inquired with the Sydney Centralized Intake Office [CIC Sydney] on March 4, 2013 by email because she had not received an Acknowledgement of Receipt [AOR] for the application. She then received an email from CIC Sydney on March 19, 2013 forwarding her the AOR that had been sent on January 7, 2013, but which she alleges to have never received. This is corroborated by the GCMS entries.

III. Impugned Decision

7     In a letter dated November 26, 2013, the Officer advised the applicant that her application for permanent resident status had been refused on the basis that she had failed to provide the required documents. This refusal letter was sent to the Email Address and the applicant received the letter.

8     In the refusal, the Officer indicated that an email had been sent to the Email Address on February 14, 2013 requesting the Forms, advising the applicant of the deadline for contacting the Embassy or providing the requested documents, and outlining the consequences for non-compliance.

9     The Officer found that the applicant had not provided the requested information, which was necessary to determine whether she and her family are admissible to Canada, within the original 30 day deadline or within a reasonable amount of time. Therefore, the Officer refused the application pursuant to subsection 11(1) of the Act.

10     Not understanding what had happened, the applicant contacted the Embassy on November 28, 2013 stating that she had not received any notification or email from the Embassy requesting the Forms. She contacted the Embassy again on December 2, 2013, noting that there had been a previous failure to receive CIC communications (in relation to the AOR) and that, logically, she would not have contacted the Embassy on March 4, 2013 requesting an update on the status of her application if she had received the February 14, 2013 email.

11     On January 27, 2014, counsel for the applicant submitted a second reconsideration request on her behalf to the Embassy, alleging that the only plausible explanation for the applicant's non-compliance was a "technical error." A statement from the applicant was included with the letter, which contended that "[my] yahoo e-mail address taguhi_a@yahoo.com is still a functioning and valid email address I use today..." and that a "technical problem must have occurred..." The corresponding GCMS entry notes that the applicant had not provided any evidence of a technical issue having occurred and that there was "no notification received that the email was not or could not be delivered." The Officer concluded that he was not satisfied that there were sufficient grounds to re-open the Application as he was still satisfied that the applicant had not complied with the Embassy's request for documentation.

IV. Statutory Provisions

12     The following provisions of the Act are applicable in these proceedings:

·       11. (1) A foreign national must, before entering Canada, apply to an officer for a visa or for any other document required by the regulations. The visa or document may be issued if, following an examination, the officer is satisfied that the foreign national is not inadmissible and meets the requirements of this Act. 

...

·       16. (1) A person who makes an application must answer truthfully all questions put to them for the purpose of the examination and must produce a visa and all relevant evidence and documents that the officer reasonably requires. 

...

* * *

·       11. (1) L'étranger doit, préalablement à son entrée au Canada, demander à l'agent les visa et autres documents requis par règlement. L'agent peut les délivrer sur preuve, à la suite d'un contrôle, que l'étranger n'est pas interdit de territoire et se conforme à la présente loi. 

...

·       16. (1) L'auteur d'une demande au titre de la présente loi doit répondre véridiquement aux questions qui lui sont posées lors du contrôle, donner les renseignements et tous éléments de preuve pertinents et présenter les visa et documents requis. 

...

V. Issues

13     The following issue arises in this application:

·       1. 

Did the Officer breach the duty of fairness by failing to provide the applicant with proper notice and a meaningful opportunity to respond to the request for information? 

VI. Standard of Review

14     The Supreme Court of Canada in Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190 [Dunsmuir] held that a standard of review analysis does not need to be conducted in every case. In situations where past jurisprudence has settled the standard of review for a particular question, a reviewing court may adopt that standard of review without further analysis (Dunsmuir at para 57).

15     The question of whether the Officer provided the applicant with a meaningful opportunity to respond to the Officer's concerns is a question of procedural fairness (Patel v Canada (Minister of Citizenship and Immigration), 2014 FC 856 [Patel]; Yazdani v Canada (Minister of Citizenship and Immigration), 2010 FC 885, 374 FTR 149 at paras 23-25 [Yazdani]; Zare v Canada (Minister of Citizenship and Immigration), 2010 FC 1024, [2012] 2 FCR 48 [Zare]).

16     Questions of procedural fairness are reviewable on the standard of correctness (Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009] 1 SCR 339 at para 43). This means that if the Officer breached the duty of procedural fairness owed to the applicant, the Court must intervene (Abboud v Canada (Citizenship and Immigration), 2010 FC 876 [Abboud]).

VII. Analysis

17     In Kaur v Canada (Minister of Citizenship and Immigration), 2009 FC 935 (Kaur) at para. 12, Justice Barnes answered the question as to who should bear the consequence of an apparent communication breakdown in a case involving email:

·       In summary, when a communication is correctly sent by a visa officer to an address (email 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. 

·       [Emphasis added] 

18     As the applicant had inquired with the CIC Sydney on March 4, 2013 by email because she had not received an AOR for the application, which fell within the 30 day time period fixed by the respondent requesting updated information, it is clear that the respondent had an indication that the February 14 email had not been received.

19     Accordingly, by those circumstances, the risk of non-delivery shifted to the respondent. It thereby breached its duty of procedural fairness in refusing the application without making inquiries to ensure that the applicant had received its email requesting additional information.

20     In addition, I am in agreement with the decision in Yazdani that the applicant should not have to bear responsibility for the failed email communication because it would be unduly harsh to place the risk on an applicant who properly submitted their application, provided a valid email address with no evidence of malfunction, and who was awaiting further instructions when the application is rejected without an assessment on the merits. I also am in agreement with Zare that in many situations it would be unfair to the applicant for the respondent to bear no responsibility for communication delivery, especially when it did not provide a safeguard against possible email transmission failure that was available as a function of the email program.

21     I would add two comments to the jurisprudence that has developed to date in these failed email cases. First, it should be understood how it came about that the general rule of communications for electronic transmissions was reversed from that applying to ordinary mail. Originally, the onus lay with the sender to establish that her communication had reached the sendee. This gave rise to recourse to registered mail to discharge this onus. With the advent of facsimile machines however, the onus to prove a failed communication moved to the addressee. The established technical protocols, whereby the sending and receiving facsimile machines communicated details of the transmission to each other, meant that upon the receiving fax acknowledging receipt, it was reasonable that the addressee would be required to explain why she had not received the document.

22     There is no such similar reliability with emails whereby the receiving computer communicates with the sending one. In Zare, an expert on email communications described the frailties of email communications. While I recognize that one normally cannot rely on evidence provided in other applications, when it is accepted as a fact by another judge of this Court and in the circumstances of a paper-based procedure involving the same issue, I think some weight can be attributed to it. I quote from Justice Mandamin's reasons at paragraphs 26 and 27 as follows:

·       [26] Ray Xiangyang Wang is a computer professional with 10 years of university study in the filed of computer science and who holds BSc. MSc. and PhD. degrees. He has worked as a programmer, project manager, business analyst, and application consultant in the field for 17 years. His credentials were not challenged and he was not cross-examined on his affidavit. I am prepared to accept him as an expert with knowledge of computer science and he may offer opinion evidence about the use of email communications 

·       [27] Mr. Wang stated that email is delivered by simple mail transfer protocol (SMTP) through internet service providers. He opines that "[i]t is well known that the original mail service provides limited mechanisms for tracking a transmitted message and none for verifying that it has been delivered or read. It requires that each mail server must either deliver onward or return a failure notice (bounce message), but both software bugs and system failures can cause messages to be lost. 

23     Moreover, in the last year or so we have become aware of the massive interception of ordinary citizen's internet communications by international government agencies, in addition to other individuals and organizations that have been unlawfully hacking and intercepting electronic transmissions as are being regularly reported in the news. In my view, the fact that third party agencies now access ordinary citizens email transmissions introduces another element undermining the reliability of these transmissions being received by intended recipients.

24     Second, if the onus is to pass to the recipient of emails, I am of the view that the respondent is at least required to exhaust all reasonable mechanisms available on email programs to ensure receipt of their important transmissions. I here refer to the acknowledgement of "receipt" and "receipt and read" options available on email programs such as Outlook. These options request acknowledgement by the recipient and thereby serve as a means to ensure that messages have been received by the acknowledgement that would be expected to be returned by anyone seeking residency in Canada.

25     In support of the requirement to use such options, I quote a the recent English decision of Bermuth Lines Limited v High Seas Shipping Limited [2006] 1 Lloyd's reports 537, where at paragraph 29, the Court indicated that the failure to require confirmation of the intended recipient is evidence that can refute the conclusion that the email was received:

·       [29] That is not to say that clicking on the "send" icon automatically amounts to good service. The email must, of course, be despatched to what is, in fact, the email address of the intended recipient. It must not be rejected by the system. If the sender does not require confirmation of receipt he may not be able to show that receipt has occurred. There may be circumstances where, for instance, there are several email addresses for a number of different divisions of the same company, possibly in different countries, were dispatched to a particular email address is not effective service. 

·       [Emphasis added] 

26     The protocol of the respondent for communicating with applicants does not contain any requirement to include an acknowledgement of receipt of emails, although a simple and quick procedure available for this purpose. The very high self-interest of the applicant who seeks permanent residency in Canada as soon as possible is such that if no acknowledgement is received within the time period allotted, the Minister is put on notice that its message likely did not arrive in the first place. At the minimum, therefore a second attempt to send the email to the given address can be made. All other things considered, this should normally satisfy any requirement of the respondent to demonstrate reasonable attempts to communicate with the applicant.

VIII. Conclusion

27     For the reasons provided above, the application is allowed. There is no question for certification for appeal.

JUDGMENT

THIS COURT'S JUDGMENT is that the application is allowed. There is no question for certification for appeal.

ANNIS J.