Asoyan v. Canada (Minister of Citizenship and
Immigration)
Between
Taguhi Asoyan, Applicant, and
Minister of Citizenship and Immigration, Respondent
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.
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:
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.
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