Federal Court Decisions

Date: 20061123

Docket: IMM-419-06

Citation: 2006 FC 1399

Ottawa, Ontario, November 23, 2006

PRESENT:     The Honourable Mr. Justice O'Reilly

BETWEEN:

USMAN ILAHI

Applicant

and

THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

Respondent

REASONS FOR JUDGMENT AND JUDGMENT

[1]               In 2001, Mr. Usman Ilahi, a citizen of Pakistan, applied to become a permanent resident in Canada as a skilled worker. He submitted his application to the Canadian visa office in Islamabad. He corresponded with the office on numerous occasions, updating his coordinates, paying the required fees and requesting an interview. In December 2005, an immigration officer informed Mr. Ilahi that he had failed to attend a scheduled interview and, based solely on a review of his supporting documents, that his application was denied.

[2]               Mr. Ilahi submits that he never received notice of his interview and that his application was unfairly dismissed. He asks me to order a re-assessment by a different officer.

[3]               I agree that Mr. Ilahi was treated unfairly and must, therefore, allow this application for judicial review.

I.  Issue

[4]               Has the respondent established that it informed Mr. Ilahi of his interview?

II.     Analysis

(a) Factual Background

[5]               As mentioned, Mr. Ilahi kept in close contact with the visa office. For example, he sent two letters in August 2001 notifying the office of a change of address and his new fax number. He also asked that he be given 2-3 months’ notice of an interview because of the difficulty of traveling between Lahore and Islamabad. In 2002, he confirmed his coordinates and asked that his interview notice be sent by courier, for which he would gladly pay. In August 2002, he specifically requested an early interview and repeated his offer to pay for a courier. His consultant supplied another change of address in June 2005. It is clear that Mr. Ilahi diligently pursued his application and did everything necessary to ensure that he would receive all correspondence from the visa office.

(b)  The Duty to Prove Notice

[6]               Mr. Ilahi suggests that it was unfair for the officer to evaluate his application without an interview. He states in his affidavit that he did not receive notice of his interview and, therefore, should not be penalized for failing to attend. He argues that he should succeed on his judicial review unless the respondent can prove that he received his interview notice.

[7]               I agree that officers have a duty to give notice of an interview. But I do not agree with Mr. Ilahi that the respondent must prove that he received his notice. However, the respondent does have to prove that the officer sent an interview notice to the applicant: Canada (Attorney General) v. Herrera, [2001] F.C.J. No. 120 (C.A.) (QL). Implicit in this obligation is a duty to send the notice to the correct address. It falls to an applicant to ensure that the visa office is kept informed of his or her current address. Mr. Ilahi clearly did so here.

[8]               The respondent argues that the officer met his obligation by sending a letter to Mr. Ilahi by regular mail in November 2005, informing him of an interview the following month. The electronic notes on Mr. Ilahi’s file indicate that a letter was indeed sent to him after his address had been verified in his paper file. However, the respondent cannot produce a copy of that letter. Nor does it have any direct evidence of the address to which it was sent. It asks me to infer that the letter was sent to the correct address because the subsequent letter, informing Mr. Ilahi that his application was denied, was sent to the correct address and was duly received. However, I cannot draw this inference without a copy of the letter, or an indication in the electronic notes as to where the letter was sent. There would have been at least three different addresses in Mr. Ilahi’s paper file. I cannot conclude, without any direct evidence on the point, that the officer used the correct address. 

[9]               Accordingly, I find that the respondent has failed to prove that the officer sent an interview notice to Mr. Ilahi. Therefore, I must order that Mr. Ilahi’s application be re-assessed by a different officer, after an interview. Neither party proposed a question of general importance for me to certify, and none is stated.

JUDGMENT

            THIS COURT’S JUDGMENT IS that:

1.                  The application for judicial review is allowed;

2.                  A re-assessment of Mr. Ilahi’s application by a different officer is ordered.

3.                  No question of general importance is stated.

“James W. O’Reilly”

FEDERAL COURT

NAME OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                          IMM-419-06

STYLE OF CAUSE:                          ILAHI v. MCI

PLACE OF HEARING:                    Toronto, Ontario

DATE OF HEARING:                      November 14, 2006

REASONS FOR JUDGMENT

 AND JUDGMENT:                         O’REILLY J.

DATED:                                             November 23, 2006

APPEARANCES:

SOLICITORS OF RECORD: