Ottawa, Ontario, February 23, 2007
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
Applicant
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] In 2000, the Applicant, Mr. Dharmeshkumar Pravinbhai Shah, applied for permanent resident status in Canada. In a decision dated February 2, 2006, an Immigration Officer (Immigration Officer) at the Immigration Section of the Canadian High Commission in New Delhi (CHC) denied his application. The Applicant seeks judicial review of that decision.
[2] At least in part, the application for permanent residence was rejected because the Applicant had not appeared for his scheduled interview. The Applicant submits that he was never advised of the interview and that, accordingly, the decision of the Immigration Officer should be overturned. In contrast, the Respondent submits that a call-in letter was faxed to the Applicant’s representative, Worldwide Immigration Consultancy Services Ltd. (WWICS), on October 12, 2005 to fax number 901725063889, along with six other letters convoking clients of WWICS for interviews. The Respondent presents, as evidence, a copy of a fax confirmation set out on what is alleged to be the first page of the 21 page fax that contained the Applicant’s call-in letter.
Issue
[3] This application raises the following issue:
1. Did the Immigration Officer err in refusing the application because the Applicant failed to
attend the interview due to circumstances beyond his control?
Preliminary Motion
[4] At the commencement of the hearing before me, the Applicant brought a motion to admit a further affidavit of Mr. Devinder Sandhu who is a consultant with WWICS and the person in charge of the relevant office in India. In this further affidavit, he presents, for the first time, evidence regarding one of the other six call-in letters that he claims were not received. In respect of that one individual (Mr. Varghese), Mr. Sandhu advises the court that he notified immigration officials that the faxed call-in letter had been sent to the wrong number – 901725063889 rather than 911725063889. He further states that, when he told officials at the High Commission of this error, Mr. Varghese was provided with another interview date. It is evident that this late evidence was submitted to demonstrate that immigration officials had sent all 21 pages – including the call-in letter of the Applicant – to the wrong fax number. There are a number of reasons for me to dismiss the motion or to give no weight to this evidence:
1. This information could and should have been provided earlier. It has been apparent since at least December 6, 2006, when the Certified Tribunal Record was provided to the Applicant, that the Applicant’s call-in letter was sent in a package that included that of Mr. Varghese. At this late date, the Respondent is unable to cross-examine on this evidence or to provide responding evidence. Admission of this evidence is fundamentally unfair to the Respondent.
2. I have no evidence beyond the untested testimony of Mr. Sandhu as to why Mr. Varghese was provided with another opportunity to appear before a visa officer.
3. The evidence of a different fax number flies in the face of Mr. Sandhu’s confirmation, during cross-examination, of the 901725063889 fax number and his acknowledgement that other faxes had been received.
4. The evidence also is contrary to the untested evidence of Jyotsna Sethi, the Immigration Officer at CHC who was responsible for determining the Applicant’s permanent residence visa application. In his affidavit, Mr. Sethi states that he verified the fax number with the one in the Applicant’s file.
[5] As I advised the parties orally, I declined to allow the admission of this late affidavit.
Analysis
[6] The Applicant submits that the Immigration Officer erred in refusing his application because he failed to attend the interview. The Applicant relies on Liviu v. Canada (Minister of Citizenship and Immigration), 61 A.C.W.S. (3d) 1153, 33 Imm. L.R. (2d) 310, [1996] F.C.J. No. 317 (F.C.T.D.) (QL), for the principle that an application should not be refused if the applicant fails to attend an interview due to circumstances beyond his control. The Applicant also relies on Canada (Attorney General) v. Herrera, 103 A.C.W.S. (3d) 442, [2001] F.C.J. No. 120 (F.C.A.) (QL), for the principle that officers have a duty to prove that they sent an interview notice to the applicant. Further, the Applicant relies on Ilahi v. Canada (Minister of Citizenship and Immigration), 2006 FC 1399, [2006] F.C.J. No. 1758 (F.C.) (QL), for the principle that visa officers have a duty to send notice of an interview to the correct address of the applicant.
[7] Finally, the Applicant points to the recent case of Dhoot v. Canada (Minister of Citizenship and Immigration), 2006 FC 1295, [2006] F.C.J. No. 1625 (F.C.) (QL), where, under very similar circumstances, judicial review was allowed on the basis that the court was not satisfied that the call-in letter was ever sent or faxed to the applicant or the applicant’s consultant.
[8] There is no question that an applicant’s failure to attend an interview with a visa officer aimed at completing the assessment of an application for permanent residence gives the visa officer the right to assess the application without the benefit of hearing from the applicant (Su v. Canada (Minister of Citizenship and Immigration) (1998), 152 F.T.R. 136, 81 A.C.W.S. (3d) 867; Voskanova v. Canada (Minister of Citizenship and Immigration) (1999), 167 F.T.R. 258, 87 A.C.W.S. (3d) 785; Ahluwalia v. Canada (Minister of Citizenship and Immigration), 103 A.C.W.S. (3d) 590, [2001] F.C.J. No. 125 (F.C.T.D.) (QL); Scislowicz v. Canada (Minister of Citizenship and Immigration) (2000), 188 F.T.R. 123, 98 A.C.W.S. (3d) 676; Qazi v. Canada (Minister of Citizenship and Immigration), 2006 FC 1177). However, that is not the question before me. The question is not whether a visa officer may make a decision if an applicant fails to show for an interview. Rather, the question is whether a rejection decision made in situations where an applicant claims not to have received notice may be overturned. Thus, the issue is whether the notice of interview was properly sent to WWICS.
[9] In general, immigration officials at overseas visa offices bear responsibility for ensuring that the notice of an interview is sent. The Court must be satisfied that the notice was properly sent (Herrara, above; Ilahi, above; Dhoot, above). While the evidence must be examined in each case, evidence of receipt of the fax at the number provided by an applicant or his consultant would normally satisfy that burden. Factors such as the unavailability of a person to receive the fax, malfunctions of equipment at the receiving end or administrative errors such as simple failure of a consultant to advise his client are not the responsibility of the immigration officials.
[10] I turn to the evidence before me in this case. There are two questions. First, was the 21-page document for which we have confirmation of receipt faxed to the correct number? Secondly, did the letter to the Applicant form part of that transmission?
[11] As noted, the Respondent provided a copy of a page of a 21-page fax that confirms receipt of the fax at 901725063889. During cross-examination on his original affidavit, Mr. Sandhu confirmed that 0172-5063889 was a valid WWICS fax number from October 2005 to January 2006 (Q. 39). The fax number recorded on the fax sent to WWICS on October 12, 2005 shows the number 901725063889. The first digit is added to obtain an outside line from the CHC offices. Mr. Sandhu also acknowledged that he received other faxed call-in letters during the October 2005 to January 2006 period. I am satisfied that, if the letter was sent, it was sent to the correct fax number.
[12] The Applicant’s call-in letter was included with call-in letters on six other immigration files. A total of 21 pages were faxed to 901725063889. The fax receipt acknowledges receipt at that number of 21/21 pages. However, the Certified Tribunal Record does not contain the entire 21-page fax. For a sender, fax receipt is noted only after the transmission of the fax and is noted on only one page of the entire transmission. The record contains the first page on which the verification of fax receipt is contained; this first page was the first page of a letter to a Mr. Varghese (referred to above). Following this page, the officials who prepared the Certified Tribunal Record inserted only the entire letter allegedly sent to the Applicant; out of 21 pages, only four pages are included in the record. In the Applicant’s view, this raises a doubt as to whether the three-page letter to the Applicant actually formed part of this 21-page fax. If there was no other evidence to link the fax confirmation page to the call-in letter to the Applicant, I would likely agree with the Applicant. However, in addition to the fax confirmation on the first page, we have a hand notation of all seven CHC file numbers that were part of the transmission. The Applicant’s file number was included on this list. Further, we have the affidavit of Mr. Jyotsna Sethi, in which he swears that:
A three-page letter was faxed to the Applicant’s representative, WWICS, on October 12, 2005, along with six other three-page letters convoking clients of WWICS for interviews.
Mr. Sethi was not cross-examined on his affidavit.
[13] Accordingly, I am satisfied, on a balance of probabilities, that the 21-page fax was sent, on October 12, 2005, by CHC officials to the correct fax number of WWICS and that the call-in letter to the Applicant was included in the 21-page fax that was sent to WWICS.
[14] In his affidavit, Mr. Sandhu raises a number of possible reasons as to why the fax may not have been received. Most of these are speculations and, in any event, do not change my conclusion that the call-in letter was sent to the correct fax number. As noted earlier, problems on the receiving end of the fax (such as mechanical failure or improper administrative procedures) are not the responsibility of the sender.
[15] This is not a situation as was encountered by Justice Kelen in Dhoot, above. In that case, the respondent was unable to confirm that the letter was faxed to a correct fax number. Justice Kelen noted that the letterhead of WWICS contained different fax numbers than that set out on the fax receipt. In the case before me, Mr. Sandhu confirmed that the fax number was that of WWICS.
Conclusion
[16] For the above reasons, I am satisfied, on a balance of probabilities, that the call-in letter was properly sent to the Applicant. The Applicant argued no other grounds for overturning the decision of the Immigration Officer to deny the application for permanent residence. The application for judicial review will be dismissed.
[17] Neither party proposed a question for certification. I agree that the issues in this case do not raise a question of general importance and will not certify a question.
ORDER
This Court orders that:
1. The application for judicial review is dismissed; and
2. No question of general importance is certified.
“Judith A. Snider”
____________________________
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1670-06
STYLE OF CAUSE: DHARMESHKUMAR PRAVINBHAI SHAH v. THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: February 21, 2007
APPEARANCES:
John Provart FOR THE RESPONDENT
SOLICITORS OF RECORD:
Lee & Company FOR THE APPLICANT
Barristers and Solicitors
John H. Sims, Q.C. FOR THE RESPONDENT