[2012] 2 F.C.R. 48
IMM-5285-09
2010 FC 1024
Afshin Zare (Applicant)
v.
Minister of Citizenship and Immigration (Respondent)
Indexed as: Zare v. Canada (Citizenship and Immigration)
Federal Court, Mandamin J.—Toronto, July 22; Ottawa, October 20, 2010.
Citizenship and Immigration — Status in Canada — Permanent Residents — Judicial review of decision by visa officer refusing applicant’s permanent resident visa application for failing to respond to e-mail request for information — Visa officer sending e-mail to applicant’s agent, receiving delivery status notification (DSN) that e-mail successfully relayed — Agent declaring that e-mail request never received — Whether e-mail transmission resulting in denial of procedural fairness — Applicant not receiving visa officer’s e-mail, not given notice of requirement to provide information — DSN message referring to relay of e-mail, not to receipt —Evidence herein that e-mail communication to applicant failing — Warsaw visa office not providing safeguard against possible e-mail transmission failure — Failure to properly communicate request resulting in breach of procedural fairness — Application allowed.
This was an application for judicial review of a decision by a visa officer refusing the applicant’s permanent resident visa application under the skilled worker category for failing to respond to the visa officer’s e-mail request for information.
The applicant’s visa was initially processed at the visa office in Damascus, where documents were exchanged via e-mail with the applicant’s agent. The applicant’s file was transferred to the visa office in Warsaw, from where a visa officer sent an e-mail to the agent requesting more information about the applicant’s work experience, and advising the agent of the file transfer. The Warsaw visa office received a delivery status notification (DSN) stating that the message was successfully relayed to the agent. When no response was received, the visa officer refused the application and sent a refusal letter by post to the agent. The agent declared that the e-mail request was never received, and learned of the file transfer for the first time through the visa officer’s refusal letter.
At issue was whether the applicant was denied procedural fairness by the e-mail transmission of the request to provide additional information.
Held, the application should be allowed.
The agent, and therefore the applicant, did not receive the visa officer’s e-mail and was not given notice of the requirement to provide further information. The wording of the DSN message did not mean that the message was received by the agent. It referred to a relay of the e-mail, not its receipt, and thus could not be taken as evidence of delivery of the e-mail. While the risk of non-delivery rests with the applicant when a communication is correctly sent by a visa officer to an address provided by the applicant and there is no indication that the communication may have failed, there was evidence in the present case that the e-mail communication failed. Although the visa officer acted in good faith in sending the request by e-mail, the respondent has an obligation to deal with the applicant fairly, which goes beyond simply pressing the e-mail send button. Citizenship and Immigration Canada’s protocol on e-mail communication with clients allows for the transmission of information via e-mail, but does not make mandatory safeguards to ensure the reliability of critical e-mail communications. Having applicants opt out of e-mail communication is not the solution to the risk of e-mail transmission failure. This would frustrate the protocol objective of enhanced operational efficiency and would be contrary to the statutory objective of prompt processing of visa applications as stated in paragraph 3(1)(f) of the Immigration and Refugee Protection Act. The solution lies in finding a strategy to deal with the occasional e-mail error, especially when an applicant has done everything to accommodate e-mail communication. The Warsaw visa office did not provide a safeguard against possible e-mail transmission failure, in contrast to the Damascus visa office which had both e-mailed and posted its request for documentation. The failure to communicate the request properly thus resulted in a breach of procedural fairness.
STATUTES AND REGULATIONS CITED
Federal Courts Rules, SOR/98-106, rr. 1 (as am. by SOR/2004-283, s. 2), 83.
Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 16, 72(1).
CASES CITED
applied:
Kaur v. Canada (Minister of Citizenship and Immigration), 2009 FC 935.
considered:
Abboud v. Canada (Citizenship and Immigration), 2010 FC 876; Alavi v. Canada (Citizenship and Immigration), 2010 FC 969, 92 Imm. L.R. (3d) 170.
referred to:
Yazdani v. Canada (Citizenship and Immigration), 2010 FC 885, 324 D.L.R. (4th) 552, 14 Admin. L.R. (5th) 74, 374 F.T.R. 149; Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, 329 N.B.R. (2d) 1, 291 D.L.R. (4th) 577; Rahim v. Canada (Minister of Citizenship and Immigration), 2006 FC 1252, 58 Imm. L.R. (3d) 80; Sketchley v. Canada (Attorney General), 2005 FCA 404, [2006] 3 F.C.R. 392, 263 D.L.R. (4th) 113, 44 Admin. L.R. (4th) 4; Li v. Canada (Minister of Citizenship and Immigration), 2008 FC 1284, 337 F.T.R. 100, 76 Imm. L.R. (3d) 265; Ilahi v. Canada (Minister of Citizenship and Immigration), 2006 FC 1399, 58 Imm. L.R. (3d) 52; Shah v. Canada (Minister of Citizenship and Immigration), 2007 FC 207; Yang v. Canada (Minister of Citizenship and Immigration), 2008 FC 124, 79 Admin. L.R. (4th) 195; Zhang v. Canada (Citizenship and Immigration), 2010 FC 75, 362 F.T.R. 277.
APPLICATION for judicial review of a decision by a visa officer refusing the applicant’s permanent resident visa application under the skilled worker category for failing to respond to the visa officer’s e-mail request for information. Application allowed.
APPEARANCES
Max Chaudhary for applicant.
Marina Stefanovic for respondent.
SOLICITORS OF RECORD
Chaudhary Law Office, Toronto, for applicant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for judgment and judgment rendered in English by
[1] Mandamin J.: Afshin Zare has applied, pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA), for judicial review of a visa officer’s August 27, 2009 refusal of his application for a permanent resident visa as a skilled worker. The visa officer refused the application because the applicant failed to provide certain documentation required by the visa officer’s e-mail request for information.
[2] This matter involves an application for a permanent resident visa filed by the applicant at the visa office at the Canadian Embassy in Damascus. The application file was transferred from the Damascus visa office to the visa office at the Canadian Embassy in Warsaw, Poland. The issue concerns the June 26, 2009 e-mail letter from the visa officer in Warsaw requesting further information about the applicant’s work experience as a pharmacist. The applicant did not respond but says the e-mail request was not received by his representative.
[3] The issue involves the same situation that arose in six other recent judicial review applications consolidated under Yazdani v. Canada (Citizenship and Immigration), 2010 FC 885, 324 D.L.R. (4th) 552, as well as in two other cases: Abboud v. Canada (Citizenship and Immigration), 2010 FC 876 and Alavi v. Canada (Citizenship and Immigration), 2010 FC 969, 92 Imm. L.R. (3d) 170. All involved errant e-mails sent from the visa office in Warsaw which were not received by the respective applicant’s representative.
[4] For reasons that follow, I am granting the application for judicial review.
Background
[5] The applicant, Afshin Zare, submitted an application under the economic class for a permanent resident visa in Canada to the Canadian Embassy in Damascus, Syria on February 19, 2004. The Damascus visa office was notified by facsimile that Amirsalam & Damitz (the agent) were the new representatives for the applicant. The agent provided a business address including an e-mail address.
[6] On April 25, 2008, the agent e-mailed the Damascus visa office a “Use of Representative Form” signed by the applicant which included the agent’s e-mail address. The agent advised of the applicant’s concern about updating his contact information, requested the correction of the applicant’s mailing address and phone number, and asked for acknowledgement of receipt of the message.
[7] On June 5, 2008, the Damascus visa office sent an e-mail reply to the agent advising the application was still in the preliminary stage of assessment.
[8] On September 21, 2008, by way of e-mail and mail, the visa officer in the Damascus visa office sent the agent a request for an updated application and supporting documentation. The agent submitted the updated application and documentation to the Damascus visa office on December 24, 2008.
[9] On May 26, 2009, the applicant’s file was transferred from the Damascus visa office to the visa office at the Canadian Embassy in Warsaw, Poland as part of the effort by Citizenship and Immigration Canada (CIC) to process files held up in substantial processing queues. Processing of the applicant’s file thereafter was conducted by the Warsaw visa office.
[10] On June 26, 2009, the visa officer in Warsaw noted the applicant was a self-employed pharmacist and requested more documentation concerning his work experience. The officer sent an e-mail request to the agent’s e-mail address requesting the applicant to submit evidence of his business and other related documentation.
[11] In the June 26, 2009 e-mail, the visa officer advised that the applicant’s file had been transferred to the Warsaw visa office and required the applicant submit the requested items within 60 days from the date of the e-mail letter. The officer advised if the information was not provided, a decision would be made on the basis of the documentation in hand.
[12] On sending the e-mail, the Warsaw visa office received a delivery status notification (DSN) to the effect that the June 26, 2009 e-mail was relayed to the agent’s e-mail address. The relevant portion of the DSN message states:
From: POSTMASTER (AITE)
Sent: June 26, 2009 8:34. AM
…
Subject: Delivery Status Notification (Relay)
Attachments: ATT343272.txt; FILE B046073226 NAMES: ZARE, AFSHIN
…
This is an automatically generated Delivery Status Notification.
Your message has been successfully relayed to the following recipients, but the requested delivery status notifications may not be generated by the destination.
[13] Neither the applicant nor his agent responded.
[14] Since there was no response to the June 26, 2009 e-mail request, the visa officer assessed the application on the basis of the information on file. On August 27, 2009, in part because of the failure to provide the requested documentation concerning the applicant’s work experience, the visa officer refused the application for a permanent resident visa. The visa officer sent the refusal letter by post to the agent explaining the negative assessment.
[15] On September 23, 2009, the agent sent an e-mail to the Damascus visa office requesting an update on the status of the applicant’s application. Six days later, on September 29, 2009, the agent received the visa officer’s posted refusal letter. The agent says this was the first time he learned the applicant’s file had been transferred to the visa office in the Canadian Embassy in Warsaw, Poland.
[16] The agent declares he never received the June 26, 2009 e-mail request. The agent requested the visa officer reconsider but reports that the officer refused, insisting the June 26, 2009 e-mail was received by the agent.
Decision Under Review
[17] The visa officer’s refusal letter, dated August 27, 2009, states in part:
Moreover, you were requested to provide additional evidence of your work experience as a self-employed person by correspondence of 26 June 2009, within a sixty day period, however, no response was received from you. Given your failure to provide the information requested by letter of 21 September 2008 and by correspondence of 26 June 2009 I am not satisfied that you meet the second or third part of the requirements mentioned above for your stated occupation of a Pharmacist (NOC 3131) because the information provided does not satisfy me that you meet the minimum requirements of section 75 of the Regulations in this occupation.
…
Following an examination of your application, I am not satisfied that you meet the requirements of the Act and the regulation for the reasons explained above. I am therefore refusing you application.
[18] It is clear the visa officer considered the applicant’s failure to provide the information requested in the June 26, 2009 e-mail request a significant factor in the refusal decision.
Standard of Review
[19] The Supreme Court of Canada, in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, has said that a reviewing court need not conduct a standard of review analysis in every case and may look to whether the standard of review has been previously determined.
[20] The question of whether a visa officer has provided an applicant with a meaningful opportunity to respond to the visa officer’s concerns is a question of procedural fairness: Rahim v. Canada (Minister of Citizenship and Immigration), 2006 FC 1252, 58 Imm. L.R. (3d) 80, at paragraph 12.
[21] Questions of procedural fairness are assessed on a correctness standard: Sketchley v. Canada (Attorney General), 2005 FCA 404, [2006] 3 F.C.R. 392; Li v. Canada (Minister of Citizenship and Immigration), 2008 FC 1284, 337 F.T.R. 100.
Legislation
[22] The relevant provision of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) is:
| Obligation — answer truthfully |
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. |
Issue
[23] I consider the issue in this case to be:
Was the applicant denied procedural fairness by the e-mail transmission of the request to provide additional information?
Analysis
[24] From the reasons that follow, I find that the June 26, 2009 Warsaw e-mail by the visa officer in Warsaw was not received by the agent.
[25] The applicant’s agent has declared by affidavit that he did not receive the June 26, 2009 e-mail. He introduced expert evidence in support of his application.
[26] Ray Xiangyang Wang is a computer professional with 10 years of university study in the field 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 e-mail communications.
[27] Mr. Wang stated that e-mail 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”.
[28] The respondent provided an affidavit by the visa officer who deposed that the CIC implemented a protocol on e-mail communication with clients and that they (presumably the Warsaw visa office) have been using e-mail to correspond with clients since 2006. E-mail is the preferred communication method when an e-mail address is provided by clients because it is timely and cost effective. The visa officer deposes that upon sending an e-mail the visa office requests delivery notice; that is a delivery status notification (DSN).
[29] The officer deposes she is advised by IT personnel and verily believes the information and opinions provided to be true. She then repeats some of the IT information provided stating:
I am advised by our IT personnel and verily believe that if our e-mail message is not delivered, we usually receive an e-mail message stating that the correspondence was not delivered.…
I am informed by our IT personnel and verily believe that the delivery status notification means the e-mail was received by the applicant’s server for delivery to the e-mail address canimmig@direct.com.
[30] In an application such as this, an affiant must be available for examination on affidavit as provided in rule 83 of the Federal Courts Rules [SOR/98-106, r. 1 (as am. by SOR/2004-283, s. 2)] which requires any affiant be available for cross-examination. The person who is the source of the expert opinion, the IT specialist, should be available for cross-examination on the affidavit but, here, the source of that expert opinion is not available for examination. This indirect means of introducing expert opinion evidence by way of information and belief in an affidavit is impermissible since there is no way to determine what knowledge the expert possesses or test the facts upon which the expert opinion is based.
[31] In result, the expert opinion of Mr. Wang is unchallenged. His evidence is that e-mail messages may be lost without delivery to the recipient or notification of the failure back to the sender.
[32] In addition, one may have regard to the language of the DSN message. The respondent’s reliance on the DSN message as proof of delivery is not supported by the language of the DSN message itself. It is clear from the wording of the June 26, 2009 DSN response received back did not mean that the message had been received by the agent. The DSN message refers to a relay of the e-mail, not its receipt. The DSN message cannot be taken, without more, as evidence of delivery of the e-mail to the recipient’s e-mail address.
[33] I am persuaded on the balance of probabilities that the agent did not receive the June 26, 2009 e-mail request for the following reasons:
a. the agent previously successfully corresponded with the Damascus visa office by e-mail;
b. the agent conveyed the applicant’s concern about maintaining updated contact information to the Damascus visa office;
c. the agent responded to the Damascus visa office’s September 26, 2008 e-mail and posted request for an updated application and documents;
d. the agent was awaiting further information about the application as demonstrated by his e-mail enquiry to the Damascus visa office on September 23, 2009, asking about the status of the applicant’s application (this request was sent prior to receiving the Warsaw visa officer’s posted refusal letter on September 29, 2009);
e. the agent declares by affidavit that he never received the June 26, 2009 e-mail and he was not challenged by any cross-examination affidavit;
f. the wording of the DSN message, at best, shows the e-mail as relayed but does not confirm the e-mail message was received; and
g. the applicant’s expert opined that e-mail messages may be lost because of software bugs and system failures without notification of the failure back to the sender.
[34] I am satisfied the agent’s e-mail was working properly and the agent was properly attending to the business of the applicant’s application for a permanent resident visa. I conclude the agent, and therefore the applicant, did not receive the June 26, 2009 e-mail and therefore was not given notice of the requirement to provide further information.
[35] A visa officer’s request for additional information is an important step in the visa application process. Subsection 16(1) of IRPA provides that “[a] person who makes an application … must produce … all relevant evidence and documents that the officer reasonably requires.” Failure to respond renders an applicant non-compliant with the legislation.
[36] The jurisprudence on e-mail follows jurisprudence established for mail and telephone facsimile transmissions. An applicant has the burden of ensuring his or her application is complete and, where an applicant provides an address, post, facsimile or e-mail, the risk of non-delivery rests with the applicant provided there is no indication that the communication may have failed: Ilahi v. Canada (Minister of Citizenship and Immigration), 2006 FC 1399, 58 Imm. L.R. (3d) 52; Shah v. Canada (Minister of Citizenship and Immigration), 2007 FC 207; Yang v. Canada (Minister of Citizenship and Immigration), 2008 FC 124, 79 Admin. L.R. (4th) 195; Kaur v. Canada (Minister of Citizenship and Immigration), 2009 FC 935; and Zhang v. Canada (Citizenship and Immigration), 2010 FC 75, 362 F.T.R. 277.
[37] In the above cases, the issue turns on a finding of fault by one of the parties. Where the visa officer could not prove that he had sent the notice, the respondent is to bear the risk for missed communications: Ilahi. Where the visa officer had proved that he had sent the notice, but the communication was missed due to an error on the part of the applicant (such as discontinuance of an e-mail address or blocking by spam filter), the applicant is to bear the risk: Kaur.
[38] Kaur involved e-mail communications. In that case Justice Barnes set out a qualification in respect of the applicant’s burden. He stated, at paragraph 12:
In summary, when a communication is correctly sent by a visa officer to an address (e-mail or 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.]
In the case at hand, there is evidence the crucial June 26, 2009 e-mail communication failed.
[39] In arguing that it should not bear the risk for a failed e-mail communication, the respondent submits that the duty of procedural fairness is limited in cases of applications for permanent resident visas made from outside Canada stating that section 16 of IRPA requires that a person seeking an entry visa must provide all relevant documents the visa officer reasonably requires. However, that is based on the premise that the applicant was actually provided with the officer’s request.
[40] The visa officer may have sent the e-mail but I have held the evidence does not establish it reached the applicant. Although I am satisfied that the visa officer has acted in good faith in sending the request by e-mail, the respondent has an obligation to deal with the applicant fairly which goes beyond simply pressing the e-mail send button.
[41] The respondent says that in considering the procedural fairness practices, one must consider the sheer volume of visa applications handled by visa offices as noted by Justice Barnes in Zhang. The respondent states any risk could be mitigated by an applicant or his or her representative not choosing e-mail as a means of communication.
[42] In Abboud, issued after the respondent’s submissions, Justice Tremblay-Lamer decided, on the evidence before her, that she was not satisfied the request for additional information had been sent. She accepted that the DSN message did not prove the e-mail request had been received by the intended recipient and went on to grant the application for judicial review because of a breach of procedural fairness.
[43] The respondent sought to distinguish that case by submitting that the expert evidence in Abboud was to the effect that the e-mail message had not been received at the destination while here the applicant only claims that the DSN message was not a sure way to ensure that the e-mail has been received. The respondent submits the visa officer correctly understood that the DSN message was a sign the message had been properly sent. The respondent goes on to say this is no different from regular posted mail as opposed to registered mail and states the accepted jurisprudence is to the effect that the risk of non-receipt of correspondence via the mode of communication rests with the applicant, and there is no onus on the respondent to ensure the actual receipt of correspondence.
[44] The distinction the respondent seeks to make with respect to the evidence about the significance of the DSN message does not stand in view of the evidence. Here, the agent has attested that he did not receive the June 26, 2009 e-mail request and the expert witness, Mr. Wang, has stated e-mail messages may not be delivered due to software bugs or system failures. The DSN message itself only speaks to relay of messages, not to receipt of the e-mail. Finally, the respondent’s affiant, the visa officer, is not qualified to offer expert opinion that a DSN confirms successful relay to the recipient’s server. The short answer to the respondent’s submission is that there is evidence before me that I accepted that the e-mail message was not received by the agent.
[45] In Alavi, Justice Hughes, having the benefit of the foregoing decisions stated [at paragraph 5]:
The principle to be derived from these cases, all dealing with communications from the Embassy processing the application to the applicant or applicant’s representative, is that the so-called “risk” involved in a failure of communication is to be borne by the Minister if it cannot be proved that the communication in question was sent by the Minister’s officials. However, once the Minister proves that the communication was sent, the applicant bears the risk involved in a failure to receive the communication.
[46] Justice Hughes went on to say [at paragraph 7]:
A document purporting to be a Delivery Status Notification of an e-mail as found on the files is not, in itself, evidence of delivery, it is only evidence that such a document exists on the file. Where the matter is contentious, as it is here, proper evidence by way of an affidavit of a person familiar with the matter, is needed to prove the facts.
[47] He went further and found on the evidence [at paragraph 11]: “Given the positive sworn evidence submitted on behalf of the Applicant and lack of any evidence from the Respondent I can only conclude that the communication of June 29, 2009 was never received by Mr. Green and that there is no evidence that it was ever sent.”
[48] I would think that part of the debate in these matters arises because of the meaning ascribed to the word “sent”. I would suggest the meaning in this context would be to convey a message to the intended recipient with the reasonable expectation that the message will arrive at its destination. To draw from the respondent’s earlier analogy, when a letter is mailed, there is a reasonable expectation the letter will be delivered. But if the local post office burns down, then the expectation of delivery will not be realized. When a visa officer sends an e-mail to an applicant who has provided an e-mail address, there is a presumption that the e-mail message has been conveyed to the intended recipient. However when the applicant proves with credible evidence that the e-mail was not received, the presumption is displaced and more is required to establish the e-mail request has been communicated or properly sent.
[49] Section 16 of IRPA contemplates a visa officer’s request is made to an applicant. An e-mail request that goes astray is not a request made to an applicant as contemplated by section 16. One might say, as I do, it was not properly sent.
[50] In addition there is another consideration arising on the decision to use e-mail communications in the processing of immigration applications by CIC.
[51] The statutory objectives of IRPA specifically paragraph 3(1)(f) state:
| Objectives — immigration |
3. (1) … (f) to support, by means of consistent standards and prompt processing, the attainment of immigration goals established by the Government of Canada in consultation with the provinces; |
[52] CIC has a protocol on e-mail communication with clients. The protocol’s objectives are in accord with the statutory objectives of IRPA. It provides:
The intent of this protocol is to create an implementation framework for email communications with clients that will not put personal privacy of CIC clients or staff at risk nor burden CIC resources unnecessarily….
… this Protocol on email Communications with Clients also seeks to improve client service in such potential ways as:
• Increased rates of response to client inquiries;
• Shortened enquiry response time frames;
• Enhanced operational efficiency.
The CIC protocol recognizes that e-mail communications with clients is a benefit to the respondent as well as applicants in increasing response rates, shortening response times, and promoting operational efficiency.
[53] The CIC e-mail protocol also provides:
• The protocol is for e-mail communications between the CIC and its individual clients or their authorized representatives only.
• CIC offices may communicate by e-mail on consent by the client who does so by providing an e-mail address.
• CIC offices must be equipped to receive e-mail inquiries via e-mail.
• Web sites providing for e-mail query must include disclaimers that caution e-mail is not a secure channel, that CIC is not liable for unauthorized disclosure of personal information or its misuse by a third party.
• Offices opening an e-mail communications channel must provide clear instructions to clients on what e-mail address to use and what mandatory information to include.
• To minimize failure of e-mail delivery, CIC Web sites should counsel clients to include the local CIC e-mail address in their e-mail address list (to avoid blockers, firewalls, attachment stripping, etc.) that may impede or prevent delivery of a CIC e-mail message (an optional requirement).
The CIC protocol expressly allows for transmission of client- and case-specific information including requests for information via e-mail. However, while the CIC protocol provides that visa offices must ensure safeguards are in place for privacy matters, it does not make mandatory safeguards to ensure reliability of e-mail transmissions for critical communications, namely, statutorily mandated IRPA requests for information.
[54] I do not accept the respondent’s submission that the solution for e-mail transmission failure risk is for applicants and their representatives to opt out of e-mail communication. In my view, applicants turning away from e-mail usage would frustrate the CIC protocol objective of enhanced operational efficiency and would be contrary to the IRPA statutory objective of prompt processing of applications for visas.
[55] As I said in Yazdani, the solution therefore does not seem to lie in cautioning or discouraging applicants from using e-mail, but in finding a strategy to deal with the occasional e-mail error, especially when an applicant has done everything on his or her end to accommodate e-mail communication.
[56] E-mail communication in visa applications will likely increase in the future. The technology, both hardware and software, supporting e-mail will change and it will improve at different rates in different countries. Unexplained errors in e-mail transmission, as has happened in these cases, will no doubt occur in the future. Given the fact that e-mail communication may occasionally fail outright, it seems to me that the respondent needs to take care in sending important communications by e-mail in the visa application process and have a process in place for reconsideration if it appears an e-mail transmission failure has occurred.
[57] In the case at hand, the respondent chose to transfer the applicant’s file from the Damascus visa office to the visa office in Warsaw for processing. There had been no history of prior successful e-mail communications between the Warsaw visa office and the agent’s office. I especially note the Warsaw visa office did not provide a safeguard against possible e-mail transmission failure. This is in contrast to the Damascus visa office which had earlier both e-mailed and posted its request for an updated application and documentation.
[58] Further, there are now eight reported cases, nine counting this case, of failed e-mail communications all originating from the Warsaw visa office. The failed e-mail messages all concerned files transferred from the Damascus visa office and were all sent during much the same time period. The number of instances of e-mail transmission failure is moving beyond coincidence. Given that I am satisfied that the visa officer has acted in good faith, the inference that arises is that there was a system failure in the CIC e-mail communications system out of Warsaw.
[59] One has to ask, how many other such cases are out there? I should think to continue insisting no problem exists with e-mails from the visa office in question in a multiplicity of identical applications coming before the Court on the issue is to unnecessarily burden limited Court resources with an issue to which an answer has already been given.
[60] Having regard for the foregoing, I conclude the respondent has not established it properly sent the e-mail request to the applicant’s agent. The failure to communicate the request properly resulted in a breach of procedural fairness when the visa officer rejected the application for a permanent resident visa because the applicant had not responded to the awry e-mail.
Conclusion
[61] On the evidence in this case, I allow the judicial review.
[62] The application for a permanent resident visa is to be remitted back to a different visa officer for reassessment once the applicant has the opportunity to submit the documents requested in the June 26, 2009 e-mail request as well as any other information updating his application having regard to the passage of time.
[63] The respondent submits a proposed question of general importance for me to certify as follows:
Where the officer properly sends correspondence to an applicant requesting further information, and the applicant claims not to have received the correspondence, which party bears the risk of non-receipt?
[64] This proposed question is not in accord with the facts I have found in this application. In addition, it generalizes and does not address the critical issue, the use of e-mails to send statutorily mandated requests for information where non-response has significant adverse consequences for an applicant. Finally, the respondent has not submitted proper expert evidence addressing the question of the reliability of e-mail communications. In light of these shortcomings, I do not see the proposed question as suitable for certification and I do not certify it.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that:
1. I grant the application for judicial review.
2. The application for a permanent resident visa is to be remitted back to a different visa officer for reassessment once the applicant has the opportunity to submit the documents requested in the June 26, 2009 e-mail and to update his application as may be necessary.
3. I do not state a question of general importance for certification.
4. I make no order for costs.