Ottawa, Ontario, March 6, 2007
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] Mr. Courtney applied for a humanitarian and compassionate exemption (H&C) in respect of permanent residence. He had filed material in accordance with the instructions of the Respondent but the material was not received and therefore not considered. His H&C was denied. The principal issue in this judicial review is what are the consequences of this failure to receive and consider the materials sent by the Applicant.
II. BACKGROUND
[2] The Applicant had received a letter from the Respondent dated January 17, 2006 in respect of his H&C application. The salient parts of which are:
Please send the requested information/documents to this office within thirty (30) days of the date of this letter. If you do not, the decision about exemption will be made based upon the information on your file. If you do not reply within 30 days and the decision is to refuse your request for an exemption, there is no authority to re-examine or re-open this decision. If you wished any new information to be considered, you would have to submit a new application, including new fees.
…
Please do not forward your submissions By Fax [sic]. Send them by regular mail.
[3] The Applicant’s evidence is that he did exactly what he was instructed to do.
[4] It is apparent from the Certified Tribunal Record that this information was never received. The Applicant contends that he was denied natural justice in the manner in which his application was dealt.
[5] Unfortunately, a copy of the information sent was not available. The Respondent questions whether the information was sent and whether it would have made any difference to the eventual outcome of the H&C application.
III. ANALYSIS
[6] It is troubling that this information was not available or that some attempt to recreate it was not made. However, the Applicant’s evidence is that it was the information requested in the January 17, 2006 letter. His evidence went unchallenged. The Court has no basis upon which to disbelieve Mr. Courtney’s evidence on this point. The Respondent cannot adequately challenge his credibility having waived its opportunity to cross-examine.
[7] As to the relevance of the information, the Respondent, having invited its filing, cannot now claim that the information could not possibly make any difference to the ultimate decision. This is far too speculative a contention upon which to deny the H&C application. It is also known that it was the H&C form which, if of no importance, should not be required in any event. Therefore, I conclude that this information was relevant and could have had some impact on the H&C decision.
[8] As to the Respondent’s suggestion that there is inadequate evidence that the information was sent, the submission ignores the failure to challenge Mr. Courtney’s evidence.
[9] That evidence included not only the Applicant’s sworn testimony but a letter from his immigration consultant somewhat corroboratory of his evidence. The consultant, in her letter, does not say that she saw the Applicant mail the information but she does say that on January 28, 2006, in Mr. Courtney’s presence, she prepared the H&C form; that Mr. Courtney left with the forms, promising to mail them; and that on February 2, 2006 he phoned her to tell her that he had mailed the H&C application form.
[10] Therefore, on the balance of probabilities, one must conclude that the forms were sent on February 2, 2006. What happened to them – whether lost in the mail or at the Respondent’s facilities - is unknown.
[11] It would be a travesty to hold the Applicant responsible for the failure of receipt when it was the Respondent who chose the method of delivery. It would have been so simple to offer the public the option of using registered mail, fax, or in today’s world, possibly on-line filing.
[12] Justice Mactavish has canvassed the issue of lost documents in her decisions Hussain v. Canada (Minister of Citizenship and Immigration), 2004 FC 259 and Pramauntanyath v. Canada (Minister of Citizenship and Immigration), 2004 FC 174. The principles upon which this type of matter is resolved is whether there is sufficient proof that the materials were sent, whether the materials were potentially relevant and whether an applicant bore some responsibility for non-receipt.
[13] The fact that, unlike in Justice Mactavish’s case, the Court did not have before it copies of the materials lost, is not fatal to the Applicant’s case. There was sufficient evidence as to what was sent to satisfy the burden on the Applicant.
[14] While the denial of natural justice was not directly caused by the Respondent, it arose from following the Respondent’s instructions. As between the two “innocent” parties, the loss or the responsibility must, in fairness, fall on the person who directed the method of transmission.
IV. CONCLUSION
[15] Therefore, this application for judicial review will be granted. The decision is quashed and the Applicant may refile his H&C application without the requirement to pay filing fees (if any). The application should be decided on a fresh record by a different officer.
[16] There is no question for certification.
JUDGMENT
IT IS ORDERED THAT this application for judicial review is granted. The decision is quashed and the Applicant may refile his H&C application without the requirement to pay filing fees (if any). The application should be decided on a fresh record by a different officer.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1879-06
STYLE OF CAUSE: DENNIS COURTNEY
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: February 27, 2007
APPEARANCES:
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Mr. Courtney E. Betty
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Ms. Rhonda Marquis
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SOLICITORS OF RECORD:
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MR. COURTNEY E. BETTY Barrister & Solicitor Toronto, Ontario
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MR. JOHN H. SIMS, Q.C. Deputy Attorney General of Canada Toronto, Ontario |