Missed connections with Ottawa - Metro US

Missed connections with Ottawa

In the real world, when someone does not receive a response to an important email the fix is usually a simple matter…try again.

When our immigration department doesn’t receive a response to an email, it can and will summarily refuse an application even though the applicant may not have received the transmission in question.

This unforgiving approach to the rights of those who have paid good money, and waited patiently, to have their applications processed has created an avalanche of unnecessary and expensive litigation.

Canada’s Federal Court recently heard the case of Afshin Zare, a pharmacist, who in February 2004 applied for permanent residence under our Federal Skilled Workers program at the Canadian embassy in Damascus. Having heard nothing for four years, his legal counsel sent an email to Damascus asking for an update. A response and, later, a request for information was received by email which the applicant promptly attended to.

In May 2009, Zare’s application, amongst others, was transferred to our embassy in Warsaw for final processing. In June 2009, Warsaw sent Zare an email asking for more information. Even though Zare had been waiting for five and a half years for an answer to his application, on Aug. 27, 2009, Warsaw refused his application because it didn’t receive a response to its email. The embassy did so without even checking with Zare to see if he had received its email and without asking why he had not replied to it.

In fact, Zare never received the email. When he learned of the refusal, he appealed.

Citizenship and Immigration Canada informed Canada’s Federal Court that when its officers send an email they automatically receive a Delivery Status Notification confirming delivery. However, Zare hired an expert in computer science armed with a Ph.D and 17 years of experience in computer sciences who provided an expert opinion that such a notice may prove delivery but not necessarily receipt of the email. The court ruled that it was “beyond coincidence” it had received nine appeals from applicants who all claimed not to have received emails from our embassy in Warsaw.

In October 2010, almost seven years after Zare submitted his application, the Federal Court set aside the refusal and ordered CIC to reassess the application.

As a consequence of this and other court cases, CIC issued an Operational Bulletin on Jan. 21 setting out its “Interim Procedures for Email Communications with Clients.”

This bulletin makes it clear that CIC may communicate with applicants by email if the applicant included an email address in their application, if the applicant’s representative supplied an email address in his/her Use of Representative Form, or if the applicant initiates an email communication with CIC.

Accordingly, it’s important for applicants to monitor their email accounts regularly, advise of any changes in email addresses, white list CIC’s domain on their spam software, and make sure their representative does the same.

The bulletin authorizes visa officers to consider all circumstances of the case where an applicant seeks re-consideration of refusal on the grounds of non-receipt of an emailed request for information.

Interestingly, nowhere in this three-page bulletin does it require officers to attempt to contact the client again using the same or other means of communication to ensure receipt of the contents of the initial email.

I strongly advise those seeking a reconsideration of a refusal from a visa post in similar circumstances not to allow their appeal rights to lapse while they are awaiting a response from CIC.

Applicants can seek a judicial review in the Federal Court within 15 days after the day on which they became notified, or otherwise became aware of the refusal with respect to a decision made in Canada, and within 60 days, if the refusal was made outside the country.

This right of appeal may be the only way to ensure an assessment of the application under the criteria that existed at the time the application was originally filed and which may no longer apply.

Guidy Mamann, J.D. practices law in Toronto at Mamann, Frankel Sandaluk LLP and is certified by the Law Society of Upper Canada as an immigration specialist. For more information, visit www.migrationlaw.com or email metro@migrationlaw.com

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