Those who are filling out their immigration applications on their own should be aware of an important decision recently released by the Federal Court.
In December, 2007, Li Feng Mei applied for permanent residence in Canada on the basis of his work experience as a cook in a Chinese restaurant in Manitoba.
A few months after receiving the application, officials with Citizenship and Immigration Canada showed up at the restaurant to ask some questions of the applicant, as well as the head chef. The officers were suspicious of the claimed experience when they discovered some contradictions in the answers they were given.
On July 14, 2008 immigration officials wrote to Mei informing him of their concerns and asking him to provide verifiable proof of his employment, giving him 30 days to respond.
The applicant received the letter on Aug. 1, and sent a letter in reply on Aug. 10 via regular mail.
Three months passed. In January, the visa post sent Mei a letter to inform him it had not received a reply and, accordingly, was refusing his application. To make matters worse, CIC declared him to be inadmissible to Canada for two years for directly or indirectly misrepresenting or withholding material facts about his qualifications as an immigrant to Canada.
Mei cried foul, insisting he did send a response and that it would have answered the concerns raised. He then applied to the Federal Court for a judicial review of the decision.
The immigration department did not challenge Mei’s assertion that he sent the letter. However, it denied receiving it and was thus entitled to make a decision after the expiry of the time given to the applicant to respond, arguing Mei never contacted the visa post to ensure it had received his response. Furthermore, the visa post didn’t refuse his case immediately after the deadline passed. Accordingly, Mei had a full three months or so to ensure that the consulate had received his letter.
In October, Mr. Justice de Montigny ruled that, although Mei was entitled to send his response by regular mail, this did not detract from his obligation to satisfy immigration officials that he complied with all requirements of our immigration laws.
In other words, Mei bore the burden of providing proof of his qualifications. If the proof didn’t reach the visa officer, that was his tough luck.
Mei’s lawyer argued “it is practically impossible for an applicant to verify if a letter sent has been received by the visa post or visa officer, and that forcing an applicant to follow up on communications sent would add a further step to an already complicated process.”
The judge didn’t buy it, and even denied Mei the opportunity to appeal the decision.
My suggestion?
If it’s worth sending, its worth sending by courier!
– Guidy Mamann practices law in Toronto at Mamann, Sandaluk and is certified by the Law Society of Upper Canada as an immigration specialist. Reach him confidentially at 416-862-0000 or at metro@migrationlaw.com.
