Asoyan v. Canada (Citizenship and Immigration), 2015 FC 206 : Permanent Residence Refusal Overturned After Applicant Never Received IRCC’s Email Request for Documents

The Federal Court reviewed the refusal of a permanent residence application after the applicant failed to provide documents requested by email.

The applicant maintained that she never received the email containing the document request. Importantly, during the period in which IRCC expected a response, she had contacted IRCC because she had not even received an earlier acknowledgment confirming receipt of her application.

The Court found that this should have alerted IRCC to a possible communication problem. Refusing the application without taking reasonable steps to confirm that the document request had actually reached the applicant was procedurally unfair.

Key Principle

An applicant normally has a responsibility to monitor the contact information provided to IRCC and respond to requests.

However, where IRCC has information suggesting that its emails may not be reaching the applicant, it cannot simply assume delivery and penalize the applicant for failing to respond.

In those circumstances, the risk of failed communication may shift back to IRCC, requiring reasonable steps to confirm or repeat the communication before refusing the application.

Background

The applicant, a citizen of Armenia, applied for permanent residence in November 2012 and provided a valid Yahoo email address for immigration correspondence.

According to GCMS notes, IRCC emailed her in February 2013 requesting updated application forms and a Schedule A Background/Declaration within 30 days.

The applicant said she never received that email.

During the same 30-day period, she contacted IRCC because she had also not received the acknowledgment of receipt for her permanent residence application. IRCC then forwarded her the earlier acknowledgment that had supposedly already been sent.

Several months later, her permanent residence application was refused because she had not submitted the documents requested in the February email.

Court Findings

The Court focused on the fact that IRCC had received a clear warning that its email communications were not reaching the applicant.

The applicant had contacted IRCC specifically because she had not received her acknowledgment of receipt. That inquiry occurred while the deadline for responding to the missing document request was still running.

The Court found that this circumstance should have alerted IRCC that the February document request might also not have been received.

Once IRCC had such an indication, it was unfair to simply rely on the absence of a “bounce-back” notification and assume that the applicant had received the request.

The Court also discussed the inherent unreliability of email communication. Unlike a successful fax transmission, an email being sent does not necessarily establish that it was delivered to or read by the intended recipient.

The Court suggested that, for important immigration communications, IRCC should make reasonable use of available safeguards such as delivery or read-receipt mechanisms. Where no acknowledgment is received, sending the message again may be an appropriate minimum safeguard.

The decision therefore does not mean that every applicant can overcome a refusal simply by saying that an email was not received.

The important fact in this case was that IRCC already had objective information suggesting that its communications to this applicant were failing.

Outcome

The Federal Court allowed the application for judicial review and set aside the refusal of the permanent residence application.

Case Citation:

Asoyan v. Canada (Citizenship and Immigration), 2015 FC 206 CanLII