Wu v. Canada (Citizenship and Immigration), 2018 FC 554 : Court Addresses Self-Employed PR Refusal After Applicant Missed an Interview She Said Was Never Received

The Federal Court reviewed the refusal of Yintao Wu’s permanent residence application under the self-employed person’s class after she failed to attend a scheduled interview. Ms. Wu argued that refusing her application was procedurally unfair because neither she nor her immigration consultant received the interview request. The Court found that IRCC had established that the email was correctly sent to the authorized representative’s address and that Ms. Wu failed to provide credible evidence rebutting the resulting presumption of receipt.

Key Principle

When IRCC establishes on a balance of probabilities that an email or other communication was correctly sent to the contact information provided by an applicant or authorized representative, receipt is presumed. The applicant may rebut that presumption with credible evidence showing that the communication was not received. A bare assertion of non-receipt, without evidence of an unreliable, inactive, or malfunctioning email account or other circumstances indicating delivery failure, is insufficient.

Background

Ms. Wu, a Chinese citizen, applied for permanent residence in May 2015 as a self-employed person. She was represented by a licensed immigration consultant in Quebec.

On July 25, 2017, an officer at the Canadian Consulate General in Hong Kong emailed the address identified in Ms. Wu’s permanent residence application and Use of a Representative form, requesting that she and her spouse attend an interview on August 21.

They did not attend. On August 29, the officer assessed the application on the existing record and concluded that Ms. Wu did not qualify under the self-employed persons class. Her consultant subsequently advised the visa office that the interview request had never been received and requested reconsideration.

Court Findings

• IRCC Proved the Interview Email Was Properly Sent

The Certified Tribunal Record contained a copy of the July 25 email and interview request. GCMS notes also recorded that the communication was sent to the same email address authorized by Ms. Wu. Further GCMS entries confirmed that IRCC’s system showed the email had been sent and that there was no bounce-back or undeliverable message.

• Applicant Did Not Rebut the Presumption of Receipt

Once IRCC established proper transmission, Ms. Wu had to provide credible evidence showing non-receipt. The Court found her statement that the email was not received insufficient. There was no evidence from her consultant showing that the email account was inactive, unreliable, malfunctioning, or otherwise unable to receive the message.

• No Warning Signs Suggested the Communication Had Failed

The Court distinguished cases where subsequent automated responses or applicant inquiries should have alerted officers that earlier communications might not have arrived. Nothing similar existed here. The same email address was later successfully used by the consultant to request reconsideration. The Court therefore concluded that Ms. Wu had to bear the consequences of the failed communication.

Outcome

The Federal Court dismissed the application for judicial review. IRCC had demonstrated proper transmission on a balance of probabilities, and Ms. Wu had not rebutted the presumption that the interview request was received. No question of general importance was certified.

Case Citation:

Wu v. Canada (Citizenship and Immigration), 2018 FC 554 (CanLII)