Pace Immigration Lawyer Karen Kwan Anderson: In July 2015, our client, Mr. D.C. Patel made Canadian immigration legal history with a precedent-setting case which has now helped change the way the system works. Mr. Patel’s case summarizes the Federal Court decision on email communication from immigration officers to applicants. The Toronto Star:
Call it the case of the vanishing email.
Canada’s federal court has awarded a prospective immigrant from India $3,000 — and a second shot at coming here — over “a failed email communication” on the part of Immigration Canada.
In granting the appeal in the man’s favour, the court ruled that the responsibility of ensuring the delivery and receipt of immigration correspondence falls squarely on the sender and recipient, and laid out the conditions whereby one party should be held for the lost email.
With Citizenship and Immigration Canada moving toward paperless online applications, an increasing number of cases seem to be cropping up in which lost communication led to applicants being rejected (though no statistics are available).
New Canadian Immigration Guidelines
As a of this decision, Operational Bulletin (OB) 265-A was released on January 8, 2016. It dictates guidelines for immigration officers on email communications with applicants, including:
- keeping proof of having sent an email to applicants
- protocols for transferring files
- how to handle requests for reconsideration of a case due to alleged noncompliance with a request for information
Critically, immigration officers have discretion to reconsider and reopen an application if an applicant provides reasonable evidence that no email was received from the officer.
While I applaud these instructions and am cautiously optimistic on improved delivery of immigration services where email communications are concerned, I have the following questions on turning theory into practice:
1. How can we be assured that officers within Canada and scattered worldwide will input correct email addresses? For example, one email our team received was addressed to a dot firm instead of a dot com. As a, we did not receive medical instructions for our client.
2. How can officers check that an applicant or their representative has provided the most up-to-date email address? Would officers call the applicant and/or representative to ensure a correct email is on file?
4. How would service be impacted if an applicant and/or representative chooses to not use email for correspondence?
5. The protocol on reconsideration is found in an immigration officer’s manual on inland spousal sponsorship applications. When would the Government of Canada include the same protocol for overseas processing of applications?
6.Would Canadian immigration officers give a decision on a reconsideration request in a timely manner? Is there an obligation upon an officer to give a response at all? There should be a mandatory administrative procedure for an officer and applicant to follow in order to resolve disputes to avoid litigation.
Inland vs. Visa Office Refusals
When an inland application is refused, an applicant has 15 calendar days from the date of receiving the refusal to apply to the Federal Court to challenge the refusal. When an application is refused by a visa office (meaning an office outside of Canada, including Ottawa, which is considered a visa office), the applicant has 60 calendar days from the date of receipt of the refusal in which to apply to the court.
I suggest applicants file a notice to the court as soon as possible to preserve the limitation period; otherwise an applicant would lose the chance to challenge a refusal while awaiting a decision on a reconsideration request.
As we move forward with OB 265-A and other changes to Canadian immigration processing, my hope is that our new government will make other meaningful decisions that will positively affect the lives of our clients and their families.