Came across this new on Toronto Star. Looks very interesting and hope no one is a victim again.
[size=10pt]Would-be immigrant from India awarded $3,000 over a lost email[/size]
D.C. Patel’s application was rejected because he didn’t respond to an email he never got — and Ottawa can’t prove ever existed.
By: Nicholas Keung Immigration reporter, Published on Sun Aug 16 2015
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 accountable 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).
In the Indian man’s case, the court found there had been “a breach of procedural fairness” in turning him down because he hadn’t responded to an email he never received.
“The judge just asked both parties, ‘Where’s the email?’ And there was nothing,” said lawyer Karen Kwan Anderson, who asked the court to review the rejection of her client’s application under the skilled workers program.
“Email could be efficient and fast in sending information, but there’s the black hole of email where it just disappeared. Over-reliance on technology can be dangerous.”
The first court cases centred on lost emails came at least as early as 2010, said Anderson, who has encountered situations in her own practice where she and her clients “didn’t receive email requests for further information, or received email (intended) for someone else.”
The applicant in this case, Dharmendrakumar Chandrakantbhai Patel, applied for immigration to Canada in June 2010 as a computer and information systems manager.
In February 2014, immigration officials refused his application on the grounds that he “had not supplied any of the documents allegedly requested on August 20, 2013.”
Rakesh Goel, a program assistant at the High Commission of Canada in New Delhi, claimed to have sent the emailed request for updated application forms and police clearances on that day, and to have given the applicant 45 days to respond.
However, Patel, who declined to be interviewed for this story, said neither he nor his lawyer ever received the email. Justice M. Boswell requested to see the email, but the immigration department was unable to produce a copy of it in the government’s “certified tribunal record” (CTR).
Anderson said her office had inquired about the status of the client’s application in October, after the said email was sent, but no outstanding issues were revealed by immigration officials.
Her subsequent request to the visa post to reopen the case and reconsider the application was denied.
“The respondent has not even supplied a copy of the alleged email, and Mr. Goel’s affidavit does not include a printout of his sent box which could confirm that any email was sent to the correct address,” Boswell wrote in the judgment issued in July.
“The respondent cannot simply rely on electronic notes to prove that a document has been sent to the correct address. Since the respondent has not proven that the email was sent, it is a breach of procedural fairness.”
The immigration department said it uses contact info provided by applicants at their preference and does not use the confirmation of receipt.
“It would double the volume of messages received and the resources required to manage emails. However, our email system does notify officers of email addresses for which the delivery of emails has failed,” said department spokesperson Nancy Chan.
“In those instances, officers try to contact applicants by other means, such as telephone and regular mail. It is the applicant’s responsibility to keep their contact information up-to-date, including their email address, if provided.”
In ordering Ottawa to reopen Patel’s case and awarding the man the unprecedented $3,000 in costs, the judge said the responsibility of a failed communication shifts to the immigration applicant only if officials can show an email was sent, and that they have no reason to believe otherwise — a test the department failed in the Patel case.
Boswell advised the immigration department to adopt email programs that has mechanisms requiring recipients to acknowledge receipt of an email.
“While it may be reasonable to imagine that there will be mistakes made by immigration officers when dealing with thousands of visa applications from around the world, where the evidence readily shows that there has been a mistake, it should be rectified,” the judge wrote.
“If the application had been reopened as requested by the applicant and as this court has exhorted the respondent to do on several occasions, this hearing before the court would not have been necessary.”
The court decision cannot be appealed because the judge did not certify any question.
http://www.thestar.com/news/immigration/2015/08/16/would-be-immigrant-from-india-awarded-3000-over-a-lost-email.html