It is a scenario that anyone who e-mails experiences all to often. You send an e-mail, and then a couple seconds later receive a DNS message informing you that the e-mail was never delivered. Most of the time these e-mails are rather inconsequential. However, what if the e-mail is correspondence between a visa applicant and an embassy, and the failed delivery results in the missing of an important deadline?
From 2010 to 2015 the jurisprudence held that it was the applicant who bore the responsibility of missed e-mail communications where Citizenship and Immigration Canada / Immigration Refugees and Citizenship Canada (“CIC” or “IRCC“)) could show that the e-mail was sent. In Asoyan v. Canada (Citizenship and Immigration Canada), 2015 FC 206 (“Asoyan“) however, the Federal Court shifted the onus to CIC.
This blog post is divided into two sections. The first is my blog post on this topic as it was written before the Federal Court issued its decision in Asoyan. The second is the implication of the Asoyan decision.
Who Bears the Risk
Who bears the risks when e-mail notices are sent by a visa officer but are not received by the applicant’s agent?
The answer is that generally a visa officer does not have to prove an applicant received a letter giving notice of an interview. However, the officer does have to prove that she sent it to the correct address.
Meanwhile, the applicant, or the applicant’s representative, has to have adequate systems in place to ensure that e-mail does not go astray. Factors such as the unavailability of a person to receive correspondence, malfunctions of equipment at the receiving end, or administrative errors are not the responsibility of immigration officials.
Thus, when a communication is correctly sent by a visa officer to an address (e-mail or otherwise) that has been provided by an applicant which has not been revoked or revised and where there has been no indication received that the communication may have failed, then the risk of non-delivery rests with the applicant and not with the visa officer.
Furthermore, a visa officer will not be responsible if the applicant changes his/her e-mail address, or if the applicant’s e-mail service filters the message into a spam folder.
Yazdani v. Canada
What about where a visa officer sends an e-mail to the correct address, but due to a technical issue the e-mail is never received, and the visa officer is made aware of the non-receipt?
The Federal Court addressed this issue in Yazdani v. Canada (Citizenship and Immigration).
Six cases of an immigration consultant were transferred from the Damascus embassy to Warsaw due to a large backlog in Damascus. Shortly thereafter, a visa officer at the Warsaw embassy sent a letter for each case to the consultant which stated that the consultant had 90 days to provide documentation.
For three of the e-mails, the Warsaw Visa Section received an e-mail delivery status notification after the e-mail was sent. It stated:
Subject: FW: Delivery Status Notification (Relay)
This is an automatically generated Delivery Status Notification.
Your message has been successfully relayed to the following recipients, but the requested delivery status notifications may not be generated by the destination.
The immigration consultant swore an affidavit where he stated that he had never received the six e-mail requests for further documentation, that there had been no deletion of e-mail, that the e-mails had not wound up in a spam filter, that there had been no interruption in e-mail service, that there had been no other reports of failed e-mail delivery, and that his office did not have an automated reply to received e-mails.
Because of this, the Federal Court found that the responsibility for the mis-communication lay with the visa officer. An important factor in its decision was that the Warsaw embassy never attempted to verify whether it could communicate with the immigration consultant, even though it had received the file from another embassy
The Court also noted that visa offices must find a strategy to deal with the occasional e-mail error, especially when an applicant has done everything on his or her end to accommodate e-mail communication.
Operational Bulletin 265
On January 21, 2011, Citizenship and Immigration Canada responded to Yazdani by releasing Operational Bulletin 265 – Interim Procedures for E-mail Communications with Clients.
The Bulletin notes that officers are to continue communicating with applicants by e-mail providing that CIC has the applicant’s consent to communicate via e-mail. An applicant gives consent when:
- A completed application form includes an e-mail address.
- An applicant provides a signed Use of Representative Form that includes the representative’s e-mail address and also includes the Representative’s e-mail address under the “mailing address” section.
- An applicant initiates e-mail communication with CIC.
The Guide also provides that immigration officers are to be meticulous in their detailing of when e-mail communications are sent to applicants. It also provides that e-mails should be constantly monitored for undeliverable messages.
Finally, in cases where applicants request re-consideration of their application stating that they did not receive an e-mail instructing them to provide additional information or documentation, officers should consider all the circumstances of the case and use appropriate judgment in determining whether to re-open the application.
Since Yazdani, there has been a string of Federal Court cases on this issue, including:
- It would have been simpler and less costly for both sides if the visa officer had simply addressed the merit of the visa application following the applicant’s prompt request for reconsideration.
- “In other words, while the visa officer may have acted in the strict legality in rendering the impugned decision at the time it did so, the requirement that justice must not only be done but also appear to be done is such that the immigration system can function only with the collaboration of eminently reasonable beings. The maintenance of an appropriate equilibrium in the immigration system goes beyond formal justice and this is where equity comes into play. Visa applications are not court proceedings and visa officers are not tribunals tasked with the mandate to finally decide opposing claims. The functus officio principle should not be applied strictly in this case. Accepting that the applicant is not at fault, it would be highly unfair and unjust today that his visa application file be simply closed, that he be required to pay another processing fee, and that he has to suffer unnecessary delays in the treatment of a fresh application. Accordingly, it would only be fair and just in the circumstances that the visa officer reconsider its earlier decision in light of the new documentation tendered with the reconsideration request. In dismissing the present application on the basis that, technically speaking, there has been no breach of the duty to act fairly, I can only urge the Minister to be sensitive to this reality.”
- It is a breach of procedural fairness to send documents to a residential address when the applicant has provided a different mailing address.
- Contains an in-depth analysis of the “fault principle” in e-mail communications.
- Probably the most comprehensive decision to date outlining the different approaches the Federal Court has taken on the issue.
- Addresses the fact that CIC must produce the actual e-mail, not just a GCMS print out that says that an e-mail was sent.
The Asoyan Decision
In Asoyan, CIC established that it had sent an e-mail to the applicant requesting that the applicant provide additional information. The applicant for whatever reason did not receive the e-mail. However, the applicant, prior to CIC refusing the applicant’s application, contacted the CIC Call Centre to enquire as to why she had not received any e-mails from CIC. Even though CIC thus knew that the applicant had received the e-mail, it still refused the applicant’s application due to her not responding to it. The Federal Court found this unreasonable.
The Federal Court then stated the following:
I am in agreement with the decision in Yazdani that the applicant should not have to bear responsibility for the failed email communication because it would be unduly harsh to place the risk on an applicant who properly submitted their application, provided a valid email address with no evidence of malfunction, and who was awaiting further instructions when the application is rejected without an assessment on the merits. I also am in agreement with Zare that in many situations it would be unfair to the applicant for the respondent to bear no responsibility for communication delivery, especially when it did not provide a safeguard against possible email transmission failure that was available as a function of the email program.
I would add two comments to the jurisprudence that has developed to date in these failed email cases. First, it should be understood how it came about that the general rule of communications for electronic transmissions was reversed from that applying to ordinary mail. Originally, the onus lay with the sender to establish that her communication had reached the sendee. This gave rise to recourse to registered mail to discharge this onus. With the advent of facsimile machines however, the onus to prove a failed communication moved to the addressee. The established technical protocols, whereby the sending and receiving facsimile machines communicated details of the transmission to each other, meant that upon the receiving fax acknowledging receipt, it was reasonable that the addressee would be required to explain why she had not received the document.
There is no such similar reliability with emails whereby the receiving computer communicates with the sending one. In Zare, an expert on email communications described the frailties of email communications. While I recognize that one normally cannot rely on evidence provided in other applications, when it is accepted as a fact by another judge of this Court and in the circumstances of a paper-based procedure involving the same issue, I think some weight can be attributed to it. I quote from Justice Mandamin’s reasons at paragraphs 26 and 27 as follows:
Ray Xiangyang Wang is a computer professional with 10 years of university study in the filed of computer science and who holds BSc. MSc. and PhD. degrees. He has worked as a programmer, project manager, business analyst, and application consultant in the field for 17 years. His credentials were not challenged and he was not cross-examined on his affidavit. I am prepared to accept him as an expert with knowledge of computer science and he may offer opinion evidence about the use of email communications
Mr. Wang stated that email is delivered by simple mail transfer protocol (SMTP) through internet service providers. He opines that “[i]t is well known that the original mail service provides limited mechanisms for tracking a transmitted message and none for verifying that it has been delivered or read. It requires that each mail server must either deliver onward or return a failure notice (bounce message), but both software bugs and system failures can cause messages to be lost.
Moreover, in the last year or so we have become aware of the massive interception of ordinary citizen’s internet communications by international government agencies, in addition to other individuals and organizations that have been unlawfully hacking and intercepting electronic transmissions as are being regularly reported in the news. In my view, the fact that third party agencies now access ordinary citizens email transmissions introduces another element undermining the reliability of these transmissions being received by intended recipients.
Second, if the onus is to pass to the recipient of emails, I am of the view that the respondent is at least required to exhaust all reasonable mechanisms available on email programs to ensure receipt of their important transmissions. I here refer to the acknowledgement of “receipt” and “receipt and read” options available on email programs such as Outlook. These options request acknowledgement by the recipient and thereby serve as a means to ensure that messages have been received by the acknowledgement that would be expected to be returned by anyone seeking residency in Canada.
In support of the requirement to use such options, I quote a the recent English decision of Bermuth Lines Limited v High Seas Shipping Limited  1 Lloyd’s reports 537, where at paragraph 29, the Court indicated that the failure to require confirmation of the intended recipient is evidence that can refute the conclusion that the email was received:
That is not to say that clicking on the “send” icon automatically amounts to good service. The email must, of course, be despatched to what is, in fact, the email address of the intended recipient. It must not be rejected by the system. If the sender does not require confirmation of receipt he may not be able to show that receipt has occurred. There may be circumstances where, for instance, there are several email addresses for a number of different divisions of the same company, possibly in different countries, were dispatched to a particular email address is not effective service.
The protocol of the respondent for communicating with applicants does not contain any requirement to include an acknowledgement of receipt of emails, although a simple and quick procedure available for this purpose. The very high self-interest of the applicant who seeks permanent residency in Canada as soon as possible is such that if no acknowledgement is received within the time period allotted, the Minister is put on notice that its message likely did not arrive in the first place. At the minimum, therefore a second attempt to send the email to the given address can be made. All other things considered, this should normally satisfy any requirement of the respondent to demonstrate reasonable attempts to communicate with the applicant.
As this blog post makes clear, until Asoyan the Federal Court found that the onus of missed e-mails lay with applicants. However, the Federal Court became increasingly critical of CIC’s seeming intransigence on the issue, especially when it came to reconsideration requests. It appears that Asoyan is now the tipping point, and the onus has shifted back to CIC. It will be interesting to see how the Department responds.
Read receipts appears to be the easy answer.
Operational Bulletin 265 – A – Email communication with clients
On January 8, 2016, IRCC released Operational Bulletin 265-A. It provides that visa offices should communicate with applicants via email, provided that the department has the applicant’s consent to communicate in this manner. Consent is given by an applicant in any of the following circumstances:
- A completed application form that includes an email address.
- An applicant submits a signed Use of a Representative form [IMM 5476] that includes the immigration representative’s email address.
- An applicant initiates email communication with IRCC, supplying an email address.
Sent Microsoft Outlook emails will now be uploaded as eDocs and manually attached to the outgoing correspondence record in GCMS.
Unlike with what I wrote above, IRCC does not consider read notification receipts to be a good function to be used as a means of verifying that the client received the email.
Most importantly, the Operational Bulletin declares that where a decision maker declares an application abandoned, or refuses an application for non compliance for failing to comply with the request for additional information, then the onus is on the applicant to satisfy the decision maker that reconsideration of their application is warranted. However, in cases where the applicant or representative requests reconsideration of the immigration application, stating that they did not receive an email instructing them to provide additional information, the decision maker must consider all relevant factors and circumstances of the case to determine whether to exercise their discretion to reconsider the application. This duty stems from the fact that refusals to reconsider applications are subject to judicial review like any other decision.