Federal Court Decisions

Date: 20051102

Docket: IMM-9807-04

Citation: 2005 FC 1488

Toronto, Ontario, November 2, 2005

PRESENT:    THE HONOURABLE MADAM JUSTICE MACTAVISH

BETWEEN:

HAK ROHINI

Applicant

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER AND ORDER

[1]    Rohini Hak applied for permanent residence in Canada. Because of her failure to attend for her interview, her application was assessed based upon the information available to the immigration officer, which resulted in the application being rejected. Ms. Hak seeks to have that decision set aside, asserting that her immigration consultant failed to notify her of the interview date, and that, as a result, she was denied procedural fairness in the process.

[2]    Ms. Hak has not succeeded in persuading me that there was a denial of procedural fairness in this case. As a consequence, her application for judicial review will be dismissed.

Chronology of Events

[3]    With the aid of an immigration consultant, Ms. Hak first applied for permanent residence on January 25, 2002. By letter dated May 4, 2004, the Canadian Consulate in Los Angeles advised Ms. Hak's immigration consultant that her interview had been scheduled for June 29, 2004, in Los Angeles. The letter further advised that this would be Ms. Hak's only opportunity for an interview, and that if she did not attend, a decision would be made in relation to her application for permanent residence based upon the information then available.

[4]    Ms. Hak did not attend for her interview on June 29, 2004. After an exchange of correspondence between Ms. Hak's immigration consultant and the Consulate, and between Ms. Hak herself and the Consulate, a decision was made on September 13, 2004 to refuse her application for permanent residence. Despite subsequent requests from both Ms. Hak and her immigration consultant, the Consulate declined to revisit this decision.

[5]    On September 22, 2004, a further letter was sent directly to Ms. Hak by the Canadian Consulate in Los Angeles. This letter responds to a September 13, 2004 letter from Ms. Hak to the Consulate, which appears to have crossed in the mail with the decision letter. The September 22 letter advises that the explanation provided by Ms. Hak for her failure to attend her interview contradicted explanations provided by her immigration consultant for her failure to attend. As a result, Ms. Hak was advised that the decision in her case would not be changed.

The Explanations Offered for Ms. Hak's Failure to Attend Her Interview   

[6]    It should be noted at the outset that Ms. Hak has not filed an affidavit in this proceeding. As a consequence, there is no direct, sworn evidence before the Court with respect to the state of her knowledge in relation to the timing of her interview.

[7]    An affidavit was filed by Ms. Hak's immigration consultant. However, this affidavit merely attaches various letters to and from the Consulate in Los Angeles. There is no statement in the affidavit that the contents of any of the letters are true, nor is there any explanation offered in the affidavit itself as to what happened in this case.

[8]    Moreover, a review of the letters themselves raises a number of questions with respect to Ms. Hak's claim that she was never given the date of her interview by her immigration consultant.

[9]    As was noted previously, Ms. Hak's interview was scheduled for June 29, 2004. The first explanation for Ms. Hak's failure to attend appears in a June 30 letter from the immigration consultant to the Canadian Consulate in Los Angeles which states:

We intimated (sic) our client about the interview by e-mail well in advance. Unfortunately, we have not received any response from our client and despite our attempts til the very last minute, we are unable to trace our client, as we are unable to contact her at this point.

[10]                        According to this letter, multiple attempts were made to reach Ms. Hak in advance of her interview, none of which was successful.

[11]                        A second letter, also dated June 30, 2004 was faxed to the Consulate on July 22, 2004. This letter states:

Our client was unable to attend the interview on the scheduled date due to certain unforeseen circumstances. Please be informed that we have already addressed a communication to you dated June 30 informing you of this situation.

We have now touched base with our client on this case - given the current situation we request you to kindly pardon our client's absence and reschedule our client's interview and grant our client one more chance to attend the interview.       

[12]                        It should be noted that there is no explanation in this second letter as to how it was that the immigration consultant had been able to locate Ms. Hak, given his earlier inability to trace her whereabouts. Nor is any explanation offered as to what the "certain unforeseen circumstances" were.

[13]                        On August 2, 2004, the Consulate advised Ms. Hak - through her immigration consultant - that her interview would not be rescheduled.

[14]                        By e-mail dated September 11, 2004, the immigration consultant then contacted Ms. Hak, sending her the correspondence received relating to her file. The immigration consultant goes on to state:

As you are aware on the interview date you could not attend the interview and as such, the Canadian High Commission has rejected your case.

[15]                        There is no reference in this letter to any difficulty that the immigration consultant may have had in reaching Ms. Hak. Moreover, the letter appears to suggest that Ms. Hak may not have been available for her interview on the scheduled date.

[16]                        Ms. Hak herself wrote to the Canadian Consulate on September 13, 2004.    As was noted previously, it appears that this communication may have crossed with the decision letter of the same date. In her letter, Ms. Hak stated that her immigration consultant had not 'intimated' her of the date of her interview, and that, as a result, she was unaware that a date had been set. According to Ms. Hak, she received a phone call from the immigration consultant, after the fact, apologizing for his failure to advise her of the interview date.

[17]                        Once again, there is no explanation as to how the immigration consultant was able to reach Ms. Hak by telephone, given his supposed inability to locate her prior to the date scheduled for her interview.

[18]                        Also on September 13, 2004, the immigration consultant wrote to the Canadian Consulate with respect to Ms. Hak's case. In again requesting that Ms. Hak's interview be rescheduled, the immigration consultant stated:

This is to confirm that Ms. Hak did not have any knowledge about her Interview scheduled at your office. We had sent an email to Ms. Hak's email id informing her about her interview at your office which bounced back due to some technical error at the server and which got over looked at our office. Therefore we were under the impression that Ms. Hak was aware about her interview at your office meanwhile Ms. Hak did not even receive the email forwarded by our office to her email id.

[19]                        This is the first time that the 'returned e-mail' explanation was provided. This letter also seems to suggest that only one attempt had been made to notify Ms. Hak of the interview date - a claim that is at odds with the initial assertion by the consultant that multiple attempts had been made.    Moreover, the immigration consultant does not say when this attempt was allegedly made, nor has he produced a copy of either the e-mail ostensibly sent to Ms. Hak, or the "Delivery Failure" notice that would have been received in connection with the returned e-mail. Finally, the immigration consultant gives no indication as to when it was that his office discovered that Ms. Hak had not in fact received notice of her interview date.

Analysis

[20]                        Ms. Hak submits that the failure of her immigration consultant to notify her of the date for her interview resulted in her being denied procedural fairness in the process. Given that there would be no prejudice to the respondent if the interview was rescheduled, and the fact that she has been waiting some time for her interview, Ms. Hak says that the Consulate's decision should be set aside.

[21]                        The law is clear that an individual must bear the consequences of hiring poor counsel: Jouzichin v. Minister of Citizenship and Immigration, [1994] F.C.J. No. 1886 and Huynh v. Minister of Employment and Immigration, [1993] F.C.J. No. 642, 65 F.T.R. 11.

[22]                        That said, there may be circumstances where the negligent or incompetent actions of an individual's representative may result in the person being denied a fair hearing: see, for example, Osagie v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No.1656, 2004 FC 1368. However, as Justice Rothstein noted in Drummond v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 477, 112 F.T.R. 33, ¶ 4, for the negligence or incompetence of counsel to give rise to an issue of natural justice "the facts must be specific and clearly proven".

[23]                        Given the inconsistencies, frailties and gaps in the evidence discussed above, Ms. Hak has failed to persuade me that she has been denied procedural fairness in the process followed in relation to her application for permanent residence.

Conclusion

[24]                        For these reasons, the application is dismissed.

Certification

[25]                        Neither party has suggested a question for certification, and none arises here.

ORDER

THIS COURT ORDERS that:

1.          This application for judicial review is dismissed.

2.                   No serious question of general importance is certified.   

"A. Mactavish"