August 31, 2015
Who Bears the Risk For Lost or Failed E-mails From CIC?
When you supply Citizenship and Immigration Canada (CIC) with an e-mail address, either by providing an e-mail address on your application form to CIC or initiating e-mail communication with CIC, you are providing your consent to receive messages via e-mail. There’s no doubt that communicating with immigration officers through e-mail is fast, efficient, and generally reliable, but it is not without its problems. Unfortunately, there have been numerous cases before the Federal Court where failed or lost e-mail communications have led to an applicant failing to respond to a request for additional documents, which ultimately caused the rejection of their permanent residence visa application. In these cases, the Court is faced with deciding whether the sender or receiver bears the responsibility for the missed e-mail communication in question.
The general presumption within the case law is that if an applicant misses a deadline claiming that CIC’s e-mail was never received, then the applicant or their representative is responsible if CIC can prove the e-mail was sent, even if it was never received. However, this presumption can be rebutted when there is objective evidence that the e-mail was not received. In other words, once it is proved on a balance of probabilities that communication was sent, the onus shifts to the applicant to demonstrate that there was a failure to receive the communication.
In order for CIC to prove that the e-mail was sent, it must supply sufficient evidence. This can include a copy of the message and its contents, a printout of the sender’s e-mail sent box showing the message was addressed to the e-mail address supplied, no indication of non-delivery such as the existence of a “bounced back” e-mail, and notes made in the CIC electronic management system stating the message was sent.
Applicants seeking to prove that the communication was not received can present a sworn affidavit and screen shots of their inbox, trash folder, or deleted folder. Their contention may be stronger if CIC received clues that should have indicated that an e-mail may not have been received. For example, if CIC received a message that the e-mail delivery failed or that it has been relayed or if the applicant makes attempts to inquire about the status of their application, the presumption that the e-mail was received can also be rebutted. The sender would bear the risk.
Generally speaking, however, the risk of non-receipt lies with the applicant. It is more difficult to prove that an application was not received than it is to demonstrate that it was sent. When the stakes are high and there is a possibility of an application being refused due to non-compliance, steps should be taken by the applicant to mitigate the risks. CIC will not be at fault if the applicant changes their e-mail address without alerting them, or if the applicant’s e-mail automatically filters the message into a spam or junk folder. Applicants should adjust their e-mail settings so that e-mails from CIC do not get transported into their junk mail or spam folders. It is also crucial to update CIC of any changes in your contact information.
Even after taking all possible precautions, it is possible that a system error may occur resulting in a lost e-mail. If an application for permanent residence is refused because an applicant did not supply information that was requested in an e-mail that was never received, this may be a breach of procedural fairness. The applicant should first contact the immigration office involved to ask for reconsideration, stating that the e-mail was not received. If unsuccessful, the applicant may be able to challenge the decision to the Immigration Appeal Division or to the Federal Court.