Rizwan Ahmad Khan Gondal
Articles du même auteur
29 Mar 2016

Case Comment: Tzu-Tsen Lim c The Minister of Citizenship and Immigration, 2016 FC 217.

Par Rizwan Ahmad Khan Gondal

By Rizwan Ahmad Khan Gondal.
Lim c Canada is a case which brings to light the importance of tendering evidence in proving one’s assertion. In this case, the Minister of Citizenship and Immigration could not prove his defence that he had indeed mailed a letter to the designated recipient on the date that he claimed that he did. The failure to prove was thus deemed sufficient to the overturning of the Minister of Citizenship and Immigration’s administrative order.

After having received Ms. Lim’s Canadian citizenship application in June of 2010, [Para 5] the Citizenship office sent her a letter on October 22, 2014, requesting additional information. [Para 6] She responded to the letter on time. [Para 6] However, subsequently, on April 13, 2015, the office sent the applicant yet another letter asking for some further information. This letter stated that if the applicant failed to ‘respond on time’, her citizenship application would be ‘deemed abandoned’. [Para 7] But, allegedly, the applicant did not receive that letter, hence, she could not respond to the office’s request on time. As such, the citizenship office deemed the claimant’s application to have been abandoned and closed her file. But when the claimant received notification that her file had been closed, she contacted the office and claimed that she had not abandoned her application and that her file should be reopened. She cited the reason that she had not received the Citizenship office’s April 13, 2015 letter asking her for more information. The Citizenship office, however, opined that ‘Abandoned applications are only reactivated if there was an administrative error on the part of Citizenship officials’. [Para 10] And, since The Minister did not think that any of the Citizenship officers had committed any errors, the claimant’s request was thus denied.
Ms. Lim filed an application at the Federal Court in Ottawa for a judicial review of the Citizenship office’s administrative order seeking to have that order quashed.
The court decided that because there was no credible evidence that the April 13, 2015 letter was mailed by the Citizenship office, the applicant ‘had a “reasonable excuse” pursuant to s 13.2 [of the Canada Citizenship Act, RSC 1985, c C-29] for her failure to respond’ to the Minister’s request. [Para 18] Furthermore, that since the April 13, 2015 letter had not been sent to the applicant, ‘this was the very type of administrative error’ which the Citizenship ‘Official [had erroneously] cited’ [Para 22] in its opinion as not being an error at all. The office’s decision to not reopen the file was thus deemed to have been ‘arbitrary and unreasonable’. [Para 23]
The primary issue in this case appears to be the mailing of the April 13, 2015 letter. If the Citizenship office had credible evidence which proved that the letter was indeed mailed, the outcome of the case would most likely have been different. That evidence could have come in the shape of ‘a notation in the GCMS system, as [was] the [office’s] usual practice, that the letter was sent’. [Para 15] But since there was ‘no notation in the GCMS system’ and the claimant had a pattern of regularly responding to the Minister’s other requests, [Para 16] it was assumed that the impugned letter was indeed not sent. [Para 17] 
Consequently, the court divided the claim into two separate issues. The first was the supposed abandonment of the application and the second was the refusal of the office to open the file. Two separate judicial review standards applied to the issues at hand. The abandonment of the application was reviewed under the ‘correctness standard of review’ [Para 12] and the refusal to re-open the file was reviewed under ‘the standard of reasonableness’. [Para 12]
Logically, since the April 13, 2015 letter was not received by the applicant, the applicant was not privy to the notice contained in that letter. The notice informed the recipient that the application would be deemed abandoned if the recipient did not respond within the allotted time frame. This notice requirement was both a statutory requirement as well as a common law obligation. [Para 19] And since the office acted unilaterally without informing the applicant what it was going to do, the office’s action was adjudged to be procedurally ‘unfair’. [Para 12]
Additionally, since not sending the letter was deemed to have been an administrative error, the subsequent decision made by the office despite that obvious error would then naturally speaking, ‘lack reality, common sense and fairness’, [Para 24] as such, that decision would logically be ‘arbitrary and unreasonable’. [Para 23]
To read this decision in its entirety, click here.

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