Khan v. Canada (Minister of Citizenship and Immigration), 2015 FC 503

• Judge: Diner, J.
• Court: Federal Court (Canada)
• Case Date: February 05, 2015
• Jurisdiction: Canada (Federal)
• Citations: 2015 FC 503;(2015), 479 F.T.R. 90 (FC)

Khan v. Can. (M.C.I.) (2015), 479 F.T.R. 90 (FC)

MLB headnote and full text

Temp. Cite: [2015] F.T.R. TBEd. MY.034

Shamaila Khan (applicant) v. The Minister of Citizenship and Immigration (respondent)

(IMM-7324-13; 2015 FC 503)

Indexed As: Khan v. Canada (Minister of Citizenship and Immigration)

Federal Court

Diner, J.

April 20, 2015.

Summary:

An officer of Citizenship and Immigration Canada rejected the applicant's application for permanent residence as a member of the Spouse or Common-Law Partner in Canada class. The applicant applied for judicial review.

The Federal Court dismissed the application.

Aliens - Topic 1221.1

Admission - Immigrants - Application for admission - Duty of applicant (incl. truthfulness) - [See Aliens - Topic 1236 ].

Aliens - Topic 1230

Admission - Immigrants - Application for admission - Immigrant visa - Duty of officer (incl. duty of fairness) - [See Aliens - Topic 1236 ].

Aliens - Topic 1236

Admission - Immigrants - Application for admission - Evidence and proof - An officer of Citizenship and Immigration Canada (CIC) rejected the applicant's application for permanent residence as a member of the Spouse or Common-Law Partner in Canada class - In a letter dated May 31, 2013, CIC had requested specific documentation, including a divorce certificate and passport information - In a letter dated October 15, 2013, CIC informed the applicant that she had failed to submit the documentation required for approval, as requested by CIC - As a result, the applicant could not establish that she met the requirements of permanent residence - The applicant applied for judicial review - The applicant claimed that she never received the May 31, 2013, letter and that she was only made aware, over the telephone, that CIC required her divorce certificate - She said that she provided that document to CIC by way of correspondence dated July 2, 2013, and that she ended her response by advising CIC to inform her if further documentation was still required - The applicant submitted that it was unreasonable for the officer to make a decision on the basis of the missing documents, when she had clearly intimated in her July 2, 2013, response that she believed her application to be complete - The applicant contended that this reversed the onus, normally placed upon applicants, that documents that had been duly mailed had been received - The Federal Court dismissed the application - The onus was on an applicant to ensure the completeness and accuracy of her application - One line in one letter could not shift that onus - Further, it was not clear that the applicant failed to receive the May 31, 2013 letter - The onus was on her to demonstrate that the document was not received - The applicant had not rebutted the presumption that she received the document - The court saw no breach of procedural fairness.

Cases Noticed:

Khela v. Mission Institution (Warden) et al. (2014), 351 B.C.A.C. 91; 599 W.A.C. 91; 455 N.R. 279; 2014 SCC 24, refd to. [para. 12].

Miah et al. v. Canada (Minister of Citizenship and Immigration) (2015), 473 F.T.R. 141; 2015 FC 36, refd to. [para. 12].

Essaidi v. Canada (Minister of Citizenship and Immigration), [2011] F.T.R. Uned. 246; 2011 FC 411, refd to. [para. 12].

Kaur v. Canada (Minister of Citizenship and Immigration), [2009] F.T.R. Uned. 753; 2009 FC 935, refd to. [para. 13].

Mannil et al. v. Canada (Minister of Citizenship and Immigration) (2014), 446 F.T.R. 167; 2014 FC 70 , refd to. [para. 13].

Yang v. Canada (Minister of Citizenship and Immigration), [2008] F.T.R. Uned. 122; 2008 FC 124, refd to. [para. 14].

Halder v. Canada (Minister of Citizenship and Immigration), [2012] F.T.R. Uned. 787; 2012 FC 1346, refd to. [para. 15].

Kisana v. Canada (Minister of Citizenship and Immigration) (2009), 392 N.R. 163; 2009 FCA 189, refd to. [para. 17].

Ross v. Canada (Attorney General) (2015), 477 F.T.R. 62; 2015 FC 344, refd to. [para. 17].

Adams v. Canada (Minister of Citizenship and Immigration), [2009] F.T.R. Uned. 741; 2009 FC 1193, refd to. [para. 17].

Paashazadeh v. Canada (Minister of Citizenship and Immigration) (2015), 477 F.T.R. 25; 2015 FC 327, refd to. [para. 18].

Counsel:

John Savaglio, for the applicant;

Nadine Silverman, for the respondent.

Solicitors of Record:

John Savaglio, Pickering, Ontario, for the applicant;

William F. Pentney, Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.

This application was heard on February 5, 2015, at Toronto, Ontario, before Diner, J., of the Federal Court, who delivered the following decision on April 20, 2015.