Date: 20031212
Docket: IMM-6414-02
Citation: 2003 FC 1449
BETWEEN:
AMMAR KADIR NOZEM
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
LEMIEUX J.:
BACKGROUND
[1] The central question to be decided in this judicial review application is whether the exceptions to the functus officio rule set out in the Supreme Court of Canada's judgment of Chandler v. Alberta Association of Architects, [1989] 2 S.C.R. 848, apply to the circumstances of the applicant's case.
[2] Ammar Kadir Nozem, (the "applicant") is a 38 year-old male citizen of Iraq who came to Canada on December 16, 2000, and claimed refugee status that same day. He fears persecution because of his Turkoman ethnicity and his perceived imputed or real political opinion as an opponent to the now defunct regime of Saddam Hussein. He also claimed to be in danger of torture and to a risk to his life or to a risk of cruel and unusual treatment or punishment in Iraq.
[3] His refugee hearing was held in Ottawa on July 16, 2002, before Sylvie Roy, the Presiding Member (the "tribunal"). She reserved her decision.
[4] The applicant states in his affidavit filed in support of his application for judicial review, that he was anxious to hear about the decision in his case. A couple of weeks after his hearing, he went to the offices of the Immigration and Refugee Board (the "IRB") on Slater Street in Ottawa and spoke to the case management officer who checked the computer to see if there had been a decision in his case. He states in his affidavit:
13. He informed me that the computer indicated that I had received a positive decision but that the letter had not been sent out yet. He said I should receive it in about 15 days.
[5] After a second re-attendance at the IRB because the letter had not been received in that time frame and because of his inability to contact the case management officer in person or by phone, he went back a third time to the IRB's offices and this on August 30, 2002. He asked for the case management officer who was busy at the time but asked that he wait in the reception area for him. The applicant recites:
20. I waited for about half an hour or forty five minutes. Then the case officer came out with an envelope for me. The envelope contained the positive decision from the refugee board... .
[6] The record indicates what the applicant received was a notice of decision in which subsection 107(1) of the Immigration and Refugee Protection Act (the "Act") and Rule 61 of the Refugee Protection Division Rules (the "Rules") are referred to at the top of the page. It was signed by the case management officer on behalf of the Registrar and is dated August 30, 2002. The notice recites the claim was heard on July 16, 2002 and that the Refugee Protection Division determines that the claimant "IS A CONVENTION REFUGEE AND THEREFORE THE REFUGEE PROTECTION DIVISION ACCEPTS THE CLAIM".
[7] The applicant states the case management officer also gave him the application forms to apply for permanent residence in Canada which he filled out and sent to Vegreville, Alberta, along with his positive decision. That application is still pending. He also applied for and was granted a health card and a work permit using the positive decision.
[8] Much to his surprise and consternation, he tells us that on December 2, 2002, he received a second notice of decision from the IRB dated November 28, 2002, signed by the same case management officer on behalf of the Registrar reciting the July 16, 2002 hearing but with a different result. The body of that second notice reads:
The Refugee Protection Division determines that the claimant
IS NOT A CONVENTION REFUGEE AND IS NOT A PERSON IN NEED OF PROTECTION. THEREFORE THE REFUGEE PROTECTION DIVISION REJECTS THE CLAIM.
[9] Attached to this second notice were reasons for decision by the tribunal dated at Ottawa, November 19, 2002. It found the claimant's testimony not to be credible and outlined its reasons over several pages. In terms of his ethnicity, it relied upon documentary evidence to find that on the balance of probabilities, he was not persecuted in Iraq as a result of his ethnicity.
[10] The applicant in this judicial review application seeks to quash the tribunal's November 2002 decision on the sole ground the tribunal was functus officio at the time it rendered its November 2002 decision.
[11] He argued the decision of Zelzle v. Canada (Minister of Citizenship and Immigraiton), [1996] 3 F.C. 20, a decision of Justice Nadon, then a member of the Trial Division, was directly on point.
[12] The respondent, the Minister of Citizenship and Immigration, (the "Minister") filed two affidavits in support of his position the tribunal was not functus officio when it rendered its decision of Novembe 2002. Those affidavits were by the case management officer and by his supervisor.
[13] The purpose of those affidavits was to explain the IRB's computerized system, known as STAR, which it uses to track the status of all files.
[14] The case management officer states the STAR system records whether the member hearing an applicant's claim has rendered a positive or negative decision and when a decision is sent out to the parties.
[15] He states the tribunal reserved its decision at the end of the hearing and kept the applicant's file until the written reasons rejecting his claim were completed in November 2002.
[16] He indicates in mid-December 2002, his supervisor informed him the applicant told her he had received both a negative and positive decision regarding his claim and brought copies of both decisions. He states he immediately reviewed the STAR system and the only reference in STAR to a decision being made and sent out to the parties is an entry dated November 28, 2002. In particular, the "Disposition Entry Screen" reveals a negative decision was rendered on November 19, 2002 and the "Outgoing Correspondence Entry Screen" records the decision was sent out to the applicant on November 28, 2002. He advises there is no entry in the STAR system to show that a positive decision was ever rendered on the applicant's claim and there is no entry in STAR that a positive decision was ever released to him.
[17] The case management officer also referred to the Hearing Disposition Record for the applicant's case. He states that record is signed by the member hearing the claim and is used to indicate the outcome of the hearing. He states, in Mr. Nozem's case, that record indicated the decision in the applicant's claim was reserved and the presiding member rendered a negative decision on November 19, 2002.
[18] At paragraph 12, the case management officer states as follows:
While Mr. Nozem claims in his Affidavit that I provided him with a positive decision at our offices, I have no such recollection. Based upon my review of Mr. Nozem's claim, including the records contained on STAR and the Hearing Disposition Record, I do not believe that the Board ever rendered, or intended to render, a positive decision for Mr. Nozem's claim... . [emphasis mine]
[19] The case management officer's supervisor basically confirmed how STAR tracks the IRB's files. She states the IRB's normal practice is for a file to be charged out to the member hearing the claim and that once the member has reached a decision, the file is returned to the case management officer. In cases where a member provides written reasons for decision, the file will be kept with the member until the written reasons are completed and ready to be released. At the conclusion of the hearing, if a decision is reserved, a "Status of Reasons Entry Screen" is opened to track the drafting of the reasons.
[20] The supervisor states once a decision is completed, it is the responsibility of the case management officer to send the decision with reasons to the appropriate parties and the officer will make a disposition entry in STAR indicating whether the decision was positive or negative.
[21] She states with the exception of a positive oral decision made in the hearing room, "it is not the practice of the Board to give a claimant a copy of his or her decision at the Board's offices". She concludes by saying she does not believe the IRB ever rendered, or intended to render, a positive decision for the applicant's claim and she agreed specifically with paragraph 12 of the case management officer's affidavit namely, that the only decision recorded in STAR is for a negative decision as is the outgoing correspondence entry for the negative decision; no record in STAR for a positive decision nor any record of a positive decision being released to the applicant; the hearing disposition record records a negative decision and the IRB has the original for the negative decision on Mr. Nozem's claim but does not have an original copy for the positive decision Mr. Nozem claims to have received.
[22] Neither of the two affiants for the respondent was cross-examined.
ANALYSIS
[23] At the hearing, in response to questions by the Court, I was informed:
(1) there is no assertion by the Minister the August 30, 2002, notice of decision was fraudulent;
(2) the RCMP was not called in to investigate the matter;
(3) the case management officer signed both notices of decision for the Registrar and there is no claim the signatures on both notices were not his.
[24] I also observe the case management officer does not deny ever meeting with the applicant face to face, in August, 2000. He stated he had no recollection of handing the applicant a positive decision. However, he does not explain how the applicant came into possession of a document purportedly signed by him notifying the applicant of that positive decision. Moreover, he does not tell us whether entries in STAR can be modified or deleted.
[25] Based on the evidence before me, I find, on the balance of probabilities, the August 30, 2002 IRB notice of decision to the applicant which he received was an authentic document. Whether it was mistakenly issued is another matter.
[26] The Supreme Court of Canada's decision in Chandler, supra, is the leading case on functus officio.
[27] Justice Sopinka, on behalf of the Court's majority, wrote this at paragraph 20:
¶ 20 I do not understand Martland J. to go so far as to hold that functus officio has no application to administrative tribunals. Apart from the English practice which is based on a reluctance to amend or reopen formal judgments, there is a sound policy reason for recognizing the finality of proceedings before administrative tribunals. As a general rule, once such a tribunal has reached a final decision in respect to the matter that is before it in accordance with its enabling statute, that decision cannot be revisited because the tribunal has changed its mind, made an error within jurisdiction or because there has been a change of circumstances. It can only do so if authorized by statute or if there has been a slip or error within the exceptions enunciated in Paper Machinery Ltd. v. J. O. Ross Engineering Corp., supra. [emphasis mine]
[28] Justice Sopinka had expressed the two exceptions in the following terms:
(1) where there had been a slip in drawing up the formal judgment; and
(2) where there was an error in expressing the manifest intention of the Court.
[29] He continued at paragraph 21 in the following terms:
¶ 21 To this extent, the principle of functus officio applies. It is based, however, on the policy ground which favours finality of proceedings rather than the rule which was developed with respect to formal judgments of a court whose decision was subject to a full appeal. For this reason I am of the opinion that its application must be more flexible and less formalistic in respect to the decisions of administrative tribunals which are subject to appeal only on a point of law. Justice may require the reopening of administrative proceedings in order to provide relief which would otherwise be available on appeal.
[30] In Chandler, supra, the Court also considered another type of error which would justify looking at a matter anew - a denial of natural justice which makes a decision rendered a nullity. Justice Sopinka expressed the principle at paragraph 25:
¶ 25 If the error which renders the decision a nullity is one that taints the whole proceeding, then the tribunal must start afresh. Cases such as Ridge v. Baldwin, [1964] A.C. 40 (H.L.); Lange v. Board of School Trustees of School District No. 42 (Maple Ridge) (1978), 9 B.C.L.R. 232 (S.C.B.C.) and [1968] S.C.R. 330">Posluns v. Toronto Stock Exchange, [1968] S.C.R. 330, referred to above, are in this category. They involve a denial of natural justice which vitiated the whole proceeding. The tribunal was bound to start afresh in order to cure the defect.
CONCLUSIONS
[31] My examination of the record persuades me the principle of functus officio does not apply to the tribunal's November decision, notice of which was dated November 28, 2002 and signed by the case management officer.
[32] The principle of functus officio has no application because the notice of decision dated August 20, 2002, was issued in error. There was never any intention by the tribunal to issue a positive decision and it never rendered a positive decision of which notice could be given.
[33] I am driven to this conclusion through a consideration of three major documents in the record. First, the tribunal's Hearing Disposition Record signed by the tribunal at various stages of its deliberations:
(a) when the matter was taken under reserve;
(b) its draft reasons dated October 3, 2002; and
(c) its final disposition dated November 19, 2002 with a checkmark in the negative box.
[34] Second, the "Status of Reasons Entry Screen" shows draft reasons sent to the tribunal's assistant on October 3, 2002; draft reasons sent to legal on October 22, 2002, draft reasons returned to the tribunal on November 21, 2002, memo to Registrar November 22, 2002 and date of mailing November 28, 2002.
[35] Third, the IRB's memo sheet indicates the tribunal had possession of the file throughout the relevant period.
[36] I also note from paragraph 63(2)(b) of the Refugee Protection Division Rules (the "Rules") a decision rejecting a refugee claim takes effect when the tribunal signs and dates the reasons for decision. In the case of a decision allowing a refugee claim, paragraph 63(1)(b) of the Rules provides such a decision takes effect when the division member signs and dates the decision, if the decision is in writing.
[37] There is no evidence in the record the tribunal signed and dated any positive decision and the evidence is to the effect the tribunal only signed and dated reasons for a negative decision.
[38] As noted, the applicant relies upon Zelzle, supra. Justice Nadon held the principle of functus officio applied in the case before him. I agree with his decision but Zelzle, supra, has no application to this case. The reason the principle of functus officio applied there was because a previous valid decision had been rendered without a hearing on May 10, 1993. There was no administrative error in issuing notice of decision.
[39] This is not the situation before me where no decision was made in respect of the August 20, 2002 notice of decision. That notice was issued through an administrative error because no positive decision had been made by the tribunal.
[40] If I came to the conclusion the August 20, 2002 notice of positive decision was issued through an administrative error, counsel for the applicant, with some support from counsel for the respondent, suggested I quash the November 19, 2002 decision and send it back for reconsideration. I asked on what grounds. Counsel for the Court answered by invoking the Court's equitable jurisdiction.
[41] I cannot accept the applicant's suggestion. I do not see how I could quash a decision when none of the grounds specified in section 18.1 of the Federal Court Act have been made out. I stress again that functus officio was the only grounds argued against the tribunal's November 2002 decision.
[42] The applicant cannot have a remedy from this Court in the circumstances. He may have other remedies perhaps from the IRB itself or from the respondent Minister but I do not know.
[43] For these reasons, this judicial review application is dismissed. No certified question was proposed.
J U D G E
OTTAWA, ONTARIO
DECEMBER 12, 2003
FEDERAL COURT
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-6414-02
STYLE OF CAUSE: Ammar Kadir Nozem v. MCI.
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: Monday, November 24, 2003
REASONS FOR ORDER and ORDER : The Honourable Mr. Justice Lemieux
DATED: December 12, 2003
APPEARANCES:
Mr. David Morris FOR APPLICANT
Mr. Michael Roach FOR RESPONDENT
SOLICITORS OF RECORD:
Bell Unger Morris FOR APPLICANT
Ottawa, Ontario
Mr. Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada
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