Date:
20121019
Docket:
IMM-2-12
Citation:
2012 FC 1218
Ottawa, Ontario,
October 19, 2012
PRESENT: The
Honourable Madam Justice Gleason
BETWEEN:
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DE GUANG CHEN
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
The
applicant is a Chinese citizen and prior to his arrival in Canada resided in
the Liaoning Province in China. The applicant came to Canada in 2009 and upon arrival made a refugee claim. He claims to be a Christian and to
fear persecution due to his religion if he were returned to his home province
in China. The Refugee Protection Division of the Immigration and Refugee Board
[the RPD or the Board] dismissed the applicant’s refugee claim. The RPD found that
the applicant’s evidence regarding an alleged raid on his house church in China and the alleged arrest of fellow house church members was not credible. It also held
that the applicant would not be exposed to risk if he were returned to Liaoning Province because the documentary evidence before the Board established that the
applicant could practice Christianity in a house church without fear of
persecution if he were returned to that province.
[2]
The
RPD first issued its Reasons and Decision in this matter on December 13, 2011.
After the applicant filed his application for leave and judicial review, in
which he claimed that the Board had relied on undisclosed documentary evidence
in reaching its decision, the RPD issued Amended Reasons on January 4, 2012. In
its Amended Reasons, the RPD amalgamated a few paragraphs, corrected a number
of footnotes to correctly cite to the National Documentation Package that was
before it and made three amendments to the text of the decision.
[3]
In
this application for judicial review, the applicant asserts that the Board’s
decision must be set aside because it was functus officio once it issued
the December 13, 2011 Reasons and Decision and could not amend them in the
manner it did. The applicant further asserts that in apparently relying on
country documentation in its first decision that was not contained in the
document package disclosed to the applicant, the RPD violated the principles of
natural justice and adopted “boilerplate” reasoning.
[4]
As
is more fully discussed below, none of these submissions has merit. The
amendments made by the Board do not alter its original decision in any
meaningful way and were made to correct a slip; accordingly, the doctrine of functus
officio is inapplicable. Insofar as concerns the alleged violation of the
principles of natural justice, the applicant has not demonstrated any material
difference between the first and second decisions nor between an out-dated
country documentation package that the RPD might have referred to in its first
decision and the actual documentation package that the Board referred to in the
second decision. In essence, all that happened was that the Board corrected
some careless references and footnotes and slightly amended the text of its
decision, to more accurately summarize the evidence before it. This type of
correction does not give rise to a reviewable error and, indeed, results in a
decision that accurately reflects the documentation before the Board as opposed
to a boilerplate decision as the applicant alleges.
Review of the
Board’s Amendments
[5]
There
were four types of amendments made by the Board:
·
the
purely clerical, which involved amalgamation of paragraphs;
·
deleting
inaccurate footnote references (which appear to not correspond to any of the
documents contained in the documentation package regarding Liaoning Province that was before the RPD and might have referred to an outdated package) and
replacing them with accurate references;
·
amending
references from portions of the materials before the Board to cite to other
portions of those materials; and
·
changing
the text of the Reasons in three places so that it conformed to the wording
used in the National Documentation Package that was before the Board.
In terms of the latter changes, it
is useful to set out what appeared in the first and second decisions, to
compare the two:
1.
New
paragraph 7 (old paragraph 10)
FROM:
The
website of the State Administration for Religious Affairs (SARA) states that
family and friends holding meetings at home (as distinct from formal worship in
public venues) need not register with the government. However, there were many
reports that police and officials of local Religious Affairs Bureaus (RABs)
disrupted home worship meetings claiming the participants disturb neighbours or
social order or belong to an “evil religion”.
TO: The
website of the State Administration for Religious Affairs (SARA) states that
family and friends holding meetings at home (as distinct from formal worship in
public venues) need not register with the government. Respect for this policy
at the provincial, county and local levels was uneven and there were several
reported cases of local officials disrupting religious meetings in private
homes.
2.
New
paragraph 7 (old paragraph 10)
FROM:
Documentation
also highlights, “Members and leaders of unregistered Protestant groups in China continue to face harassment and harsh punishment, including detention, fines,
beatings, confiscation of property, arrest and mistreatment and torture in
custody.” The documentation also reported that arrests for harassment of
peaceful Protestant religious activity occurred in at least 17 provinces and
two municipalities, with most incidents occurring in Henan, Xinjiang, Shangdong, Hebei and Zehjiang provinces.
TO: Documentation
also highlights, “The government actively harasses, detains, fines, mistreats
and imprisons members and leaders of unregistered Protestant groups”.
3.
New
paragraph 8 (old paragraph 11)
FROM:
Their report identifies five main targets of persecution: House church leaders,
house churches in urban areas, forcing churches to quit worship meetings,
severe punishment through long term imprisonment and heavy fines on church
leaders and believers, and tighter control of the Three-Self Church.
TO:
Their report identifies five main targets of persecution: House church leaders,
house churches in urban areas, attacks on Christian Human Rights lawyers
groups, violent abuse, torture and use of mafia tactics and severe crackdown on
Three-Self Patriotic Movement churches that do not accept government control.
[6]
Especially
when read in context, none of these changes is material to the applicant’s
claim or to the Board’s treatment of it. There is no difference in meaning, in
my view, between the old and new texts in the first two of the above excerpts
and the applicant does not fall within any of the five main targets of
persecution in either version of the text in the third of the foregoing
excerpts. Thus, these amendments are insignificant.
[7]
Insofar
as concerns the amendments made to the footnote references, the applicant has
been unable to point to documents that the Board might have referenced in its
first version of the decision that are in any way different in content from
those referenced in the second version of the decision, that were contained in
the National Documentation Package that was before the RPD. Indeed, it would
appear impossible for such demonstration to be made because the RPD did not
change the text of its decision when it amended the footnote references but,
rather, merely corrected pinpoint cites to the documentation, all of which
support the statements made in the decision. In my view, this amounts to
nothing more than correcting a clerical error or a slip. Likewise, correction
to the pinpoint citations in the footnotes from one spot to another in the
documentation that was before the Board is nothing more than correction of a
clerical error. Here as well, the corrections support the statements made by
the Board in the text of its decision.
[8]
Thus,
the amendments made by the Board from the first to second version of the
decision do not change its meaning or content in any material way.
The RPD was not Functus
[9]
The
doctrine of functus officio applies to decision-makers who lack
statutory authority to amend their decisions and operates so as to prevent a
decision-maker from changing a decision it has rendered. There are two
exceptions to the general rule that a tribunal cannot amend its decision: where
the decision-maker amends the decision to address a slip and where the decision-maker
amends the decision to correct an error in expressing its manifest intention (Chandler v
Alberta Association of Architects, [1989] 2 S.C.R. 848, 62 DLR (4th) 577
[Chandler]). While the doctrine of functus officio
applies to the RPD (Avci
v Canada (Minister of Citizenship and Immigration), 2003 FCA 359,
313 NR 307),
it is applied less strictly than in the case of a court decision as the policy
reason behind the doctrine – the need for finality – is of lesser concern where
there is no possibility of appeal (Chandler at para 77).
[10]
In
numerous cases, tribunals have been found to be entitled to make amendments or
clarifications much more significant than those made by the RPD in this case.
For example, in Capital District Health Authority v Nova Scotia Government
and General Employees Union, 2006 NSCA 85, 271 DLR (4th) 156, an interest
arbitrator was found to possess jurisdiction to amend his initial wage award to
clarify that catch-up payments were not to be made to those at the top of the
wage scale. Justice Cromwell, then of the Nova Scotia Court of Appeal, wrote
for the Court and described the issue that arose in that case as follows:
… the issue submitted to the board was compensation.
The board’s job was to settle the terms of the collective agreement of the
parties on this issue. Until it had done that, the board’s job is not finished.
The focus of the debate between the parties is whether, as the applicant
contends, the board’s supplemental award was simply finishing its job by making
more clear what had been its manifest intent in the main award or whether, as
the respondent submits … the board in effect changed its mind and altered its
initial award.
(at para 45)
The initial award had merely
ordered the employer to make catch-up payments to employees generally. The
supplemental award, which limited those payments to those who were not at the
top of the wage grid, was found to not run afoul of the functus doctrine.
[11]
To
similar effect, in Canadian National Railway Company v National
Transportation Agency (1989), 96 NR 378 (FCA), the agency was found to
possess jurisdiction to detail more precisely the types of documents it had
ordered disclosed in its initial decision on the point.
[12]
The
New Brunswick Court of Appeal considered what is captured by the “slip”
exception in Lodger’s International Ltd v O’Brien, 145 DLR (3d) 293, 45
NBR (2d) 342, which was relied upon by the Supreme Court of Canada in Chandler.
The New Brunswick Court stated (at para 29):
There is no doubt that a court can correct clerical
or mathematical errors and other minor slips or omissions in an order so long
as the alterations are confined to expounding its manifest intent […] and it is
equally clear that a similar rule applies to orders of administrative bodies
[13]
In
Nozem v Canada (Minister of Citizenship and Immigration), 2003 FC 1449 [Nozem],
the applicant was mistakenly given a notice of decision with respect to his
refugee claim that indicated that his application for protection had been
accepted. Two months later, the applicant received a full decision denying his
refugee claim. After reviewing the full record, Justice Lemieux concluded that
the Board was not functus officio when issuing the second decision
because the first notice of decision was issued by administrative error.
[14]
Similarly,
in Tinney v Canada (Attorney General), 2010 FC 605 at para 18,
[2010] FCJ No 744 [Tinney], Justice Zinn found that the Canadian Human
Rights Commission had merely sent a notification in error to a claimant
indicating that his complaint would be referred to the Canadian Human Rights
Tribunal, when in fact the Commission had reached a negative decision in his
file, and that it was open to the Commission to correct that error.
[15]
In
my view, the amendments the Board made in this case were in the nature of
correcting slips or clerical errors and, indeed, were less glaring than those
in the Nozem and Tinney cases. The applicant has not cited any
case where amendments like those made here were found to violate the functus
officio doctrine. Accordingly, the amendments fall within the first
exception to the functus doctrine. As a result, the applicant’s first
argument must be dismissed.
No Denial of
Natural Justice
[16]
As
noted, the applicant also argues that the Board’s decision should be set aside
because its reliance on outdated information violates the applicant’s right to
be informed of its case to meet.
[17]
There
are several problems with this argument. First, there is no evidence that any
materials other than those listed in the National Documentation Package were in
fact before the Board when it rendered its decision. It is possible that it
considered the country documentation in the record, and merely made a clerical
error (possibly through copying from a previous judgment that relied on an
earlier documentation package) in drawing up its formal judgment. Secondly, and
more fundamentally, there is nothing to demonstrate that if the Board had in
fact considered outdated documentation that it was in any way materially
different from that contained in the National Documentation Package it
disclosed to the applicant. As already noted, it would appear impossible for
this to have been the case since the Board did not alter its reasons in any
material way and the documentation before it supports its reasons. Third, as a
general principle, there is no denial of natural justice if the Board relies on
publicly available country documentation in reaching its decision, especially
where such documentation is not materially different from the documents it has
disclosed as part of the National Documentation Package. An analogy may be
drawn in this regard to decisions of this Court which have determined that PRRA
officers cannot be criticized for relying upon country documentation that is
publicly available but not specifically disclosed to a claimant (see e.g. Sinnasamy v
Canada (Minister of Citizenship and Immigration), 2008 FC 67 at
para 9, [2008] FCJ No 77; Manvalpillai v Canada (Minister of Citizenship and
Immigration), 2005 FC 584).
[18]
As
for the suggestion that the RPD adopted “boilerplate reasoning”, even if the
Board copied portions of its decision from an earlier RPD decision (which there
is no proof of its having done), the reasons given all relate to the
applicant’s claim and the situation in Liaoning Province. They therefore are
proper. In Cordova v Canada (Minister of Citizenship and Immigration),
2009 FC 309 at para 24, [2009] FCJ No 620 (Snider), Justice Snider rejected:
[…] the Applicant’s suggestion that the use of
“boilerplate passages” in the Board’s decision renders it unreasonable by
default. On the whole, the Board’s state protection analysis addresses the
correct question of whether a journalist such as the Applicant would be at
risk. It is self-evident that much of the analysis will be the same for any given
country. Provided that the “boilerplate” is based on the documentary evidence
and addresses the particular evidence and position of a claimant, the Board’s
repetition of certain passages from other decisions is not, in and of itself,
an error.
This reasoning applies equally in
this case.
[19]
Thus,
the applicant’s second argument likewise fails and accordingly this application
must be dismissed.
[20]
No
question for certification under section 74 of the Immigration and Refugee
Protection Act, SC 2001, c 27 was proposed and none arises in this case.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1.
This
application for judicial review of the RPD’s Decision is dismissed.
2.
No
question of general importance is certified.
3.
There
is no order as to costs.
"Mary J.L. Gleason"
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