Date: 20090703
Docket: IMM-309-08
Citation: 2009 FC 695
Ottawa, Ontario, July 3,
2009
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
KAMADCHY
SUNDARESWARAIYE GURUMOORTHI KURUKKAL
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Kamadchy Sundareswaraiye Gurumoorthi Kurukkal’s application for
permanent residence on humanitarian and compassionate grounds was refused
because he failed to provide a death certificate for his late wife when asked
to do so by the immigration officer assessing his application.
[2]
Mr. Kurukkal provided the death certificate a few days after being
notified of the negative decision, and asked that the decision be reconsidered
in light of the new evidence. The respondent refused to reopen or re-visit Mr.
Kurukkal’s H&C application, asserting that there was no power to do so, as
a result of the doctrine of functus officio.
[3]
The principle issue on this application for judicial review is whether
the doctrine of functus officio applies in the context of H&C
applications, so as to prevent an immigration officer from considering new
evidence. For the reasons that follow, I have concluded that the doctrine of functus
officio does not apply in the context of H&C decisions. As a
consequence, the application for judicial review will be allowed.
I. Background
[4]
Mr. Kurukkal is a 68 year old Tamil from the north of Sri Lanka, who
came to Canada on a visitor’s visa in 2001. He has one son in Canada, and two
daughters still living in Sri Lanka.
[5]
When the applicant applied for his visitor’s visa in 2001, he stated on
his application that his wife would not be accompanying him to Canada, because
she did not have a passport. Having a wife staying behind in Sri Lanka would
have assisted Mr. Kurukkal with his visa application, as it strengthened his
ties to that country, making it more likely that he would return home at the
end of his visit.
[6]
In contrast, in Mr. Kurukkal’s H&C application, he stated that he
was a widower, and that his wife had died in 2000. The inconsistency in the
information provided by Mr. Kurukkal with respect to his wife’s status was
quite understandably a cause for concern, and led the immigration officer to
ask him to produce a death certificate for his wife. This request was made on
August 17, 2007.
[7]
When no death certificate was received, the officer spoke to Mr.
Kurukkal’s son by telephone on October 12, 2007, asking where the certificate
was. Five days later, the officer followed up with a letter to Mr. Kurukkal,
confirming the request for a copy of the death certificate. By letter dated
October 29, 2007, Mr. Kurukkal’s son advised the officer that another 15 days
were needed to obtain the death certificate from Sri Lanka, and sought an
extension of time.
[8]
Fifteen days came and went, and no death certificate was provided to the
officer, nor was there a request for a further extension of time in which to
provide the certificate from either Mr. Kurukkal or his son. Consequently, on
November 26, 2007, the officer assessed Mr. Kurukkal’s H&C application, and
decided that it should be refused.
[9]
The officer’s decision was communicated to Mr. Kurukkal on December 14,
2007. Although additional reasons are cited in the officer’s notes, the only
reason given in the decision letter for refusing the application was Mr.
Kurukkal’s failure to satisfy the officer that he was in fact a widower. I
need not address the merits of this decision, as no application for judicial
review has been brought in relation to it.
[10]
Mr. Kurukkal says that he received a copy of the death certificate for
his wife by mail from Sri Lanka the following day. On December 18, 2007, Mr.
Kurukkal’s counsel wrote to the officer, explaining that the delay in producing
the certificate was the result of the on-going state of turmoil in Colombo.
Counsel enclosed a copy of the death certificate with the letter, and requested
that the refusal decision be reconsidered.
[11]
By letter dated January 9, 2008, Mr. Kurukkal’s request for
reconsideration was refused. As was noted earlier, the respondent took the
position that there was no power to reopen or re-visit Mr. Kurukkal’s H&C
application because of the doctrine of functus officio. No
consideration appears to have been given to the death certificate itself, as it
related to the merits of Mr. Kurukkal’s H&C application.
[12]
It is the decision refusing to reconsider the original H&C decision
that underlies this application.
[13]
Mr. Kurukkal sought a stay of his removal pending the determination of
his application for judicial review. The motion was dismissed, without written
reasons, although it appears from the record that the stay was refused because
of the Court’s finding in relation to the issue of irreparable harm. Mr.
Kurukkal was returned to Sri Lanka in March of 2008.
[14]
An affidavit filed by the respondent indicates that since returning to Sri
Lanka, Mr. Kurukkal has filed a further H&C application. Although there
is some confusion in the record as to precisely when the second H&C
application was filed, it is common ground that it was filed in the Spring of
2008.
[15]
While acknowledging that he has been able to file a further H&C
application, which includes a copy of his wife’s death certificate, Mr.
Kurukkal says that if he is required to apply from overseas, it could take up
to four years for his second application to be processed. He asserts that this
will cause him grave prejudice, as he says he has no home in Sri Lanka, and
that his country is currently a war zone. Mr. Kurukkal says that the
reconsideration of his inland H&C application would likely result in a much
faster decision.
II. Standard of Review
[16]
If applicable, the effect of doctrine of functus officio is that
a decision-maker will lose jurisdiction once a decision is made: see Brown and
Evans, Judicial Review of Administrative Action in Canada (Toronto:
Canvasback Publishing, 1998), at 12-99.
[17]
As a consequence, the question of whether an H&C officer has the
ongoing power to reconsider a decision once it has been made is a true question
of jurisdiction, as contemplated by Dunsmuir v. New Brunswick, 2008 SCC 9 at para. 59. As
such, the officer’s determination that the doctrine of functus officio
applies in the context of H&C decisions is reviewable on the standard of
correctness.
III. Analysis
[18]
I should note at the outset that the respondent has not argued that the
January 9, 2008 letter refusing to reconsider Mr. Kurukkal’s H&C
application was merely a courtesy letter, and was thus not a “decision” that
was amenable to judicial review. I take the respondent to have conceded that
the January 9, 2008 letter was indeed a fresh “decision” that is amenable to
judicial review.
[19]
Moreover, there is no suggestion that Mr. Kurukkal’s request for
reconsideration of his H&C application was made for a collateral purpose –
namely to extend the time for bringing an application for judicial review.
[20]
It should also be noted that the question of whether an immigration
officer is functus officio after rendering an H&C decision need only
be decided if the additional information adduced by Mr. Kurukkal was
significant enough to have potentially affected the outcome of a
reconsideration decision.
[21]
As was noted earlier, the only reason given in the decision letter for
refusing Mr. Kurukkal’s H&C application was his failure to produce a copy
of his wife’s death certificate. It follows that the certificate was clearly
an extremely important piece of evidence, which could well have resulted in a
different outcome, were the matter reconsidered.
[22]
As a consequence, it is necessary to decide whether the doctrine of functus
officio has any application in relation to decisions by immigration officers
in relation to H&C applications.
A. The Doctrine of Functus Officio
[23]
Before turning to address the question of whether the doctrine of functus
officio applies in the context of H&C decisions, it is helpful to start
by considering the nature and purpose of the doctrine. It is also helpful to
consider what the Courts have had to say in relation to its application in the
context of administrative decision-making.
[24]
The doctrine of functus officio provides that once a
decision-maker has done everything necessary to perfect his or her decision, he
or she is then barred from revisiting that decision, other than to correct
clerical or other minor errors. The policy rationale underlying this doctrine
is the need for finality in proceedings: Chandler v. Alberta Association of
Architects, [1989] 2 S.C.R. 848, at paras. 20-21.
[25]
The Supreme Court also noted in Chandler that the doctrine of functus
officio is not limited to judicial decisions, but can apply as well to
decisions of administrative tribunals. However, it may be necessary to apply
the doctrine in a more flexible and less formalistic fashion in the
administrative tribunal context, where, for example, a right of appeal may
exist only on a point of law. Indeed, the Court held that “Justice may require
the re-opening of administrative proceedings in order to provide relief which
would otherwise be available on appeal”: Chandler, at para. 21.
[26]
For the doctrine of functus officio to be engaged, it is
necessary that the decision in issue be final. In the context of judicial
decision making, a decision may be described as final when “... it leaves
nothing to be judicially determined or ascertained thereafter, in order to
render it effective and capable of execution, and is absolute, complete and
certain ...”. (G. Spencer Bower & A.K. Turner, The Doctrine of Res
Judicata 2d. ed. (London: Butterworths, 1969) at 132, as cited in Judicial
Review of Administrative Action in Canada.
[27]
With this understanding of the nature and purpose of the doctrine of functus
officio, I turn now to the examine the jurisprudence relating to the
applicability of the doctrine in relation to non-adjudicative immigration
decisions such as the H&C decision under consideration in this case.
B. The Federal Court Jurisprudence
[28]
A review of the Federal Court jurisprudence reveals that the question
of whether the doctrine of functus officio applies to those charged with
making non-adjudicative immigration decisions such as H&C decisions is one
that arises with some regularity. However, the findings on this point are
somewhat divided, with two divergent lines of authority having developed as to
whether immigration officers such as H&C officers have the power to
reconsider decisions on the basis of new evidence.
[29]
Both lines of authority will be considered in turn, commencing with a
review of the cases that find that the doctrine of functus officio does
not apply in cases such as this.
(i) Functus Officio Does Not Apply to Decisions
of Immigration Officers
[30]
The first of these lines of authority is exemplified by the Court’s
decision in Nouranidoust v. Canada (Minister of Citizenship
and Immigration), [1999] F.C.J. No. 1100, which held the doctrine of functus
officio does not apply in relation to non-adjudicative immigration
decisions.
[31]
Nouranidoust involved the decision of an immigration officer who found
that an individual was not entitled to landing pursuant to the deferred removal
orders class (DROC) regulations [SOR/94-681]. The question to be decided was whether
an immigration officer could reconsider that decision on the basis of new
evidence.
[32]
Although the nature of the application in issue was a little different,
the facts in Nouranidoust are quite similar to those in the present
case. Mr. Nouranidoust’s application for landing was refused because he had
been unable to produce a passport or other travel document. Shortly after
receiving the negative decision, Mr. Nouranidoust was able to obtain a passport
from the Iranian Embassy, and forwarded to the immigration officer, who
confirmed the original refusal. Justice Reed was then left to decide whether,
in the circumstances, the immigration officer was functus officio, or
had the authority to reconsider the application for landing.
[33]
Justice Reed commenced her analysis by
adopting the Court’s observation in Chan v. Canada (Minister of
Citizenship and Immigration), [1996] 3 F.C. 349 (T.D.) that there was
nothing in the Immigration Act, R.S.C., 1985, c. I-2, that dealt with
whether a visa officer could review decisions already made. In Chan,
the Court had stated that “I would take this silence, however, not to be a
prohibition against reconsideration of decisions. Rather, I think that the visa
officer has jurisdiction to reconsider his decision, particularly when new
information comes to light”: Chan, at para. 28.
[34]
Consideration was also given to the decision in Soimu v. Canada
(Secretary of State) (1994), 83 F.T.R. 285 (F.C.T.D.), where Justice
Rothstein held that as the Immigration Act was silent on the question of
whether visa officers could review decisions that had been made, it appeared
that the officer would not be functus in relation to an application for
reconsideration.
[35]
In concluding that the doctrine of functus officio did not
apply in the case of immigration officers, Justice Reed had regard to the
comments of the Supreme Court in Chandler, previously cited. In
particular, she referred to Justice Sopinka’s admonition that the application of the doctrine must be more flexible and less
formalistic in relation to the decisions of administrative tribunals: Nouranidoust,
at para. 13.
[36]
Justice Reed concluded her analysis by
stating that:
24 I am not prepared, in the absence of a Federal Court
of Appeal decision to the contrary, to conclude that the immigration officer
had no such authority. It is clear that immigration officers and visa officers,
as a matter of practice, often reconsider their decisions on the basis of new
evidence (see Waldman, supra). As I read the jurisprudence, I think the need to
find express or implied authority to reopen a decision in the relevant statute
is directly related to the nature of the decision and the decision-making authority
in question. Silence in a statute with respect to the reopening of a decision
that has been made on an adjudicative basis, consequent on a formal hearing,
and after proof of the relevant facts may indicate that no reopening is
intended. Silence in a statute with respect to the reopening of a decision that
is at the other end of the scale, a decision made by an official pursuant to a
highly informal procedure, on whom no time limits are imposed, must be assessed
in light of the statute as a whole. Silence in such cases may not indicate that
Parliament intended that no reconsideration of the decision by the relevant
official be allowed. It may merely mean that discretion to do so, or to refuse
to do so was left with the official.
25 As noted, the Chandler decision states that the principle of functus officio
should be applied flexibly in the case of administrative decisions since
justice may require the reopening of those decisions. I am persuaded that
Parliament's silence in the case of applications for landing, when the
individual has been found eligible for such because he falls under DROC, was
not intended to restrict the immigration officer from reopening a file when the
officer considers it in the interests of justice to do so.
[37]
Other Judges of this Court have come to a
similar conclusion in relation to various types of immigration applications
involving informal processes similar to that involved in H&C applications:
see, for example, Chan v. Canada, and Soimu v. Canada,
both previously cited; Tchassovnikov et al. v. Canada (Minister of
Citizenship and Immigration) (1998), 152 F.T.R. 144; Kherei v. Canada
(Minister of Citizenship and Immigration), [2000] F.C.J. No. 1383; McLaren
v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 618.
[38]
Moreover, as the Court observed in Kherei, the literature
supports this less technical view: see, for example, Waldman, Immigration
Law and Practice, (Second Ed.) at paras. 11:20 to 11:29.
(ii) Functus Officio Does Apply to Decisions of
Immigration Officers
[39]
There is also a substantial body of case law going the other way. One
of the leading cases in this regard is the decision in Dumbrava v. Canada
(MCI) (1995), 101 F.T.R. 230.
[40]
Dumbrava involved an application for permanent residence
in Canada. After the applicant received the officer’s original refusal
decision, the applicant sought reconsideration of that decision on the basis
that it was “wrong in law”. On judicial review, the Court identified the “real
issue” on the application as being whether the visa
officer had the authority to reconsider her earlier decision in the manner that
she did: at para. 18.
[41]
In this regard, the Court stated that:
[A]bsent an
express grant of jurisdiction, it is doubtful that a decision-maker has the
power to reconsider a prior decision on new grounds and exercise his or her
discretion anew. The decision-making powers of a visa officer are statutory
and, as such, they must be found in the statute. While I have no doubt that
slips, typos and obvious errors can be corrected after a decision has been
rendered, the discretion of a decision-maker is, in my view, fully exhausted
once the discretionary authority to decide has been exercised in the manner
contemplated by statute. As such a decision-maker cannot pronounce more than
once on the same matter. [Dumbrava, at para. 19, footnote omitted]
[42]
The Court went on to observe that once
the visa officer rejected the applicant’s application, the officer did not have
the jurisdiction to render a further decision reconsidering the earlier
decision. As a consequence, the application for judicial review was “without
object”.
[43]
A number of decisions have followed the
reasoning in Dumbrava in relation to immigration applications involving
informal processes similar to that involved in H&C applications: see, for
example, Jiminez v. Canada (MCI) (1998), 147 F.T.R. 199; Duque v.
Canada (Minister of Citizenship and Immigration), [2007] F.C.J. No. 1762; Dimenene
v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 1525; Phuti v. Canada (Minister of
Citizenship and Immigration), [2000] F.C.J. No. 1233; Brar v. Canada (M.C.I.), [1997] F.C.J. No. 1527).
C. The Federal Court of Appeal Jurisprudence
[44]
In Selliah v. Canada (Minister of Citizenship and
Immigration), [2004] F.C.J. No. 1134, Justice Blanchard was asked to
certify the following question:
Where an immigration officer has made a decision in respect
of … a humanitarian and compassionate application, is an officer functus,
such that further evidence may not be considered to determine if it might lead
the officer to reach a different conclusion?
Justice Blanchard held that the
Officer's failure to consider the further information in issue in that case
would not have materially affected her ultimate decision. As a consequence, the
question could not have been determinative of an appeal and was not certified.
[45]
Justice Blanchard did certify a different question in Selliah,
however, and the matter went on appeal: see Selliah v. Canada
(Minister of Citizenship and Immigration), [2005] F.C.J. No. 755. In its
brief reasons, the Federal Court of Appeal dealt with the reconsideration
issue, stating that:
4 As for
the new evidence offered to the officer after the decision had been made, but
before notice of that decision was received by the applicant, we are not
inclined to interfere. Though not expressly provided for in the legislation, an
application for reconsideration on the basis of that new evidence could have
been made by the applicant following receipt of the notice of the decision.
5 It is
therefore, not necessary for us to decide the functus officio issue in
this case.
[my emphasis]
[46]
Thus, although the Federal Court of Appeal expressly declined to deal
with the functus issue in Selliah, the reasons in that case seem
to suggest that reconsideration of an H&C decision may indeed be possible.
[47]
Two other decisions of the Federal Court of Appeal warrant brief
consideration, as they are referred to in a number of the decisions cited
earlier in these reasons. These are Park v. Canada (Minister
of Citizenship and Immigration), [2001] F.C.J. No. 848 and Nazifpour v. Canada
(Minister of Citizenship and Immigration), [2007] F.C.J. No. 179.
[48]
In Park, an individual was advised that an immigrant visa would
be issued. However, before the visa was actually issued, it was determined
that the applicant was inadmissible to Canada. The Court found that the only
exercise of power authorized by the statute was to issue or refuse a visa.
Given that no statutory power had been exercised at the time that the applicant
was advised that the visa would issue, it followed that the doctrine of functus
officio had no application. Given the differences in the facts and
statutory basis of the Park matter, I am of the view that this decision
is of limited assistance in this case.
[49]
Nazifpour involved the power of the Immigration Appeal Divisions
of the Immigration and Refugee Board to reopen an appeal. The Immigration
and Refugee Protection Act specifically authorized the reopening of appeals
in certain specified situations. The question for the Court was whether
appeals could be reopened in other situations.
[50]
Much of the Court’s attention in Nazifpour was taken up with a
consideration of the interpretation of the statutory provision in issue, and
with its legislative history, in order to determine Parliament’s intent. Once
again, this decision is readily distinguishable from the present situation.
D. Which Line of Authority Should be Followed?
[51]
Given the fundamental disagreement in the jurisprudence in relation to
the applicability of the doctrine of functus officio to informal,
non-adjudicative immigration applications such as applications for H&C
exemptions, how is one to determine which approach should be followed?
[52]
In Judicial Review of Administrative Action in Canada, Brown and
Evans suggest that a pragmatic and functional analysis should be carried out in
order to ascertain whether the doctrine of functus officio should be
applied in the context of a particular type of decision-making process.
[53]
That is, one must weigh “any unfairness to the individual that might
arise as a result of the re-opening, against the public harm that might be
caused by preventing the agency from discharging its statutory mandate if it
could not reopen”. In addition, the Court must consider “the statutory
mandate, the breadth of the discretion conferred on the decision-maker, and the
availability of other relief, such as a right of appeal”: Judicial Review of
Administrative Action in Canada, at para. 12:6221.
[54]
In other words, the task for the Court is to determine whether “the
benefits of finality and certainty in decision-making outweigh those of
responsiveness to changing circumstances, new information and second thoughts”:
Judicial Review of Administrative Action in Canada, at para. 12:6221.
[55]
The starting point for the Court’s analysis must be the relevant
legislative provisions. Neither section 25(1) of the Immigration and
Refugee Protection Act, nor the Immigration and Refugee Protection Regulations
provide explicit guidance, as both are silent on the reconsideration question.
[56]
Also relevant is subsection 31(3) of the Interpretation Act,
R.S.C. 1985, c. I-21, which provides that “Where a power is conferred or a duty
imposed, the power may be exercised and the duty shall be performed from time
to time as occasion requires”. According to Brown and Evans, the effect of
this provision is that “unless the legislation precludes a further decision or
the decision is subject to some form of estoppel, non-adjudicative decisions
may be reconsidered and varied from time to time: see Judicial Review of
Administrative Action in Canada, at para. 12:6100.
[57]
There are a number of considerations that militate in favour of finding
that immigration officers can reconsider negative H&C decisions in
appropriate circumstances, as well as other considerations that lead to a
contrary conclusion.
[58]
The first issue to consider is the fact that neither IRPA nor the
Regulations provide an express power of reconsideration on immigration officers
in the context of H&C applications. It does not, however, necessarily
follow from this legislative silence that there is no power of reconsideration
in relation to H&C applications.
[59]
In this regard, I adopt the comments of Justice Reid in Nouranidoust,
previously cited, where she observed that although it may be necessary for
there to be an express statutory power to reconsider decisions arrived at
through an adjudicative process, the same could not be said of decisions
arrived at through more informal processes, by officials on whom no time limits
are imposed.
[60]
According to Justice Reid, legislative silence
in this latter category of cases may not reflect an intention by Parliament
that no reconsideration of the decision be allowed, but may instead mean that the
discretion to do so, or to refuse to do so, was left with the official: Nouranidoust,
at para 24.
[61]
The significance of the kind of functions carried out by administrative
tribunals insofar as the applicability of the doctrine of functus officio
was also recognized by the Federal Court of Appeal in Herzig v. Canada
(Industry), [2002] F.C.J. No. 127. There the Court seemed to limit the
application of the doctrine of functus officio to those administrative tribunals
that carry out adjudicative functions, stating that:
The principle of functus officio holds that, as a
general rule, where a final decision has been rendered by an administrative
tribunal acting in an adjudicative capacity, the matter is concluded and
no amendment can be made to the decision in the absence of a right of appeal.
[at para. 16, my emphasis]
[62]
A very broad discretion is conferred on immigration officers under
subsection 25(1) of IRPA. This provision confers discretion on
immigration officers to allow them the flexibility to approve deserving cases
not anticipated in the legislation: see IP 5, the CIC Manual dealing with Immigrant
Applications in Canada made on Humanitarian or Compassionate Grounds, at
section 2.
[63]
Moreover, unlike judicial or adjudicative tribunal processes, the
H&C process is quite informal. This suggests that there be greater
procedural flexibility than in the case of more formalized or adjudicative
decision-making processes.
[64]
Insofar as the availability of other relief such as a right of appeal is
concerned, there is no right of appeal from the decision of an immigration
officer in relation to H&C decisions. Where there is a right of appeal,
new evidence can be put before the appellate court, provided that the party
seeking to adduce such evidence can meet the relevant test.
[65]
However, in the case of H&C decisions, the only recourse that an
unsuccessful applicant has is by way of judicial review in this Court, and then
only with leave of the Court. Generally speaking, a reviewing court will limit
its consideration to the material that was before the original decision-maker,
and will not consider new evidence. This limitation on the admissibility of new
evidence would tend to militate in favour of a finding that functus officio
should not apply in relation to H&C decisions.
[66]
That said, a negative H&C decision will not necessarily be the last
word on an individual’s ability to stay in Canada on H&C grounds. Unlike a
judgment or tribunal decision that finally determines an individual’s rights,
it is always open to an individual to file a further H&C application, after
the first is refused. Indeed, Mr. Kurukkal has himself taken advantage of this
opportunity.
[67]
Nevertheless, the substantial filing fees and significant processing
times may make this an unattractive option for many people, and limit its
effectiveness as a way in which to overcome a negative decision.
[68]
Moreover, while recognizing that there is always a benefit to finality
in the decision-making process, it must also be recognized that the nature of
an H&C decision is fundamentally different than, for example, a civil
judgment or a tribunal decision that resolves a dispute between two or more
parties. In these latter types of cases, the successful party or parties may
rely on court or tribunal rulings in the conduct of their affairs. These
individuals may then be detrimentally affected in the event that the court or
tribunal decision is subsequently reconsidered and changed.
[69]
In contrast, there is no true lis inter partes, or live
controversy or dispute, between parties in the H&C context. A decision on
an H&C application will likely only have a direct effect on the applicant
or applicants themselves. No one else is likely to rely on an H&C decision
to his or her detriment.
[70]
It is true that H&C applicants bear the onus of demonstrating that
they would suffer unusual, undeserved or disproportionate hardship if required
to apply for permanent residency from outside Canada. Applicants are obligated
to “put their best foot forward” in their applications, and they omit pertinent
information from their applications at their peril: see, for example, Owusu
v. Canada (Minister of Citizenship and Immigration) [2004]
F.C.J. No. 158, at para. 8, and Kisana v. Canada (Minister of
Citizenship and Immigration), 2009 FCA 189, at para. 45.
[71]
It does not, however, follow from this that an officer can never
consider additional information provided by an applicant after the initial
H&C decision has been made. Rather, these cases simply stand for the
proposition that there is no obligation on an immigration officer assessing an
H&C application to go back to an applicant in an effort to ferret out
additional information supporting the application, when that information has
not been provided by the applicant him- or herself.
[72]
Finally, there is a concern that the ability of immigration officers to
reconsider negative H&C applications could lead to an abuse of the
immigration system. That is, removals officers are often asked to defer a
removal because a decision is outstanding in a pending H&C application.
Indeed, stays of removal are sometimes granted by this Court where the H&C
decision is expected imminently. The ability of applicants to provide
additional evidence, and to request reconsideration of their H&C applications,
could potentially interfere with the ability to remove individuals without
status in Canada as soon as is reasonably practicable.
[73]
This concern could, however, be addressed if, upon receiving a request
for consideration, immigration officers promptly considered the materiality and
reliability of the evidence in question. The officers would also have to
consider whether the evidence in question was truly “new”, or could have been
obtained earlier with the exercise of reasonable diligence. An immigration
officer should also be able to assess whether a request to reopen an H&C
application was being made for bona fide reasons, or was being sought
for a collateral purpose, such as to support a request to defer an imminent
removal from Canada.
IV. Conclusion
[74]
Having carefully weighed the various considerations discussed in the preceding
paragraphs, I have concluded that the need for flexibility and responsiveness
to changing circumstances and new information in the H&C assessment process
outweighs the desirability of having finality and certainty in the
decision-making process. I would note that conclusion is consistent with the
teachings of the Federal Court of Appeal in Selliah, previously cited,
at para. 4.
[75]
I have further concluded that the doctrine of functus officio
does not apply to the informal, non-adjudicative decision-making process
involved in the determination of H&C applications. As a consequence, I
find that the immigration officer erred in refusing to consider the death
certificate provided by Mr. Kurukkal in this case, and the application for
judicial review is allowed.
V. Certification
[76]
The
question of whether an H&C officer is functus officio after
rendering a decision in relation to an application for a Humanitarian and
Compassionate exemption is a question of law that is not only dispositive of
this case, but transcends the interests of these parties.
[77]
Neither party has proposed a question for certification in this case.
However, in light of the unsettled nature of the law on this point, I am
satisfied that those involved with the immigration process would benefit from
the views of the Federal Court of Appeal on this question. As a consequence, I
will certify the following question:
Once a
decision has been rendered in relation to an application for a humanitarian and
compassionate exemption, is the ability of the decision-maker to reopen or
reconsider the application on the basis of further evidence provided by an
applicant limited by the doctrine of functus officio?
JUDGMENT
THIS COURT ORDERS
AND ADJUDGES that:
1. This application for judicial review is allowed,
and the matter is remitted to a different immigration officer for
re-determination in accordance with these reasons. In addition to the other
information filed by Mr. Kurukkal in connection with his first H&C
application, the officer is directed to consider the death certificate for Mr.
Kurukkal’s wife, and to decide what if any weight should be attributed to it;
and
2. The
following question is certified:
Once a
decision has been rendered in relation to an application for a humanitarian and
compassionate exemption, is the ability of the decision-maker to reopen or
reconsider the application on the basis of further evidence provided by an
applicant limited by the doctrine of functus officio?
“Anne
Mactavish”
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