Date: 20080723
Docket: IMM-4769-07
Citation: 2008 FC 899
Toronto,
Ontario, July 23, 2008
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
ANITA
MARIA SALEWSKI
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
[1]
This is an
application pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (Act) for judicial review of a
decision of Officer Matsui (Officer) of the Department of Citizenship
and Immigration Canada (CIC or the Department), dated November 7, 2007
(Decision) to recall and cancel the permanent resident card issued to Ms. Anita
Maria Salewsksi (Applicant).
BACKGROUND
[2]
The Applicant, a
citizen of Germany, became a permanent resident of Canada in 1958. She left Canada in 1968 following the break-up of
her marriage. There is no indication that the Applicant returned to Canada at any time from 1968 to 2007. The Applicant entered Canada in February 2007. It is not clear whether she entered Canada as a visitor or a permanent resident. However, on June 19,
2007 she sought to extend her visitor’s status.
[3]
On June 4, 2007, the
Case Processing Centre in Sydney, Nova Scotia (CPC Sydney) received an
application from the Applicant for a permanent resident card. The Applicant alleges
that during the application process, she informed CIC as follows:
- she
resided in Canada for ten years (from 1958 to 1968);
- she
has three Canadian born children;
- she
returned to Germany in June 1968 for personal reasons
and remained there until February 5, 2007;
- she
now intends to remain in Canada to be with her children, who are residents
and citizens of Canada; and
- she
requests that the card be issued on Humanitarian and Compassionate
(H&C) grounds.
[4]
On
June 22, 2007, the Applicant’s application was returned because her guarantor
was not an authorized guarantor. Her application, with a proper guarantor, was
returned to CPC Sydney on July 13, 2007. On
August 16, 2007, the Applicant was issued a permanent resident card and, as a
result, she terminated her residency in Germany and relocated to Canada.
[5]
In September 2007,
CIC discovered that no residency determination had been made with respect to
the Applicant and that, according to CIC, the residency card had been issued in
error. In a letter dated September 21, 2007, the Applicant was informed by
Officer Currie of CPC Sydney that her residency card had been issued in error
and that she should return the card to CIC officials. In response to this
letter, the Applicant sent a letter to CIC dated September 27, 2007, in which
she refused to return the card and requested clarification of CIC’s reasons for
recalling the card.
[6]
By letter dated
September 25, 2007, CIC requested information and material from the Applicant
in support of a new application for a permanent resident card. In response, the
Applicant sent a second copy of her letter dated September 27, 2007.
[7]
Having failed to
return her permanent resident card, the first letter from CIC dated September
21, 2007 was followed by a letter dated November 7, 2007 from Officer Matsui of
the CIC Permanent Resident Card Unit in Vancouver.
This second letter constitutes the Decision under review in the present
application.
[8]
To date, the
Applicant has not returned the permanent resident card to CIC.
DECISION
UNDER REVIEW
[9]
In the letter dated
November 7, 2007, Officer Matsui requested that the permanent resident card
issued to the Applicant be returned on the basis that the card is the property
of Her Majesty. The Officer noted that Regulation 53(2) of the Immigration
and Refugee Protection Regulations, S.O.R. 2002/227 (Regulations) provides
that “[a] permanent resident card remains the property of Her Majesty in right
of Canada at all times and must be returned to the Department at the
Department’s request.” The letter also advised the Applicant that the 5-year
permanent resident card would be cancelled and rendered null and void.
[10]
In the
letter, Officer Matsui also
expressly stated that Regulation 60, which deals with revocation of a permanent
resident card, does not apply in the Applicant’s situation. He further
requested that the Applicant provide the documents and information requested in
the letter dated September 25, 2007 so that a residency determination could be
made.
ISSUES
[11]
The issues raised in this
application are:
1.
Was the Decision to
recall, cancel and render null the Applicant's permanent resident card
contrary to the principles of natural justice and procedural fairness?
2.
Was the Decision to
recall, cancel and render null the Applicant's permanent resident card within
the jurisdiction of the Officer?
3.
Was the Officer functus
officio?
RELEVANT STATUTORY PROVISIONS
[12]
Permanent residents
must satisfy the following residency obligations set out in Section 28 of the
Act:
28. (1) A permanent resident must comply
with a residency obligation with respect to every five-year period.
(2) The following provisions govern the
residency obligation under subsection (1):
(a) a permanent resident complies with the
residency obligation with respect to a five-year period if, on each of a
total of at least 730 days in that five-year period, they are
(i) physically present in Canada,
(ii) outside Canada accompanying a Canadian citizen who is their
spouse or common-law partner or, in the case of a child, their parent,
(iii) outside Canada employed on a full-time basis by a
Canadian business or in the federal public administration or the public
service of a province,
(iv) outside Canada accompanying a permanent resident who
is their spouse or common-law partner or, in the case of a child, their
parent and who is employed on a full-time basis by a Canadian business or in
the federal public administration or the public service of a province, or
(v) referred to in regulations providing for other means
of compliance;
(b) it is sufficient for a permanent resident to
demonstrate at examination
(i) if they have been a permanent resident for less than
five years, that they will be able to meet the residency obligation in
respect of the five-year period immediately after they became a permanent
resident;
(ii) if they have been a permanent resident for five
years or more, that they have met the residency obligation in respect of the
five-year period immediately before the examination; and […].
|
28. (1)
L’obligation de résidence est applicable à chaque période quinquennale.
(2) Les
dispositions suivantes régissent l’obligation de résidence :
a) le
résident permanent se conforme à l’obligation dès lors que, pour au moins 730
jours pendant une période quinquennale, selon le cas :
(i) il est effectivement présent au Canada,
(ii) il accompagne, hors du Canada, un
citoyen canadien qui est son époux ou conjoint de fait ou, dans le cas d’un
enfant, l’un de ses parents,
(iii) il travaille, hors du Canada, à temps
plein pour une entreprise canadienne ou pour l’administration publique
fédérale ou provinciale,
(iv) il accompagne, hors du Canada, un
résident permanent qui est son époux ou conjoint de fait ou, dans le cas d’un
enfant, l’un de ses parents, et qui travaille à temps plein pour une
entreprise canadienne ou pour l’administration publique fédérale ou
provinciale,
(v) il se conforme au mode d’exécution prévu
par règlement;
b) il
suffit au résident permanent de prouver, lors du contrôle, qu’il se
conformera à l’obligation pour la période quinquennale suivant l’acquisition
de son statut, s’il est résident permanent depuis moins de cinq ans, et, dans
le cas contraire, qu’il s’y est conformé pour la période quinquennale
précédant le contrôle; […]
|
[13]
Section 28(2)(c) provides that an
exception from the residency requirements of the Act may be granted where there
are humanitarian and compassionate grounds to warrant such an exception:
28. […]
(2) (c) a determination by an officer
that humanitarian and compassionate considerations relating to a permanent
resident, taking into account the best interests of a child directly affected
by the determination, justify the retention of permanent resident status
overcomes any breach of the residency obligation prior to the determination.
|
28. […]
(2) c) le constat par l’agent que des circonstances d’ordre humanitaire
relatives au résident permanent — compte tenu de l’intérêt supérieur de
l’enfant directement touché — justifient le maintien du statut rend
inopposable l’inobservation de l’obligation précédant le contrôle.
|
[14]
Section 31 of the Act provides that a
permanent resident shall be provided with a document indicating their status
and, unless an officer determines otherwise, a person in possession of a status
document is presumed to have the status indicated:
31. (1) A permanent resident and a
protected person shall be provided with a document indicating their status.
(2) For the purposes of this Act, unless an
officer determines otherwise
(a) a person in possession of a status document
referred to in subsection (1) is presumed to have the status indicated; and
(b) a person who is outside Canada and who
does not present a status document indicating permanent resident status is
presumed not to have permanent resident status. […]
|
31. (1)
Il est remis au résident permanent et à la personne protégée une attestation
de statut.
(2) Pour l’application de la présente loi et sauf
décision contraire de l’agent, celui qui est muni d’une attestation est
présumé avoir le statut qui y est mentionné; s’il ne peut présenter une
attestation de statut de résident permanent, celui qui est à l’extérieur du
Canada est présumé ne pas avoir ce statut. […]
|
[15]
The applicable Regulations in this case
are Regulations 53(2) and 60 :
53.(2) A permanent resident card remains the property of Her Majesty in
right of Canada at all times and must be returned to the Department on the
Department's request.
…
60.
A permanent resident card is revoked if
(a) the permanent
resident becomes a Canadian citizen or otherwise loses permanent resident
status;
(b) the permanent
resident card is lost, stolen or destroyed; or
(c) the permanent resident is deceased.
|
53.(2) La carte de résident permanent demeure en
tout temps la propriété de Sa Majesté du chef du Canada et doit être renvoyée
au ministère à la demande de celui-ci.
…
60. La
carte de résident permanent est révoquée dans les cas suivants :
a) le
titulaire obtient la citoyenneté canadienne ou perd autrement son statut de
résident permanent;
b) la
carte de résident permanent est perdue, volée ou détruite;
c) le
titulaire est décédé.
|
ANALYSIS
Standard of Review
[16]
The first issue raised
is one of procedural fairness, which is a question of law reviewable on a
standard of correctness. With respect to the second and third issues raised by
the Applicant, these issues are also, in my view, reviewable on a standard of
correctness because they involve questions of law. If the Officer acted without
jurisdiction or was functus officio, the Decision should be set aside.
1. Was the Decision to recall,
cancel and render null the Applicant's permanent resident card contrary to the
principles of natural justice and procedural fairness?
[17]
The Applicant submits
that CIC has not informed her of the details of the alleged error which caused
the permanent resident card to be issued; nor has CIC provided details
regarding who caused the card to be issued. Further, the Applicant
submits that CIC gave the Applicant no warning of the Decision to recall,
cancel and render null her permanent resident card.
[18]
I
do not agree with the Applicant that the Decision contains insufficient detail
regarding the error made by CIC which led to the issuance of the Applicant’s
permanent resident card. In the letter dated November 7, 2007, Officer Matsui
made reference to the letter sent by Officer Currie, dated September 27, 2007, wherein
it was clearly stated that the Applicant did not meet the residency
requirements and that a residency determination would have to be made. In my
view, the error and the reason for recalling the card were sufficiently clear
in the letter to the Applicant. I
also find that failing to provide the name of the Officer who issued the card
in error does not constitute a breach of procedural fairness or natural
justice. The issue here is whether the Officer’s Decision to recall, cancel and
render void the Applicant's permanent resident card was contrary to law. The
reasons contained in the Officer’s Decision, in my view, are sufficiently clear
and do not constitute a breach of procedural fairness.
[19]
With
respect to the Applicant’s allegation that the Officer failed to warn the
Applicant of his Decision, I do not find that this amounts to a breach of
procedural fairness or natural justice. I stress that the Officer’s Decision
was to recall, cancel and render void the Applicant’s permanent resident card
and was not a decision pertaining to the Applicant’s permanent resident status,
or lack thereof.
[20]
Recently
in Ikhuiwu v. Canada (Minister of
Citizenship and Immigration), 2008 FC 35 at para. 19, Justice de
Montigny held that the mere possession of a permanent resident card does not in
and of itself confer status as a permanent resident:
19.
Turning first to the permanent resident
card, the legislative scheme under the IRPA makes it
clear that the mere possession of a permanent resident card is not conclusive
proof of a person's status in Canada. Pursuant to section 31(2) of the IRPA,
the presumption that the holder of a permanent resident card is a permanent
resident is clearly a rebuttable one. In this case, it is clear that the
permanent resident card, which was issued in error after it was determined by
the visa officer in Nigeria that the applicant had lost his permanent residence
status, could not possibly confer legal status on him as a permanent resident,
nor could it have the effect of restoring his permanent resident status which
he had previously lost because he didn't meet the residency requirements under
section 28 of the IRPA. There is no provision in the
IRPA or the Regulations
which suggests that the mere possession of a permanent residence card, which
was improperly issued, could have the effect of restoring or reinstating a
person's prior permanent resident status.
[21]
As
provided by the Act, a permanent resident may only lose his or her status in
one of the following prescribed ways:
46. (1) A person loses permanent resident
status
(a) when they become a Canadian citizen;
(b) on a final determination of a decision made
outside of Canada that they have failed to comply with the residency
obligation under section 28;
(c) when a removal order made against them comes
into force; or
(d) on a final determination under section 109 to
vacate a decision to allow their claim for refugee protection or a final
determination under subsection 114(3) to vacate a decision to allow their
application for protection.
(2) A person who
ceases to be a citizen under paragraph 10(1)(a) of the Citizenship
Act, other than in the circumstances set out in subsection 10(2) of that
Act, becomes a permanent resident.
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46. (1) Emportent perte du statut de résident permanent les faits suivants :
a)
l’obtention de la citoyenneté canadienne;
b) la
confirmation en dernier ressort du constat, hors du Canada, de manquement à
l’obligation de résidence;
c) la
prise d’effet de la mesure de renvoi;
d)
l’annulation en dernier ressort de la décision ayant accueilli la demande
d’asile ou celle d’accorder la demande de protection.
(2) Devient résident permanent quiconque perd la citoyenneté
au titre de l’alinéa 10(1)a) de la Loi sur la citoyenneté, sauf
s’il est visé au paragraphe 10(2) de cette loi.
|
[22]
In the present
circumstances, the Officer’s letter of November 7, 2007 clearly states that his
Decision was only to recall, cancel and render void the Applicant's permanent
resident card and that, after receiving the card, a residency determination
would be made and humanitarian and compassionate factors would be considered if
the Applicant failed to meet the enumerated residency requirements.
[23]
The
Respondent submits that, since the card is the property of Her Majesty the
Queen, there is no procedural fairness requirement to seek submissions prior to
requesting the return of the card. In the alternative, the Respondent argues
that even if there was a duty to hear submissions from the Applicant prior to
seeking the return of the card, the Applicant was given an opportunity, and
availed herself of that opportunity prior to the Decision at issue being made.
[24]
The
Applicant says that her real concern is that, as far as she knows, a legitimate
decision to grant her permanent residence status has been made and the card
issued as a consequence. She says that the evidence offered by the Respondent
that the Court is dealing with an administrative error is not sufficient to
undermine a presumption that she is entitled to the card. She says that the
Minister’s actions in requesting a return of the card are just as consistent
with the Minister having made a positive decision on permanent residence (which
the Minister is now attempting to reverse) as they are with the offered
justification of administrative error.
[25]
I
have reviewed the evidence carefully and I cannot agree with the Applicant on
this crucial point. It may be that there is no affidavit evidence from the
person actually responsible for the mistake at CPC Sydney, but there is no
reason not to accept the explanation from Officer Matsui regarding what has
occurred in this case.
[26]
Officer
Matsui says that he has examined the file and that it was the Vegreville office
that contacted CPC Sydney because Vegreville had noticed that a permanent
resident card had been issued to the Applicant despite the fact that she did
not meet the residence requirements. Officer Matsui then opines that “CPC
Sydney then contacted our office because they noted that no residency
determination had ever been made and that therefore the card had been issued in
error.” (paragraph 18 of affidavit of Glenn Matsui).
[27]
Officer
Matsui also swears that he has “personal knowledge of the facts and the matters
herein deposed to save and except where the same are based on information and
belief and whereso stated I believe them to be true.” (paragraph 1)
[28]
The
Applicant says that, because there is no affidavit from CPC Sydney by someone
actually involved with the mistake, the Court cannot rely upon what Officer
Matsui says in this regard. But the Applicant has had every opportunity to
cross-examine Officer Matsui on these issues and has chosen not to. What is
more, the Applicant presents the Court with no real evidence that what occurred
was anything more than an administrative error. In the end, the Court is left
to balance Officer Matsui’s explanation – and other confirmatory materials on
file – against the Applicant’s speculative hypothesis that an authorized
decision regarding the Applicant’s entitlement to permanent residence could
have been made in Sydney and that the Minister has more to deal with here than
administrative error.
[29]
I
think I have to prefer the Respondent’s evidence on this issue. There is
nothing to suggest, in my view, that Officer Matsui has not provided the Court
with a true picture of what occurred or that the Applicant is anything more
than the victim of an administrative error. I have to find that no
determination has ever been made regarding the Applicant’s present residency
status.
[30]
In
my view, the governing legislation makes it clear that Parliament did not
intend to confer statutory procedural protections upon a person whose card is
recalled. Regulation 53(2) of the Regulations
expressly provides that a permanent resident card is the property of Her
Majesty the Queen:
53. […]
(2) A permanent resident card remains the
property of Her Majesty in right of Canada at all times and must be returned
to the Department on the Department's request.
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53. […]
(2) La carte de résident permanent demeure en tout temps la
propriété de Sa Majesté du chef du Canada et doit être renvoyée au ministère
à la demande de celui-ci.
|
[31]
Neither the Act nor
the Regulations provide that a holder of a permanent resident card is to be
provided an opportunity to make submissions before his or her card is recalled.
Instead, Regulation 53(2) explicitly states that the card “remains the property
of Her Majesty...at all times and must be returned to the
Department on the Department’s request” [my emphasis].
[32]
However, as
recognized by the Supreme Court of Canada in Cardinal v. Director of Kent
Institution, [1985] 2 S.C.R. 643 at p. 653 [hereinafter Director of Kent
Institution], “there is, as a general common law principle, a duty of
procedural fairness lying on every public authority making an administrative
decision which is not of a legislative nature and which affects the rights,
privileges or interests of an individual” (see also Baker v. Canada
(Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817). In Knight
v. Indian Head
School Division No. 19,
[1990] 1 S.C.R. 653 at p. 668, citing Director of Kent Institution, the
Supreme Court added that there “may be a general right to procedural fairness,
autonomous of the operation of any statute, depending on consideration of three
factors which have been held by this Court to be determinative of the existence
of such a right.” These three factors are: (i) the nature of the decision to be
made by the administrative body in question; (ii) the relationship between that
body and the individual; and (iii) the effect of that decision on the
individual’s rights.
[33]
In the present case,
the nature of the Decision is purely administrative and, although it is final
with respect to the particular card issued to the Applicant, it is not a final
decision with respect to the Applicant’s status as a permanent resident.
Further, if she submits another application for permanent residence status, as
the Applicant has been invited to do in the present case, the Applicant may
obtain permanent residence status and, with that, a permanent resident card.
With respect to the second factor, there exists no “relationship” per se
between the Applicant and the Department. Finally, a right to procedural
fairness will exist only if the decision is a significant one and has an
important impact on the individual. The effect of the Decision in the present
case cannot be said to be significant. It does not deny the Applicant any
right, privilege or interest. As Regulation 52(3) makes clear, a holder of a
permanent resident card does not have an unfettered right to maintain his or
her card and, as Justice de Montigny made clear in Ikhuiwa, the mere
possession of the card does not confer permanent resident status. Instead, the
Regulation expressly states that the card remains the property of Her Majesty
and must be returned upon request by the Department. For these reasons,
I find that no procedural requirements were required before deciding to recall,
cancel, and render null the Applicant's permanent resident card on the basis of
administrative error, other than have already been extended to the Applicant in
this case. In addition, the Applicant has been given the opportunity to state
her case.
2. Was the Decision to recall,
cancel and render null the Applicant's permanent resident card within the
jurisdiction of the Officer?
[34]
The Applicant argues
that the Decision made by CIC officers was outside their jurisdiction since,
according to the Applicant, there exists no statutory power authorizing an
officer to recall and cancel a permanent resident card in these circumstances.
The Applicant submits that the governing Act and Regulations prescribe
circumstances in which a card may be revoked and contain provisions explicitly empowering
officials to cancel documents or terms and conditions. However, there exist no
explicit provisions empowering any official to cancel or render null a
permanent resident card.
[35]
The
Respondent argues that, pursuant to Regulation 53(2), which provides that a
permanent resident card remains the property of Her Majesty and must be
returned at the Department’s request, the Decision by the Officer to seek the
return of the card was within the Officer’s jurisdiction. The Respondent
stresses that, contrary to the express right to recall a permanent resident
card conferred by the Regulations upon CIC, there is no lawful authority for
the Applicant to refuse to return the card.
[36]
I agree with the
Respondent’s submissions on this issue. The Regulations give the express
authority to the Department to recall a permanent resident card in Regulation
53(2). Although the governing Act and Regulations do not provide that an
officer may cancel or render void a previously issued permanent resident card,
the Regulations do grant the authority to revoke a permanent resident card
(Regulation 60) and set out the requirements that must be met for the issuance
of a new permanent resident card by an officer (Regulation 59). Where a
permanent resident card has been issued in error, as in the present
circumstances, I do not find that canceling or rendering the card void is
beyond the jurisdiction of an officer or, more generally, the issuing
department. I do not think that it was Parliament's intent to confer the
authority upon the Department to recall a permanent resident card but to limit
the Department's power to cancel or render null a permanent resident card,
especially where the card has been issued in error and the person to whom it
was issued has refused to return it. For these reasons, I find that the Officer
did not act beyond his jurisdiction by recalling, canceling and rendering void
the Applicant's permanent resident card in this case. The Applicant has no
entitlement to the card and she is simply refusing to return it.
3. Was the Officer functus
officio?
[37]
The
Applicant argues that the
Officer’s Decision was
contrary to the principle of functus officio. According to the
Applicant, the issuance of the resident card to the Applicant was, in the
absence of cogent evidence to the contrary, proof that an officer of CIC
decided to waive the usual residency requirements for issuing permanent
residence cards and issued the card on H&C grounds.
[38]
The Applicant also
contends that the card was properly issued and submits that CIC officials have
on more than one occasion stated that it was only upon a review of her
application that they decided that another application for issuance should be
made. The Applicant argues that the Respondent has failed to provide evidence
that the card was issued in circumstances where it is void or a nullity from
the beginning. Mere evidence that the card was issued in an extraordinary way,
suggests the Applicant, is not evidence that it was issued without authority to
avoid the operation of the principle of functus officio. Further, the
Applicant argues that there is no evidence before the Court to suggest that the
decision to issue the card was taken by someone who is not an officer, or an
officer not acting with authority to waive the residency requirements and issue
the card based on H&C grounds. To the contrary, the Applicant argues that
there is evidence that the card was issued as a result of a decision taken by
someone at CPC Sydney where the application was received and initially
considered and that “there are immigration officers there.” In the Applicant’s
view, the evidence suggests that one or more CIC officials have had second
thoughts about the decision to issue the card and that, in these circumstances,
the principle of functus officio should apply.
[39]
The
Respondent argues that there has been no “decision” that the Applicant is a
permanent resident. Thus, as the permanent resident card was issued without
such a decision being made, this case falls within one of the exceptions to the
doctrine of functus officio, that is, administrative error. In support
of its argument on this point, the Respondent
relies on Nozem v. Canada (Minister of Citizenship and
Immigration) (2003), 244 F.T.R. 135, 2003 FC 1449
[hereinafter Nozem]. In that case, an applicant received two notices of
decision concerning his refugee claim. The first decision granted his refugee
application and the second decision refused his claim for refugee protection. He
sought to quash the negative finding on the basis that the tribunal was functus,
having already issued a positive decision. The Court disagreed and held at
paragraph 32 as follows:
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.
[40]
The Respondent argues
that the present case is analogous to Nozem, since there is no
determination on the record that the Applicant met the residency requirement;
nor could there be since the Applicant was outside of Canada for virtually the entire five-year period prior to her
application. The Respondent also submits that there is no record that the
Applicant was granted H&C relief from the residency requirements contained
in section 28 of the Act.
[41]
The Respondent
further submits that the evidence supports the contention that the Applicant's
card was issued in error. The process for considering applications for
permanent resident cards is set out in the affidavit of Officer Matsui. He
deposes that if a person does not clearly meet the residency requirements set
out in the legislation, the file is transferred to a local office which, in
this case, was Vancouver. He also deposes that only he and one
other person in the Vancouver Office have the authority to grant H&C relief
from the residency requirements of the Act. Further, according to Officer
Matsui, the Immigration Services Clerks who distribute the permanent resident cards
do not have the delegated authority to grant H&C relief.
[42]
The Respondent argues
that Officer Matsui's affidavit establishes that the normal course for
determining whether the residency obligations were met was not followed in the
present case. Further, the record shows that CPC Sydney was clearly of the view
that the card was issued in error. An e-mail from the client services unit in Sydney to the Vancouver permanent resident unit states as
follows:
The
following clients [sic] [permanent resident] card application should
have been referred to your office for residency. The client has been outside
the country for over 5 yrs. A [permanent resident] card was requested in error
and given to the client last month…The card needs to be recalled and a residency
determination needs to be done... .
[43]
The Respondent argues
that there has been no exercise of jurisdiction by CIC on the issue of whether
the Applicant meets the residency requirements (it is conceded she does not),
because there is no indication on the record that a calculation of residency
was done by CIC at the time the permanent resident card was requested. Further,
there is no indication that H&C relief from the provisions of section 28 of
the Act was considered or granted by anyone at CIC, or specifically by anyone
with the required delegated authority. Thus, in the Respondent's view, there
was also no decision with respect to whether sufficient H&C grounds exist
for the Applicant to be exempted from the residency requirements. As no
jurisdiction was ever exercised, the Respondent submits, it is open to the
Minister to now deal with the question of whether the requirements of the Act
and Regulations are met.
[44]
Finally, the
Respondent submits that the Applicant's interpretation of the Act would mean
that, once a decision on admissibility is made, the question of a person's
admissibility to Canada could never be revisited even where new information
came to light or a mistake was made. The Respondent submits that such an
interpretation is not only inconsistent with the scheme of the Act, which
allows for reports of inadmissibility of permanent residents (section 44), but
it is also inconsistent with prior decisions of this Court and the Federal
Court of Appeal where it has been held that visa officers may revisit decisions
where new information comes to light (see Chan v. Canada (Minister of
Citizenship and Immigration), [1996] 3 F.C. 349 (F.C.T.D.) [hereinafter Chan];
Mauger v. Canada (Minister of Citizenship and Immigration) (1980), 119
D.L.R. (3d) 54 (F.C.A.)).
[45]
The doctrine of functus
officio was considered by the Supreme Court of Canada in Chandler v.
Alberta Association of Architects, [1989] 2 S.C.R. 848 [hereinafter Chandler], wherein Justice Sopinka, writing for
the majority, noted the following at page 860:
The general rule
that a final decision of a court cannot be reopened derives from the decision
of the English Court of Appeal in In re St. Nazaire Co. (1879), 12 Ch.
D. 88. The basis for it was that the power to rehear was transferred by the
Judicature Acts to the appellate division. The rule applied only after the
formal judgment had been drawn up, issued and entered, and was subject to two
exceptions:
1. where there had been a slip in drawing
it up, and,
2. where there
was an error in expressing the manifest intention of the court. See Paper
Machinery Ltd. v. J. O. Ross Engineering Corp., [1934] S.C.R. 186.
[46]
In that case, Justice
Sopinka (as he then was) held that the doctrine applied to administrative
bodies as well as to the courts, but he added the following qualification at page
862:
…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.
Accordingly, the principle
should not be strictly applied where there are indications in the enabling
statute that a decision can be reopened in order to enable the tribunal to
discharge the function committed to it by enabling legislation…..
[47]
This passage was
considered by this Court in Chan, supra, wherein Justice Cullen
(as he then was), in the context of the former Immigration Act, stated
at paragraphs 27-28:
27. ...I understand this decision to mean
that administrative decision-making, because it is more flexible and less
formalistic than judicial decision-making, can be "re-opened" in the
interests of justice where the enabling statute contemplates reconsideration of
a decision.
28. Does the Immigration Act
contemplate that a visa officer can reconsider his decision? There is nothing
in the statute that deals with whether a visa officer may review decisions
already made. 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. One can well imagine a situation opposite the one in the case
at bar. What if the applicant was initially denied her visa because the officer
considered her to be a member of the Sun Yee On triad? Could she not have
brought new information to light, asking the visa officer to reconsider his
decision? If the new information was persuasive, I have little doubt that the
visa officer would have jurisdiction to issue a new decision, granting a visa.
In my view, the same logic applies to the case at bar. The visa officer, upon
receiving information that the applicant was a member of an inadmissible class,
had jurisdiction to reconsider his earlier decision and revoke her visa. To
squeeze the administrative decisions of visa officers into the same functus
officio box that is imposed on judicial decision-makers would, in my view,
not accord with the role and duties of visa officers.
[48]
I have already said
what I think the Respondent’s evidence establishes with regards to what occurred
in this case, and there is no need to repeat my conclusions here. Consequently,
I have to agree with the Respondent on this point. No decision on permanent
residence has been made in relation to the Applicant.
[49]
Like the former Immigration Act, the
current Act does not preclude an officer from re-opening a decision to issue a
permanent resident card; nor does the Act provide that an officer may do so. I
adopt the analysis of Justice Cullen, above, and find the doctrine of functus
officio does not apply to the case at bar. It is clear from the Decision
and the evidence before me that the permanent resident card was issued in error
and, therefore, the exception to the doctrine of functus officio applies
in the present case. Following the Supreme Court of Canada’s decision in Chandler, supra, the error in issuing the card
to the Applicant without conducting the residency determination, or considering
the H&C factors that may warrant an exception to these requirements, should
not, on these facts, preclude the Minister from re-opening the decision to
issue a permanent resident card to the Applicant.
[50]
None
of this is to suggest that the consequences of the administrative error made in
this case are not relevant to any final determination regarding the Applicant’s
residency status. There is nothing to suggest on the facts before me that the
Applicant has not acted in good faith at all material times. Any problems that
may have resulted from the error will be addressed in an H&C determination
and that decision will be subject to the usual procedures for judicial review.
[51]
On
the narrow issue before me concerning the Decision of Officer Matsui, however,
I have to dismiss the application for the reasons given.
[52]
Counsel
are requested to serve and file any submissions with respect to certification
of a question of general importance within seven days of receipt of these
Reasons for Judgment. Each party will have a further period of three days to
serve and file any reply to the submission of the opposite party Following
that, a Judgment will be issued.
“James
Russell”