Docket: IMM-5009-15
Citation:
2016 FC 939
Ottawa, Ontario, August 17, 2016
PRESENT: The
Honourable Mr. Justice Manson
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BETWEEN:
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DEJAN BOROVIC, SLAVICA
BOROVIC, DAMJAN BOROVIC, DARIJA BOROVIC
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Applicants
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and
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THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
I.
Introduction
[1]
The Applicants’ application is for leave and
judicial review of the decision of a Senior Immigration Officer [the Officer]
dated October 16, 2015, wherein their request for reconsideration of the refusal
of their application for permanent residence, dated December 20, 2013, was
refused.
II.
Background
[2]
The Principal Applicant, Dejan Borovic, came to
Canada on a work permit in April 2009. His wife, son and daughter followed in
December 2010. They made a claim for refugee status on or around December 2011,
based on Dejan Borovic’s fear of persecution if they returned to Serbia because
of his time spent in Germany during the Yugoslav wars.
[3]
There has been no decision on the Applicants’
refugee claim for over four years.
[4]
The Applicants applied for permanent residence
on humanitarian and compassionate [H&C] grounds on June 27, 2012. By
decision dated December 20, 2013, that application was refused. Leave to
challenge that refusal was granted by the Court. However, by Judgment dated
April 24, 2015, this Court dismissed the judicial review, finding that the
Applicants had failed to show that the H&C refusal was unreasonable (Borovic
v Canada (MCI), (24 April 2015), Toronto, IMM-197-14 (FC)).
[5]
In October 2015, the Applicants sent a request
for reconsideration of the H&C refusal. This request came six months after
the Court dismissed the judicial review and 22 months after the refusal of the
application for permanent residence.
[6]
By decision dated October 16, 2015, the
reconsideration request was refused. The Officer noted that the H&C
application had previously been refused and that the Federal Court had
dismissed the judicial review application. The Officer considered the
Applicants’ request to reconsider, along with their additional submissions, and
decided that the refusal stood.
III.
Issue
[7]
Did the Respondent err in law by failing to
provide reasons in refusing the Applicants’ request for reconsideration?
IV.
Standard of Review
[8]
The parties agree that the standard of review is
reasonableness.
V.
Analysis
[9]
The Applicants’ argument is that their request
for reconsideration must be considered as a distinct decision from the actual
decision on the H&C application, and that a “boiler
plate” remark by an officer in refusing to exercise discretion to
reconsider does not amount to reasonable reasons (D'Errico v Canada
(Minister of Human Resources and Skills Development), 2014 FCA 95; Bhuiyan
v Canada (Minister of Citizenship and Immigration), 2012 FC 117).
[10]
In other words, the statement of the Officer, in
the refusal letter of October 15, 2015, that “after
considering the request to reconsider and the additional submissions, the
initial decision to refuse your H&C application remains unchanged”,
is insufficient.
[11]
The Applicants also point the Court to the fact
that the Respondent has failed to hear their refugee claim in a timely manner,
and that the Applicants cannot access a new H&C application while the
refugee claim is pending because of a change in the H&C application process
that restricts parallel H&C and refugee protection applications. These
issues are not relevant to the application before me.
[12]
Finally, the Applicants point to the evidence
concerning the best interests of the children and the continued settlement of
the family as being relevant for the Officer to exercise his discretion to
reconsider the refusal of the H&C application.
[13]
However, as the Respondent rightfully argues,
the unusual factors in this case are that not only was the H&C application
refused by an officer in December 2013, but the judicial review of that refusal
by Justice Diner of this Court, in April 2015, upheld the refusal and dismissed
the judicial review.
[14]
Accordingly, the Applicants now seek judicial
review of the refusal to reconsider the original refusal, which was already
deemed reasonable by this Court in the decision of April, 2015.
[15]
There is no doubt that an immigration officer must
consider his or her discretion in reviewing a reconsideration request, but
absent a failure to recognize the existence of such a discretion by an officer,
the officer is free to exercise that discretion to reconsider, or to refuse to
do so. While the principle of functus officio does not bar a
reconsideration of a negative H&C determination (section 25 of the Immigration
and Refugee Protection Act, SC 2001, c-27), the officer’s obligation is
simply to consider, taking into account all relevant circumstances, whether to
exercise that discretion to reconsider or not (Canada (Minister of
Citizenship and Immigration) v Kurukkal, 2010 FCA 230 at paras 5-6; Rashed
v Canada (Minister of Citizenship and Immigration), 2013 FC 175 at paras
48-49).
[16]
Given both the original negative decision of an
officer on the Applicants’ H&C application and the confirmation of that
decision by this Court, it was reasonable for the Officer to refuse to exercise
his discretion to reconsider.
[17]
Moreover, there is no duty on the reviewing officer
to consider new evidence, as long as the officer does in fact make a
discretionary decision on whether to reopen the case or not (Noor v Canada
(Minister of Citizenship and Immigration), 2011 FC 308 at para 27).
[18]
I also agree with the Respondent that a
reconsideration request should not be used to reopen a final decision of this
Court through reconsideration of an earlier officer’s negative H&C
decision.
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