Docket: A-256-14
Citation:
2015 FCA 10
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CORAM:
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DAWSON J.A.
STRATAS J.A.
BOIVIN J.A.
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BETWEEN:
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FRANCISCO IVAN GIL ARANGO
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Appellant
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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
DAWSON J.A.
[1]
This is an appeal from a decision of the Federal
Court rendered in an application for judicial review pursuant to the Immigration
and Refugee Protection Act, S.C. 2001, c. 27. The appeal is before
us because the Federal Court certified the following question:
Once a PRRA officer has reached a final
decision, and that decision has been communicated to the applicant, can the
officer revisit that decision or does the doctrine of functus officio
apply?
[2]
The question arises in the following context.
[3]
After being notified of his eligibility to make
an application for a Pre-Removal Risk Assessment (PRRA) on January 15, 2013, the
appellant filed an application on January 30, 2013. The submissions in support
of the PRRA application were provided when due on February 14, 2013. In the fax
cover sheet that accompanied the submissions, counsel for the appellant advised
that an additional affidavit and supporting documents would be sent by courier at
an unspecified time. Counsel asked that the decision not be rendered until the
further documents were received.
[4]
A Senior Immigration Officer rendered a negative
decision in respect of the PRRA application on February 20, 2013. Thereafter:
i)
the appellant’s further documents were received
on February 21, 2013;
ii)
the Officer’s decision was served on the
appellant on February 22, 2013;
iii)
the Officer returned to work, noted the further
documents, reopened her decision and rendered supplementary reasons confirming the
negative PRRA decision on February 27, 2013;
iv)
an application for leave to commence an
application for judicial review of the initial decision was served and filed by
the appellant on February 27, 2013; and
v)
the Officer’s supplementary reasons were served
on the appellant February 28, 2013.
[5]
Subsequently, leave was granted to the appellant
to commence an application for judicial review.
[6]
For reasons cited as 2014 FC 370, a judge of the
Federal Court dismissed the appellant’s application for judicial review of the
Officer's decision and certified the question set out above.
[7]
Despite the able submissions of Mr. Crane, I am
of the view that the Judge correctly concluded that the Officer was not barred from
considering the further documents by operation of the doctrine of functus
officio. I reach this conclusion for the reasons given by the Judge.
[8]
On this appeal, the appellant raises an
additional, related issue: did the Officer breach the duty of fairness by
rendering her decision without waiting to receive the further documents that the
appellant said would be provided?
[9]
I begin consideration of this issue from the following
premises: procedural protections must be afforded in the context of the PRRA process
and a PRRA officer has the discretion to defer her or his decision in order to
wait for late filed or additional material.
[10]
Notwithstanding, in the present case I conclude
that the appellant failed to establish any breach of procedural fairness by the
Officer. I reach this conclusion on the following basis.
[11]
When the appellant was notified of his PRRA
eligibility on January 15, 2013 he was also advised that his PRRA submissions were
to be received by February 14, 2013 and that thereafter a decision could be
rendered. This is consistent with section 162 of the Immigration and Refugee
Protection Act Regulations, SOR/2002-227.
[12]
Nonetheless, the appellant did not file all of
his material by February 14, 2013. Instead, he requested an unspecified
extension of time in order to file the balance of the material, without giving
any explanation as to why all of the material could not be filed within the
specified period.
[13]
It is also a relevant consideration that at the
time of the Officer’s decision the appellant was in detention – a factor that
militated in favour of a timely decision on the PRRA application.
[14]
In these circumstances the Officer did not
breach the duty of fairness by rendering her decision on February 20, 2013.
[15]
It follows that I would dismiss the appeal. I
would answer the certified question as follows:
A PRRA officer may revisit or reconsider a final decision in
appropriate circumstances because the doctrine of functus officio does
not strictly apply in non-adjudicative administrative proceedings.
“Eleanor R. Dawson”
“I agree
David
Stratas J.A.”
“I agree
Richard Boivin J.A.”
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