Docket: IMM-4342-16
Citation:
2017 FC 707
Toronto, Ontario, July 24, 2017
PRESENT: The
Honourable Mr. Justice Russell
BETWEEN:
|
CRAIG ANTONIO
WILLIAMS
|
Applicant
|
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]
This is an application under s 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA] for judicial
review of the decision of an officer at Immigration, Refugees and Citizenship
Canada in Etobicoke [Officer], dated September 30, 2016 [Decision], which
refused the Applicant’s application for permanent residence under the Spouse or
Common-Law Partner in Canada Class [Spousal Class].
II.
BACKGROUND
[2]
The Applicant is a 42-year-old citizen of Saint
Vincent and the Grenadines who has resided in Canada since July 15, 2008. He
met his wife and sponsor [Sponsor], Maymytty Claramouth Zasvetta, on June 21,
2009. They began cohabitation on September 12, 2009, and married on February
12, 2011.
[3]
On November 27, 2012, the Applicant filed an application
for permanent residence under the Spousal Class. He was determined eligible for
permanent residence and was requested to provide additional information by
letter dated November 4, 2013; however, the Applicant did not respond and was
informed by letter dated May 12, 2014 that he was required to leave Canada by
November 3, 2014.
[4]
On September 4, 2014, the Applicant filed a
second application for permanent residence under the Spousal Class. The
application was confirmed complete in a letter from Citizenship and Immigration
Canada [CIC] Mississauga dated February 14, 2016. Subsequently, the Applicant
and his Sponsor were requested by letter from CIC-Etobicoke dated March 4, 2016
to attend an interview on March 15, 2016 [March 15 Interview].
[5]
The Applicant claims that at the March 15
Interview, a supervisor was not satisfied that the Applicant resided at the
address that was on the identity documents. The supervisor informed the
Applicant that further investigation was required and the interview would be rescheduled
within two weeks.
[6]
On May 12, 2016, the Applicant and his Sponsor
were requested by letter from CIC-Etobicoke to attend an interview on May 26,
2016 [May 26 Interview]. The Applicant claims that at the May 26 Interview, the
officer could not find his file. Subsequently, a different officer informed the
Applicant and his Sponsor that his file was still being reviewed and the
Applicant would not be landed that day.
[7]
On September 14, 2016, the Applicant and his
Sponsor were requested by letter from CIC-Etobicoke to attend an interview on
September 29, 2016 [September 29 Interview]. At this interview, the Applicant
and his Sponsor were interviewed separately regarding the application.
III.
DECISION UNDER REVIEW
[8]
In a Decision sent to the Applicant dated September
30, 2016, the Officer refused the Applicant’s application for permanent residence
under the Spousal Class.
[9]
In the letter, the Officer stated that the
Applicant had failed to satisfy him that he was in an on-going, genuine
relationship that had not been entered into for the purpose of primarily
acquiring status or privilege under the IRPA. Accordingly, the
application was refused.
[10]
In the reasons for the Decision, the Officer
referred to discrepancies between the answers of the Applicant and his Sponsor
during the Interview, most notably the matter of his Sponsor’s education. Although
the application had included a letter from the North American College that
confirmed the Applicant’s Sponsor had been enrolled in the Food Service Worker
Program on a full-time basis from July to November 2014, the Applicant had no
knowledge that she had attended school since they moved in together in 2009.
Upon questioning, the Applicant stated he forgot that she attended school
because he was more concerned with daily stresses such as rent money. The
Applicant also assumed that his Sponsor was studying in the veterinary field
because that had been her previous career prior to arrival in Canada; however,
the Applicant’s Sponsor had stated she wanted to become a certified chef. The
Applicant explained that he had not known of the details of her career
ambitions. The Officer found that both explanations for the discrepancies were implausible.
Consequently, the Officer had serious concerns with the bona fides of
the relationship between the Applicant and his Sponsor and refused the
application.
IV.
ISSUES
[11]
The Applicant submits that the following are at
issue in this proceeding:
A.
Did the Officer ignore evidence when concluding
that the marriage was not genuine and was entered into for immigration
purposes?
B.
Was the decision from CIC-Mississauga dated
February 14, 2016 functus officio?
V.
STANDARD OF REVIEW
[12]
The Supreme Court of Canada in Dunsmuir v New
Brunswick, 2008 SCC 9 [Dunsmuir] held that a standard of review
analysis need not be conducted in every instance. Instead, where the standard
of review applicable to a particular question before the court is settled in a
satisfactory manner by past jurisprudence, the reviewing court may adopt that
standard of review. Only where this search proves fruitless, or where the
relevant precedents appear to be inconsistent with new developments in the
common law principles of judicial review, must the reviewing court undertake a
consideration of the four factors comprising the standard of review analysis: Agraira
v Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 at para
48.
[13]
This Court has held that the determination of
whether a marriage is genuine is a question of mixed fact and law, which
attracts a reasonableness standard: see Bercasio v Canada (Minister of
Citizenship and Immigration), 2016 FC 244 at para 17.
[14]
The second issue, concerning whether an officer
has the jurisdiction to review an application for permanent residence after
inviting an applicant to a landing interview, or is barred from doing so by the
doctrine of functus officio, is a question of law and is reviewable
under the correctness standard: Phan v Canada (Minister of Citizenship and
Immigration), 2014 FC 1203 at para 26; Salewski v Canada (Minister of
Citizenship and Immigration), 2008 FC 899 at para 16.
[15]
When reviewing a decision on the standard of
reasonableness, the analysis will be concerned with “the
existence of justification, transparency and intelligibility within the
decision-making process [and also with] whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law.” See Dunsmuir, above, at para 47, and Canada
(Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 59. Put another
way, the Court should intervene only if the Decision was unreasonable in the
sense that it falls outside the “range of possible,
acceptable outcomes which are defensible in respect of the facts and law.”
VI.
STATUTORY PROVISIONS
[16]
The following provisions of the Immigration and
Refugee Protection Regulations, SOR/2002-227 [Regulations] are
relevant in this proceeding:
Bad faith
|
Mauvaise foi
|
4 (1) For the purposes of these
Regulations, a foreign national shall not be considered a spouse, a
common-law partner or a conjugal partner of a person if the marriage,
common-law partnership or conjugal partnership
|
4 (1)
Pour l’application du présent règlement, l’étranger n’est pas considéré comme
étant l’époux, le conjoint de fait ou le partenaire conjugal d’une personne
si le mariage ou la relation des conjoints de fait ou des partenaires
conjugaux, selon le cas :
|
(a) was entered into primarily for the purpose of acquiring any
status or privilege under the Act; or
|
a) visait principalement l’acquisition d’un
statut ou d’un privilège sous le régime de la Loi;
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(b) is not genuine.
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b) n’est pas authentique.
|
…
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[…]
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Member
|
Qualité
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124 A foreign national is a member of
the spouse or common-law partner in Canada class if they
|
124
Fait partie de la catégorie des époux ou conjoints de fait au Canada
l’étranger qui remplit les conditions suivantes :
|
(a) are the spouse or common-law partner of a sponsor and cohabit
with that sponsor in Canada;
|
a) il est l’époux ou le conjoint de fait
d’un répondant et vit avec ce répondant au Canada;
|
(b) have temporary resident status in Canada; and
|
b) il détient le statut de résident
temporaire au Canada;
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(c) are the subject of a sponsorship application.
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c) une demande de parrainage a été déposée à
son égard.
|
…
|
[…]
|
Requirements for sponsor
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Exigences : répondant
|
133 (1) A sponsorship application
shall only be approved by an officer if, on the day on which the application
was filed and from that day until the day a decision is made with respect to
the application, there is evidence that the sponsor
|
133 (1)
L’agent n’accorde la demande de parrainage que sur preuve que, de la date du
dépôt de la demande jusqu’à celle de la décision, le répondant, à la
fois :
|
…
|
[…]
|
(k) is not in receipt of social assistance for a reason other than
disability.
|
k) n’a pas été bénéficiaire d’assistance
sociale, sauf pour cause d’invalidité
|
VII.
ARGUMENT
A.
Applicant
(1)
Evidence
[17]
The Applicant argues that the Officer ignored
significant evidence of the genuineness of the relationship and focused instead
on one discrepancy from the September 29 Interview. For example, the Applicant
had included evidence of his Sponsor’s name change to include his surname,
letters of support from friends, cohabitation since 2009, and photos of the
wedding. Additionally, the Applicant and his Sponsor had given identical
answers to over 20 questions during the September 29 Interview. However, the
Officer focused on the fact that the Applicant did not know about a three-month
course that his Sponsor attended in 2014 [the schooling issue]. The notes from
the September 29 Interview demonstrate that a variety of topics were discussed,
yet the Decision only mentions the schooling issue.
[18]
In his submissions, the Applicant argues that
the Officer ignored evidence and failed to explain how the schooling issue,
which dates back to March 2014, overrides the rest of the evidence that
supports the genuineness of the relationship; namely, the other answers in the September
29 Interview and supporting documentation. As this Court has repeatedly found,
decision-makers must consider the totality of the evidence and not keep silent
in regards to significant evidence on material issues: Kalsi v Canada
(Citizenship and Immigration), 2016 FC 442 at para 21; Nijjar v Canada
(Citizenship and Immigration), 2012 FC 903 at para 31. In the present case,
the Officer ignored evidence such as the supporting documentation and the rest
of the September 29 Interview. This focus on minor inconsistencies at the
expense of other relevant evidence is a significant error: Doraisamy v
Canada (Citizenship and Immigration), 2012 FC 1053 at para 60.
[19]
Moreover, since the Applicant had received a
positive assessment from an officer at CIC-Mississauga in which he was approved
for landing, the Applicant claims that the Officer had a duty to explain why
the concerns regarding the genuineness of the relationship outweighed the
outcome of the CIC-Mississauga decision.
[20]
Finally, the Applicant argues that the Officer
also ignored the approval of the Applicant’s first application for permanent
residence in 2013, which also supports the genuineness of the relationship.
(2)
Functus officio
[21]
The Applicant submits that officers erred by
refusing to land him on March 15, 2016 and May 26, 2016; instead, he was
scheduled for an interview on September 29, 2016.
[22]
The Applicant claims that on February 14, 2016,
he was advised by letter from an officer at CIC-Mississauga that the
application was complete and that he would receive a landing interview. On
March 4, he was advised via letter that the application had been processed and
he would be landed on March 15. The letter stated that the Applicant was
required to present original identity documents, two permanent resident
card-sized photos, his Sponsor’s photo identification, and proof of address for
finalization. These requirements were intended to ensure that the couple were
still living together, not to allow for reassessment of the genuineness of the
relationship. Yet, at the March 15 Interview, the Applicant was asked questions
about his identification documents and advised that additional evidence was
required. Despite this information, the Applicant never received a follow-up
letter except to schedule another landing interview.
[23]
Consequently, the Applicant argues that, since
there was nothing regarding the documentation presented at the March 15
Interview to warrant further concerns about the application, the officer erred
by refusing to land the Applicant and cancel the interview. The application had
been assessed as compliant with the legislative requirements and the
relationship had been determined to be genuine, which is indicated by the
subsequent transfer of the file to CIC-Etobicoke for finalization. There was no
evidence to justify overturning CIC-Mississauga’s decision, which was functus
officio, having been made by an officer at CIC-Mississauga who reviewed the
entire file.
[24]
The Applicant further argues that the same error
was repeated at the May 26 Interview, when the Applicant was told that the
review of his file had not been completed despite the fact that it had been two
months since the March 15 Interview. Again, the Applicant submits that the
decision to refuse to land him on May 26, 2016, despite his meeting all the
legislative requirements was an error.
[25]
Finally, the Applicant claims that it is
extremely concerning to have his file reviewed by at least six officers: the
officer in Mississauga; the officer and supervisor at the March 15 Interview;
the two officers at the May 26 Interview; and the Officer at the September 29 Interview.
The Applicant submits that the number of reviewing officers makes it difficult
to understand who made the final Decision.
B.
Respondent
[26]
The Respondent submits that the Decision is
reasonable. The Officer considered all of the evidence and determined that the
application could not succeed. The reasons for the Decision reflect that all of
the relevant factors were considered.
(1)
Legislative Framework
[27]
Under s 124(a) of the Regulations, a
member of the Spousal Class is the spouse of a sponsor who is cohabiting with
that sponsor. Section 4 of the Regulations states that a foreign
national will not be considered a spouse if the marriage is not genuine and was
entered into primarily for the purpose of acquiring any status or privilege
under the IRPA.
[28]
Section 5.36 of the Operational Manual IP-8 [IP
8] provides that officers may interview applicants to assess the authenticity
of an applicant’s relationship with their sponsor and to review relevant
documents.
(2)
Evidence
[29]
The Respondent submits that the Officer
considered the totality of the evidence. It was reasonable for the Officer to
expect that both the Applicant and his Sponsor would have substantially
consistent accounts of important facts and issues regarding how each of them
spent their day and of their future plans. Moreover, the Applicant has not
demonstrated that the Officer ignored evidence or that the findings in the
Decision were not open for the Officer to make based on the record.
[30]
The Respondent disagrees that the Officer failed
to conduct a global assessment or focused on irrelevant considerations. The
notes from the September 29 Interview demonstrate that the Officer was fully
aware of all the answers and evidence provided by the Applicant and his Sponsor
during the September 29 Interview and the reasons clearly explain the factors
that led to the refusal of the application. The fact that the reasons do not
contain all of the elements that the Applicant would have preferred does not
constitute a reviewable error.
[31]
Additionally, reasons are not an independent
ground of judicial review: Dunsmuir, above, at paras 47, 51, 57. The
Officer assigned reasonable weight to the inconsistent and contradictory
answers in the assessment of the marriage. Assessment of evidence is a factual
matter within the specific expertise and discretion of a reviewing officer. As
long as the evidence supports the finding, the Court should not re-weigh the
evidence. In the present case, the Applicant did not satisfy the Officer with
clear, convincing and cogent evidence that, on a balance of probabilities, the
marriage was genuine. The reasons are adequate because the Officer stated the
factors that led to the conclusion that the marriage was not genuine. The
Respondent submits that the nature of the questions and conduct of the Officer
were appropriate.
(3)
Functus officio
[32]
The Respondent also takes the position that the
decision to invite the Applicant and his Sponsor for an interview in September
2016 does not constitute a reviewable error. The doctrine of functus officio
only applies to final decisions; there was no final decision in this case because
the Applicant was not landed. Immigration officers are not functus officio
until the visa is issued or refused. Accordingly, the officer who lands the
Applicant must be satisfied that the criteria were met. See Ali et al v
Canada (Citizenship and Immigration), 2012 FC 710 at para 29 [Ali]; Brysenko
v Canada (Citizenship and Immigration), [2000] FCJ No 1443 at para 6 [Brysenko].
C.
Applicant’s Further Argument
(1)
Functus officio
[33]
The Applicant further submits that, contrary to
the Respondent’s reliance on IP 8, the highlighted section does not apply to
the present case. As indicated in the February 14 letter, the Applicant was not
initially scheduled for a further interview. Instead, he and his Sponsor were
given a landing appointment in which he was supposed to receive his permanent
residence papers. However, it was after this appointment that an additional
interview was scheduled.
[34]
The Applicant also disagrees that Ali,
above, is applicable to the present case. In Ali, the applicant
submitted an overseas refugee application that was approved until an officer
noticed that the individuals in the photos submitted for the medical exams were
different than the individuals in the photos on file and a further interview
was scheduled. The Court decided that since the initial interview was an “intermediate” decision that was only part of the
selection process, it was not a final decision and functus officio did
not apply: Ali, at para 25. Since the present case is an inland
application, Ali is not relevant. Likewise, Brysenko, above, is
not helpful to the Respondent because it is also an overseas decision.
[35]
In the present case, the Applicant was informed
on February 14, 2016 that the “processing of [the]
application [had] been completed” and he was advised to bring identification
documentation. Even if this was not a final decision and functus officio did
not apply, there is no evidence that justifies the Officer to deny the
Applicant landing on March 15. The Respondent has not submitted evidence to
demonstrate why the Officer had reason to second-guess the Mississauga finding
on the genuineness of the relationship. Consequently, the Applicant submits
that the Decision lacks transparency.
(2)
Evidence
[36]
The Applicant further argues that the reasons in
the Decision are not transparent or intelligible. The Officer failed to explain
why more weight was assigned to the inconsistency on the schooling issue over
the positive and consistent answers that constituted the majority of the
Interview. In Momi v Canada (Citizenship and Immigration), 2017 FC 50 at
paras 11-12 [Momi], the Court concluded that the decision-maker erred in
not explaining how overwhelmingly favourable answers and supporting
documentation were insufficient to overcome minor discrepancies. Like Momi,
the Applicant argues that the other evidence in his application was either not
considered at all or, if it was, there is no explanation as to why it was not
sufficient to overcome the discrepancy on one issue regarding the Sponsor’s
schooling.
D.
Respondent’s Further Argument
[37]
The Respondent further submits that Ali,
above, is applicable to the present case. Contrary to the Applicant’s argument,
Justice Mactavish did not distinguish between inland and overseas decisions: Ali
at para 23.
[38]
Moreover, it is clear that a final decision had
not been rendered in the Applicant’s application in the letter of February 14:
IMPORTANT: You and your family members, if
any, will be required to present original identification documents(s) to
the Canada Immigration Centre at your appointment. A final decision concerning
the granting of permanent residence status will be made at that time. If
permanent residence is granted, the name that will appear on the confirmation
of the permanent resident document is your name as it appears on your passport
or identity documents.
[Emphasis in original]
[39]
The Respondent submits that the letter is clear
that a final decision on the application had not been made, but a decision
would be made following the appointment. The decision to grant an application
for permanent residence is a discretionary one and it is incumbent on the
officer who lands the applicant to be satisfied that the criteria have been
met.
VIII.
ANALYSIS
[40]
As the Decision made clear, the spousal
application was refused on the sole ground that the applicant appeared to be
unaware of the Sponsor’s education and career ambitions. He appeared to have no
knowledge of the Sponsor’s having attended school since the couple had moved in
together, and he could not say what the Sponsor intended to study when she went
back to school.
[41]
The Officer appears to have been amazed that the
Applicant “could not recall his wife attending school
for over 3 months on a full-time basis” and that he did not know “of her future plan to study to become a certified chef.”
The Officer found the Applicant’s explanations for his lack of knowledge in
this regard to be implausible.
[42]
Taken in isolation, it does indeed seem strange
that a cohabitating husband does not know that his wife has been attending
school for over 3 months, or that he does not know what she intends to study
when she goes back to school. However, inattentive spouses are not unknown, and
it was incumbent upon the Officer to assess all of the evidence before
reaching a conclusion on the genuineness of this marriage. The Officer did not
do this. There was a significant body of positive factors that was before the
Officer that suggested a genuine relationship (and a different conclusion)
which the Officer does not mention and which I think the Court must conclude was
left out of recount. The Officer was obliged to consider the totality of the
evidence in this case, which included the fact that an officer in Mississauga
had already addressed the entire file and approved it for landing.
[43]
Even if the Court were to rely upon the assumption
that the Officer reviewed all of the evidence, including the many positive
factors, the Decision still lacks intelligibility and justification because it
is not possible to tell why the Officer thought the Applicant’s lack of
knowledge about his wife’s educational activities outweighed all of the other
positive factors at play in this case.
[44]
It is telling, I think, that the Officer was
told by the Sponsor why the Applicant did not know she was going back to school
to become a certified chef. The Sponsor said:
Q. Mentioned field of study that wish
to pursue?
S. Not sure if I mentioned specifically. Why? Been searching
for future jobs; many changes in potential programs.
[45]
The Applicant thought the Sponsor was going back
to attend veterinary courses because she used to work as a veterinarian before
coming to Canada. This is correct. The Applicant demonstrated he knew
significant details about his wife’s background and the Sponsor makes it clear
that she could not remember if she had told the Applicant that she wanted to
become a chef. There was no inconsistency here.
[46]
In the Decision itself, the Officer says that
there were discrepancies in the answers that were “not
limited to” the educational issues specifically set out in the Decision.
In fact, there are no other material discrepancies that I can find. The Officer
overlooks the explanation given for the Applicant’s not knowing what his wife
wanted to study to become a certified chef, and tries to give the impression
that there were other discrepancies when there are none, and then fails to take
into account the important consistent answers that were given throughout the
interviews.
[47]
Justice Gleeson’s words in Ma v Canada
(Minister of Citizenship and Immigration), 2016 FC 1283 are instructive for
the case before me:
[10] In reaching this conclusion, the
Officer noted that additional documentation was provided at the interview in
support of the claim that the marriage was genuine, including tax statements,
financial documentation, divorce certificates, affidavits and photos. Other
than acknowledging receipt of this documentary evidence, the Officer did not
address it in any way.
[11] The documentation provided to the
Officer demonstrates that Ms. Ma and Mr. Wilson hold a joint bank account and
the account appears to be regularly used. The documentation reports that Ms. Ma
and Mr. Wilson share the same home address on (1) tax documentation; (2)
banking documentation; (3) cellular phone accounts; (4) health care
documentation; and (5) automobile insurance documentation. In addition, the
Officer was provided with a number of letters that purport to attest to the
genuineness of the relationship. All of this evidence appears corroborative of
the claim that Ms. Ma and Mr. Wilson are in a genuine relationship. However,
none of the documentation is addressed in the Officer’s decision. Nor is it
evident in reviewing the record that the Officer actively considered this
evidence.
[12] It is true that a decision-maker
is not required to address each piece of evidence and is presumed to have
considered all the evidence placed before him or her. However, where directly
contradictory evidence is not addressed by a decision maker a Court may more
readily conclude that the decision-maker reached a determination without regard
to the evidence before it (Cepeda-Gutierrez v Canada (Minister of
Citizenship and Immigration), [1998] FCJ No 1425 at para 17).
[13] In this case, I am not suggesting
that the evidence is in itself determinative of the genuine nature of the
marriage. However, it is, in my opinion, directly relevant to the analysis the
Officer was undertaking. The Officer’s failure to address this evidence
undermines the transparency, intelligibility and justifiability of the
decision. The reasons do not disclose how or even if, the Officer weighed this
evidence against the negative credibility findings upon which the determination
was based. This, in my opinion, is a reviewable error warranting the
intervention of the Court.
[48]
I cannot, however, accept the Applicant’s
argument that the decision of CIC-Mississauga was functus officio so
that CIC-Etobicoke erred by refusing to land him on March 15 and again on May
26, instead of scheduling an interview on September 29, six months later.
[49]
On this issue, I accept the Respondent’s
position that no final decision had been made in this case and that the
Applicant had been informed of this in the CIC letter of February 14, 2016
which reads, in part, as follows:
IMPORTANT: You and your family members,
if any, will be required to present original identification document(s)
to the Canada Immigration Centre at your appointment. A final decision
concerning the granting of permanent residence status will be made at that
time. If permanent residence is granted, the name that will appear on the
confirmation of permanent resident document is your name as it appears on your
passport or identity documents.
[Second emphasis added. Some emphasis from
original removed.]
[50]
I see no legal authority that prevents a review
of the authenticity of a relationship by a local CIC office, and local officers
who may have concerns in this regard should not be prevented from raising them
because such concerns were not raised earlier in the process. I see nothing to
prevent an officer from re-visiting the bona fides of the marriage before
the visa is actually issued.
[51]
There is also jurisprudence to suggest that visa
officers can revisit decisions in certain circumstances. In Canada
(Citizenship and Immigration) v Kurukkal, 2010 FCA 230 at para 3 the
Federal Court of Appeal said: “We agree with the judge
that the principle of functus officio does not strictly apply in
non-adjudicative administrative proceedings and that, in appropriate
circumstances, discretion does exist to enable an administrative decision-maker
to reconsider his or her decision.” In Kurukkal, the reviewing
judge had found functus officio did not apply in the context of H&C
decisions because there was no right of appeal and the process was informal. If
functus officio does not apply in an H&C decision, it appears to me
that it would likely not apply in a spousal sponsorship decision.
[52]
Counsel concur there is no question for
certification and the Court agrees.