Date: 20000829
Docket: IMM-4178-99
BETWEEN:
SHOKOOFEH KHEIRI
SARVENAZ SEIGHALI
SOORENA SEIGHALI
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
LINDEN J.
[1] The issue in this judicial review application is whether a Visa Officer has the discretion to extend the time limit on a Visa that has been issued or whether the Visa Officer is functus officio and unable to do so.
[2] In this case, by decision dated July 12, 1999, the Visa Section took the position that it could not extend the time limit on a Visa that had expired, but offered to process the new file rapidly. A challenge to that decision is the subject of this application which, in my view, must succeed.
FACTS
[3] A brief sketch of the sad facts of this case would be useful. The Kheiri family wanted to leave Iran prior to the Iranian New Year's Day, March 20, 1999, after which time the son, being 16, could not do so without a special exemption, as he would then be eligible for military service. Despite the best efforts of the family and the officials to do so expeditiously, the Visa was not issued until March 16, 1999 and it was picked up on March 18, 1999. This being the New Year season in Iran, it was difficult for the family to arrange transportation out of Iran, prior to the 20th. As a last resort they took the bus, but, alas, the family's bus could not cross the Turkish border before midnight as there were 100 buses already lined up there when it arrived. The family gave up the trip and returned home. The parents came to Canada later, however, as the Visas were valid until April 7, 1999, and they were landed, but the two children, the son and his older sister, were left behind to try to secure the sons's exemption. Not being successful in this quest, the parents returned to Iran, having obtained permission to do so, but this meant that they could not sponsor their children as immigrants, since they were no longer residing in Canada. They did not want to leave their children alone in Iran. Nor did they wish to start the immigration process all over again. Consequently, they sought an extension to the time limit on the Visa, which was refused on the basis of a lack of jurisdiction to do so. That is the decision under review on this application.
ANALYSIS
[4] While both parties are in accord that the legislation does not expressly permit a Visa Officer to extend the time limit on an expired Visa, the legal authorities seem to permit officials making administrative decisions some latitude to do so. The doctrine of functus officio has not been strictly applied to administrative law cases, for, as Mr. Justice Sopinka explained in Chandler v. Alberta Association of Architects, [1989] 2 S.C.R. 848 at 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. |
[5] Bringing this issue home to the Visa situation, Mr. Justice Cullen, referring to Chandler, has held that a Visa could be revoked upon learning about a person's involvement in criminal activity. As he explained in Chan v. Canada (Minister of Citizenship and Immigration), [1996] 3 F.C. 349 (T.D.):
| 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. |
| 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 rules and duties of visa officers. |
[6] The views of Mr. Justice Cullen have been followed by Madam Justice Reed in Nouranidoust v. Canada (Minister of Citizenship and Immigration), [1999] F.C.T., No. 1100 (June 30, 1999) in a case where an Immigration Officer did reconsider an application for landing but it was contended that he ignored evidence on that reconsideration. The decision had to be set aside, according to Madam Justice Reed, unless there was no authority to undertake a reconsideration. She set the decision aside and, during the course of her reasons, quoted Mr. Justice Cullen's remark in Chan and explained:
| 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. |
| 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. |
[7] The respondent contends that these cases (Chan and Nouranidoust) are not applicable here as they deal with new evidence, which according to him, is not the problem here. He suggests that the Visa Officer cannot treat an invalid, expired visa as a valid one. While he agrees that this may be a hard case, he stresses that there just is no jurisdiction to extend the time. He relies on two cases where expired Visas were not accepted when their holders sought landing. (See Avci v. Canada (Minister of Citizenship and Immigration) (1997), 139 F.T.R. 161; Canada (Minister of Citizenship and Immigration) v. Nikolova (1992), 102 F.T.R. 72.) In my view, these cases are sound, but there was no application to extend the time limit on the Visas, which is the subject of this application. (See also Soimu v. Canada (Secretary of State) (1994), 83 F.T.R. 285; Tchassovnikov et al v. Canada (Minister of Citizenship and Immigration) (1998), 152 F.T.R. 144.)
[8] In my view, a Visa Officer may re-open a Visa Hearing to extend the date of its effectiveness if it is felt to be in the interest of justice to do in unusual circumstances. The functus officio principle is no bar to this. Of course, there may be imposed certain conditions in appropriate cases concerning fresh medical and/or security reports. It is unduly technical and unnecessarily formal to require an entirely fresh application to be made, given the long waiting lists that exist in many lands. If Parliament wishes otherwise, it is at liberty to amend the statute to make clear that no extension or reconsideration is permitted in cases such as these.
[9] I am aware of decisions to the contrary, (see Dumbrava v. Canada (Minister of Citizenship and Immigration) (1995), 101 F.T.R. 230; Kandasamy v. Canada (Minister of Citizenship and Immigration) (1996), 119 F.T.R. 262; Jimenez v. Canada (Minister of Citizenship and Immigration) (1998), 147 F.T.R. 199), but in my view, the approach of Mr. Justice Cullen and Madam Justice Reed is to be preferred. The literature seems to support this less technical view. In Waldman, Immigration Law and Practice, Vol. 2, this appears:
| If an application is refused, either counsel or the applicant have several options. They can seek clarification on the reasons for refusal, either by approaching the visa officer or by making a request under the Access to Information Act for the via officer's file. In either case, after being apprised of the reasons for refusal, the applicant can seek a reconsideration by submitting further documentation in support of the application in order to address the concerns raised by the visa officer. |
The Supreme Court of Canada has advised flexibility in administrative cases such as these. (See Chandler). In another context, the Supreme Court has maintained the authority of a government official to reconsider a decision to authorize a lobster fishing licence, rejecting the application of functus officio reasoning. It was held that until the licence was actually issued, the Minister could change his mind, as long as he did so in good faith. Mr. Justice Major stated:
| Until the Minister actually issued the licence, he possessed a continuing power to reconsider his earlier decision to authorize and or issue the licence. |
(See Comeau's Sea Foods v. Canada [1997] l S.C.R. 12, at pp. 28, para.34.) Moreover, such an interpretation would be consistent with Canada's welcoming immigration policy, as expressed in the legislation and numerous judicial decisions. It would also be in harmony with the current tendency evidenced in judicial decisions to avoid technical interpretations of procedural rules that cause injustice.
[10] There is no basis for the invocation of the doctrine of reasonable expectation. Although discussed in the facta, this doctrine was wisely not even raised in argument, there being no basis upon which it could succeed.
[11] The application will, therefore, be allowed. The decision of July 12, 1999 will be set aside and the matter remitted to the Visa office to be reconsidered on the basis that there exists jurisdiction in appropriate circumstances to consider extending the time limit on a Visa in the interests of justice subject, of course, to reasonable conditions being imposed. The decision to extend or not to extend the time limit should be made within 60 days hereof.
[12] In the event that he was unsuccessful, Counsel for the Crown asked at the close of argument that I certify a case for the Court of Appeal, under section 83 in light of the uncertainty in the law on this issue. While there may be some uncertainly, I do not think that this issue is a "serious question of general importance," so as to merit a certified question. Moreover, to do so, would entail lengthy delay where the family's situation is an urgent one. They were permitted to immigrate to Canada, but were prevented from doing so by circumstances beyond anyone's control. They should not be made to wait any longer than necessary to be landed here, if they are still qualified to do so.
"A.M. Linden" Judge
OTTAWA, Ontario
August 29, 2000.
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