Docket: IMM-5831-13
Citation:
2014 FC 1203
Ottawa, Ontario, December 11, 2014
PRESENT: The
Honourable Mr. Justice Roy
|
BETWEEN:
|
|
VANHEANG PHAN
|
|
Applicant
|
|
And
|
|
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
|
|
Respondent
|
JUDGMENT AND REASONS
[1]
In what resembles a comedy of errors which has
generated a fair amount of confusion, the applicant was granted leave to
challenge the decision of an Immigration Officer, on October 3, 2012, who chose
to decide that she cannot reconsider a refusal to continue a sponsorship
application as a member of the Family Class.
[2]
The judicial review application is undertaken
pursuant to section 72 of the Immigration and Refugee Protection Act, SC
2001, c 27. The extension of time to seek judicial review was granted by my
brother Shore J. on September 4 last and it is framed as the judicial review of
the “decision of Citizenship and Immigration Canada,
dated October 3, 2012, refusing to re-open and reconsider the Applicant’s
sponsorship application of her parents and siblings”. It is therefore on
that basis that the matter was reviewed by the Court.
I.
Facts and Proceedings
[3]
There was originally an application made by Ms
Phan to sponsor her two siblings and her parents with the assistance of a
representative. The said application is date-stamped September 17, 2008 at
Citizenship and Immigration Canada [CIC]. Accordingly, it would appear to have
been received by CIC on that date. It does not appear to have been filed before
that date. However, the applicant claims that the sponsorship application was
made in May 2008; is not supported by any evidence, on this record, that it
would have been filed at a date prior to September 17, 2008, even if the
application was completed in May 2008, or some other date. As will become
apparent the date of filing would have some importance.
[4]
It must be understood what is before the Court
and what remedy can be granted, assuming the applicant prevails in this
judicial review application. The judicial review application itself is
confusing because it amalgamates many issues, most of which are not relevant to
the decision the Court must make. This application is with respect to the
decision of October 3, 2012. That decision, in its entirety, reads as follows:
This refers to your request to continue the
processing of the Application to Sponsor a Member of the Family Class you
submitted to this office on behalf of Van Kinh Phan and family (if applicable).
An officer renders a decision based on the
information that was provided. Your application was withdrawn as a result of
your explicit instructions on the sponsorship application, which indicated that
you wished to withdraw if you were found ineligible. Unfortunately, a decision
cannot be reconsidered where the sponsor erred in the completion of his/her
application. Once a sponsorship is withdrawn, subsequent instructions to
continue the processing of the file cannot be considered. As a result, we
regret to advise that we will not be able to revise the decision on your
sponsorship application.
[5]
The other matters raised by the applicant are
for all intents and purposes red-herrings to the extent that they do not
relate, directly or indirectly, to the narrow issue before the Court. At best
some of the information relayed to the Court serves to establish the context
around the decision of October 3, 2012.
[6]
Thus the letter of May 8, 2012 of the same
Immigration Officer who made the decision on October 3 states that Ms Phan is
not eligible to sponsor other family members because her income for the year
preceding the year in which she seeks to sponsor family members did not meet
the minimum necessary income requirement. Having indicated in the sponsorship
application that, if she was not eligible to sponsor, Ms Phan wished to
withdraw her application, the letter of May 8, 2012 notes that “your sponsorship application has been officially withdrawn and
no further action will be taken. There is no right to appeal this decision.”
[7]
It should be noted that there is a clear
incentive to withdraw an application to sponsor if one is not eligible to
sponsor. If withdrawn, the fees charged by the government are refunded except
for an amount of $75.00. In the case of this applicant, the amount of money
returned was many hundreds of dollars (at the hearing it was confirmed that the
amount is some $1300.00). With such an incentive, it is understandable that
someone who would not be eligible to sponsor because, among possible reasons,
the income threshold has not been met, as was the case here, would prefer to withdraw
the application and be remitted the hundreds of dollars required to have an
application that may be doomed considered further. There is obviously an
incentive to withdraw if not eligible.
[8]
Following the letter of May 8, 2012, the
applicant sought that her sponsorship application be continued to be processed.
The letter which was presumably sent asking for the application to be processed
was not in the Certified Tribunal Record, and has no been produced by the
applicant either.
[9]
The only supplementary information comes from
the Global Case Management System [GCMS]. An entry made on October 3, 2012, the
same date as that on the letter advising the applicant that her request would
not be reconsidered, states:
Received letter from sponsor requesting we reconsider
his application. He states that the immigration consultant submitted his
application late. States he signed the applicationon [sic] 03 May 2008,
but was not mailed out until September 2008. Says that if the immigration
consultant mailed the documents after he signed them, the [sic] would
have met LICO. Also states that the immigration consultant ticked off the box
opt to w/d, says he never requested this. ***Sponsor provides a copy of a
business card from Immigrant Services, amenda [sic] Ng, Settlement
Counsellor, 926 Paisley Rd. Units 4-5, Guelph, Ontario, N1K 1X5, tel:
519-836-2222 ext. 235. It is noted that sponsor did not/not provide an IMM1283
appointing this person as his representative and the address on the 1344 was
sponsor’s home address. Letter sent to sponsor this date adving [sic]
that we cannot reconsider his application.
Accordingly, there is evidence that the
applicant sought, by letter, to have the matter of her withdrawal of the
sponsorship application reconsidered.
[10]
That decision of October 3, 2012, was the
subject of a first application for authorization and judicial review. It was
filed on October 15, 2012 in file IMM-10562-12. This application was
discontinued on December 24, 2012, seemingly because was brought to the
attention of the applicant’s counsel by government counsel the decision in Somodi
v Canada (Citizenship and Immigration), 2009 FCA 268 [Somodi];
counsel for the applicant would have understood that a judicial review was not
available because a refusal of a sponsorship application was subject to an
appeal to the Immigration Appeal Division [IAD]. In view of the availability of
a recourse, the judicial review route would have to wait an appeal before the
IAD.
[11]
Thus an appeal was launched before the IAD. By a
decision rendered on August 22, 2013, the appeal was dismissed. The IAD
concluded that there was no refusal to grant Ms Phan’s parents and siblings
permanent resident visas for the reason that she had withdrawn her sponsorship
application with respect to them. The Somodi decision is concerned with
a refusal of an application for permanent residency, not the case of a sponsor
who has chosen to withdraw her sponsorship application.
[12]
It cannot be said that government counsel is
responsible for mistakes of law made by others. It is, in my view, first and
foremost for counsel representing litigants to ascertain the state of the law
and so advise their clients. Indeed, counsel for the applicant very fairly
conceded that much at the hearing. It remains that the IAD found that “[t]his is a highly unsatisfactory submission [sic] provided
encouragement for counsel for the appellant to proceed on the wrong tact to the
IAD.” I share that view.
[13]
From that unsuccessful sojourn to the IAD and
having discontinued her application for authorization and judicial review, the
applicant then turned her gaze on this Court, seeking an extension of time to
launch, again, her application for authorization and judicial review. As
indicated, extension of time and authorization were granted. The IAD decision
is not relevant.
[14]
I would however note two observations made by
the IAD in its decision that relate to the question this Court has to resolve
in this judicial review application. The IAD states that the parties are in
agreement that the Immigration Officer has jurisdiction to reconsider her
decision based upon new evidence (para 14). The IAD goes on to observe:
[15] In the respondent’s memorandum of
argument filed in the Federal Court proceedings it was submitted that the
immigration officer did not consider herself functus officio when she
was asked to reinstate the appellant’s withdrawn application and reconsider her
decision that the appellant was not qualified to sponsor her parents and
siblings. Indeed, it was further submitted she considered the request to
reinstate the appellant’s withdrawn application.
This is also the position advanced by
respondent’s counsel in this case before this Court. However, the IAD, being
somewhat prescient, concludes its observation by stating:
[16] It was not stated, however, in the
respondent’s memorandum of argument how it could be said that the officer
considered the request of the appellant and had not asserted she was functus
officio when, in fact, she informed the appellant in writing on October 3,
2012 that “Once a sponsorship is withdrawn, subsequent instructions to continue
the processing of the file cannot be considered.” I am mindful there is
reference to an affidavit by the officer that I have not seen that was filed
regarding her having considered the application to reinstate the sponsorship.
It may be she changed her mind and subsequently considered the request to
reopen the sponsorship on the merits.
II.
The Issue
[15]
That takes us back to the issue before this
Court. The applicant wishes for her sponsorship application to be reconsidered.
She claims that she was mistaken in withdrawing her sponsorship application;
she also claims that the date to be considered for the assessment of her income
is some time in May 2008, when she would have instructed a representative to
make the application, as opposed to the date the said application was received
by the respondent.
[16]
That latter claim would appear to have its
importance for this applicant. The letter of May 8, 2012 of the respondent, which
prompted the applicant to withdraw her sponsorship application, concluded that
the applicant did not meet the minimum income requirement, with the result that
the application may in effect be doomed. The 2007 Notice of Assessment from the
Canada Revenue Agency [CRA], which is to be used to ascertain the income earned
for the purpose of a sponsorship application, showed income under the threshold
for sponsorship of family members (by $200.00). Nevertheless, the Immigration
and Refugee Protection Regulations, SOR/2002-227 [the Regulations], provide
that the last notice of assessment is not the only way to calculate income for
the purpose of the so-called Low Income Cut-Off [LICO]. Pursuant to section 134
of the Regulations, it is possible to calculate the sponsor’s Canadian income
by referring to the “12-month period preceding the date
of filing of the sponsorship application”.
[17]
That period of time was used in the calculation that
was done by the respondent. Using as the date of filing the date on which the
sponsorship application was filed, that is September 17, 2012, the respondent
concluded that the applicant fell short of LICO. For the period between
September 17, 2007 and September 17, 2008, the income estimated by the
Immigration Officer was well below the CRA assessment for the fiscal year 2007.
As a result, either method, as applied by the respondent, produces an income
that does not meet the minimum threshold. Evidently, the applicant believes
that if a different time period over the taxation years 2007 and 2008 is
considered, or a different method of calculation is used, she might satisfy
LICO.
[18]
The memorandum of facts and law offered in
support of the applicant’s claim seems to confuse the appeal before the IAD and
the matter that she wishes to bring to this Court (para 27 to 31 and para 36). Similarly,
the applicant seems to argue her case that, on an appeal before the IAD, she
would prevail. In so doing, the applicant is ahead of herself and continues to
confuse the issues. Her appeal before the IAD was dismissed because it did not have
jurisdiction in view of the withdrawal of the sponsorship application; that
decision of the IAD was not challenged. As indicated before, stricto sensu
it is not relevant to these proceedings. The matter before this Court is much
narrower than that. The only issue is whether or not the decision of October 3,
2012 to refuse to reconsider reopening the file, closed due to the apparent
withdrawal of the sponsorship, is justified because the decision-maker was functus
officio. If the matter is reopened and the decision by the respondent is
not favourable, it will then be for the applicant to determine the next steps.
Until then, any reference to the IAD constitutes a distraction. First, the
Court must decide if there was a refusal to allow reconsideration. Then, the
Court would have to conclude whether or not the respondent was right to refuse
reconsideration.
III.
Analysis
[19]
The letter of October 3, 2012 is not ambiguous.
I have already reproduced it in its entirety. I repeat, for emphasis: “Once a sponsorship is withdrawn, subsequent instructions to
continue the processing of the file cannot be considered.” In other
words, the decision-maker fettered her discretion, discretion she does not deny
she has both in submissions before the IAD and before this Court. In technical
terms, the Immigration Officer declared herself to be functus officio,
that is “… once an adjudicator has done everything
necessary to perfect the decision, they are barred from revisiting them other
than to correct clerical or other minor technical errors” (Brown and
Evans, Judicial Review of Administrative Action in Canada (Toronto, On:
Carswell, 2013), §12:6211).
[20]
In order to counter the obvious difficulty, having
already acknowledged that the discretion exists but claiming on the face of the
record that it is not possible to reconsider, the respondent filed an affidavit
well after the decision of October 3, 2012. A year later, the decision-maker
contended that she in fact turned her mind to the applicant’s explanation for
why she wished to continue to sponsor her family but concluded that the
explanation was insufficient. In support of her contention, she refers to the
GCMS notes.
[21]
The GCMS notes are of no assistance. They do not
provide anything other than a recital of what the applicant is asking for, only
to conclude as in the official letter “that we cannot
reconsider his application.” I fail to see how stating the arguments put
forward, which is what was done in effect by recounting what was in the letter
of the applicant asking for a reconsideration, is in any way a consideration of
their merit, or lack thereof. Instead, the decision-maker states, more than
once, that the application cannot be reconsidered, as opposed to being
reconsidered and denied whatever the reason may be. Both the letter itself and
the GCMS notes state that a revision is not possible. That, the respondent
concedes, is not the state of the law (Respondent’s Memorandum of Argument,
para 16) and the respondent has not resiled from that position.
[22]
With respect, the position taken by the decision-maker
that she did not consider herself functus officio and that she in fact
concluded the matter on its merits continues the comedy of errors in this case.
There are two reasons for that conclusion.
[23]
First, the record speaks for itself. Even when
one considers the affidavit filed one year after the decision was made, it at
best contradicts the record. Actually, the affidavit is an attempt to explain
in a more fulsome manner the letter of May 8, 2012.
[24]
Second, and more fundamentally, the affidavit of
the decision-maker is attempting to bootstrap her decision. It is an affidavit
in the proceedings before this Court well after a decision has been made. This
is not permissible: a judicial review application exists for the purpose of
controlling the legality of a decision made by an administrative
decision-maker. The goalposts are where they are; they cannot be moved. As
discussed by the Federal Court of Appeal in Stemijon Investments Ltd v
Canada (Attorney General), 2011 FCA 299, a decision-maker may not
supplement the reasons for the decision on an application for judicial review
of that decision:
[41] The Federal Court appears to have
placed no weight on this evidence. I also place no weight on it. This sort of
evidence is not admissible on judicial review: Keeprite Workers’ Independent
Workers Union et al. and Keeprite Products Ltd. (1980), 114 D.L.R. (3d) 162
(Ont. C.A.). The decision-maker had made his decision and he was functus:
Chandler v. Alberta Association of Architects, [1989] 2 S.C.R. 848.
After that time, he had no right, especially after a judicial review
challenging his decision had been brought, to file an affidavit that
supplements the bases for decision set out in the decision letter. His
affidavit smacks of an after-the-fact attempt to bootstrap his decision,
something that is not permitted: United Brotherhood of Carpenters and
Joiners of America v. Bransen Construction Ltd., 2002 NBCA 27 at paragraph
33. As a matter of common sense, any new reasons offered by a decision-maker
after a challenge to a decision has been launched must be viewed with deep
suspicion: R. v. Teskey, 2007 SCC 25, [2007] 2 S.C.R. 267.
[25]
In the case at bar, not only does this
decision-maker seek to supplement, by providing more information about the
income calculations, but she seeks to change the decision under review, from
one where the Officer lacked discretion and was unable to consider the
applicant’s request to one where she did consider the applicant’s request but
merely denied it. I have found that the respondent concluded that she was functus
officio. The affidavit submitted ex post facto is not admissible.
[26]
As I have tried to show, this case proceeded on
a comedy of errors. Most of these are not relevant to the issue, a narrow one,
that is validly before this Court. Having found that the decision-maker
concluded that she could not reconsider, the next question is, was the
respondent right to consider herself functus officio? In Kurukkal v Canada (Minister of Citizenship and Immigration), 2009 FC 695, a decision of this Court
found that whether the functus officio doctrine applied called for a
standard of correctness. On the other hand, a decision made to reconsider, or
not, a decision would be reviewable on a standard of reasonableness (Chopra
v Canada (Attorney General), 2014 FCA 179, at para 44). The former is the
issue before this Court and a standard of review of correctness applies. Was
the decision-maker right that she could not consider reopening the case?
[27]
It is problematic in this case that the decision-maker
concluded that she was precluded to consider the request for reopening, yet
tried later to argue that her decision was on the merits because the
decision-maker came to the conclusion that discretion exists after all.
[28]
Actually, there is law in the Federal Court of
Appeal that there is a residual discretion in an administrative decision-maker
to reconsider in the context of non-adjudicative administrative proceedings (Canada
(Citizenship and Immigration) v Kurukkal, 2010 FCA 230 [Kurukkal]).The
decision of the Federal Court of Appeal is instructive because it articulates
clearly the issue in this case and provides a clear answer, one that applies in
this case:
[4] In this case, the decision-maker
failed to recognize the existence of any discretion. Therein lay the error. The
immigration officer was not barred from reconsidering the decision on the basis
of functus officio and was free to exercise discretion to reconsider, or
refuse to reconsider, the respondent’s request.
That is the defect that must be cured.
Whether or not the matter is reopened is for the decision-maker, and that
decision would be subject to judicial review, albeit on a different review
standard.
IV.
Remedy
[29]
The applicant urges the Court to do more than
return the case to a different decision-maker for the narrow purpose of
determining if the case ought to be reopened. The Court has to decline the
invitation. In Kurukkal, the Federal Court of Appeal wrote:
[5] The judge directed the immigration
officer to consider the new evidence and to decide what, if any, weight should
be attributed to it. In our view, that direction was improper. While the judge
correctly concluded that the principle of functus officio does not bar a
reconsideration of the negative section 25 determination, the immigration
officer’s obligation, at this stage, is to consider, taking into account all
relevant circumstances, whether to exercise the discretion to reconsider.
[30]
The applicant’s invitation is that which was
frowned upon by the Federal Court of Appeal. What needs to be decided first is
whether the sponsorship application should be reopened, instead of concluding
too quickly, as was done here, that the functus officio doctrine
prevents a reconsideration. Both the letter of October 3, 2012 and the GCMS
notes lead inexorably to the conclusion that the decision-maker concluded that
she could not reconsider.
[31]
As a result, the judicial review application is
allowed. The matter of whether or not the sponsorship application should be
reopened, following the decision of October 3, 2012 not to consider reopening
the application, shall be remitted to another immigration officer for
determination.
Email this Content