Docket: IMM-2680-15
Citation:
2016 FC 196
Ottawa, Ontario, February 12, 2016
PRESENT: The
Honourable Mr. Justice Fothergill
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BETWEEN:
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SAJJAD SHAMSI
KAZEM ABADI
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Applicant
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and
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THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Respondent
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SUPPLEMENTAL JUDGMENT AND REASONS
[1]
On January 8, 2016, I dismissed an application
for judicial review brought by Shamsi Kazemi Abadi pursuant to s 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA] (Shamsi Kazemi Abadi v
Canada (Minister of Citizenship and Immigration), 2016 FC 29). I upheld the
decision of the Refugee Protection Division [RPD] of the Immigration and Refuge
Board that Mr. Shamsi’s refugee status had ceased pursuant to s 108(1)(a) of
the IRPA because he had re-availed himself of the protection of his country of
nationality.
[2]
Pursuant to s 74(d) of the IRPA, no appeal from
a judgment of this Court that disposes of the merits of an application may be
initiated unless the judge “certifies that a serious
question of general importance is involved and states the question.”
Pursuant to Rule 18(2) of the Federal Courts Citizenship, Immigration and
Refugee Protection Rules, SOR/93-22 [the Rules], a party who requests
certification of a question must specify the precise question.
[3]
At the hearing that took place in Vancouver,
British Columbia on December 10, 2015, I asked the parties whether they wished
to propose any questions of general importance for certification. Counsel for
Mr. Shamsi responded that they had not prepared precise questions for
certification, but indicated that there “may
potentially” be serious questions arising from the case. The Minister of
Citizenship and Immigration [the Minister] argued that there was ample
jurisprudence addressing the question of re-availment, and no questions of
broad significance or general importance arose from the case.
[4]
In my judgment dated January 8, 2016, I declined
to certify a question for appeal pursuant to s 74(d) of the IRPA. I concluded
that the outcome of the case was a function of its particular facts. By letter
dated January 13, 2016, Mr. Shamsi sought to make additional submissions and
proposed two questions for certification. By letter dated January 28, 2016, the
Minister opposed Mr. Shamsi’s request that two questions be certified for
appeal.
[5]
Pursuant to Rule 18(1), parties must be provided
with an opportunity to propose a question for certification “before a judge renders judgment.” The general rule is
that questions cannot be certified for appeal after a judgment is pronounced in
writing (Brar v Canada (Minister of Citizenship and Immigration), (1997)
139 FTR 79 at para 4, 76 ACWS (3d) 399 (FC)). A serious question of general
importance must arise from the issues in the case and not from the judge’s
reasons (Zhang v Canada (Minister of Citizenship and Immigration), 2013
FCA 168 at para 9). As the Federal Court of Appeal has observed, a judge who
has heard a case should be in a position to identify whether a serious question
of general importance arises without circulating draft reasons to counsel (Valera
v Canada (Minister of Citizenship and Immigration), 2009 FCA 145 at para
29).
[6]
The doctrine of functus officio exists to
ensure the finality of judgments, and provides that a court cannot reconsider
or alter its decision once it has been rendered. There are two exceptions to
the general rule that a decision-maker cannot amend its decision: to address a
slip and to correct an error in expressing its manifest intention (Chandler
v Association of Architects (Alberta), [1989] 2 S.C.R. 848, 62 DLR (4th) 577
(SCC)). Neither exception applies here, therefore the Court is functus
officio.
[7]
Mr. Shamsi relies on my judgment in Azimi v
Canada (Minister of Citizenship and Immigration), 2015 FC 1291 [Azimi]
as authority for the proposition that post-judgment submissions may be
considered by the Court. My decision to permit additional submissions regarding
the certification of questions following the issuance of the Court’s judgment
in Azimi resulted from the unusual circumstances of that case. In Azimi,
I heard only initial submissions regarding the certification of questions at
the hearing, and indicated that I would accept further written submissions if
necessary. There was a misunderstanding between the Court and the parties
regarding what this would mean in practice. Given the parties’ reasonable
expectation that they would be given a further opportunity to propose questions
for certification, the Court was not yet functus officio.
[8]
This may be contrasted with the present case,
where the certification of questions was canvassed with the parties at the
hearing and no precise questions were proposed. No request was made at the
hearing to propose questions for certification by a future date. Nor were any
proposed questions received by the Court before judgment was issued.
[9]
For the foregoing reasons, the Court is functus
officio and Mr. Shamsi’s request that the Court certify questions for
appeal must be denied.
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