Docket: IMM-127-16
Citation:
2016 FC 859
Ottawa, Ontario, July 22, 2016
PRESENT: The
Honourable Mr. Justice Fothergill
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BETWEEN:
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SERHII VAKUROV
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Applicant
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and
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MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
I.
Introduction
[1]
Serhii Vakurov is a citizen of Ukraine. He has
brought an application for judicial review of an adverse pre-removal risk
assessment [PRRA] made by a senior immigration officer [the Officer].
[2]
The Officer’s initial decision was rendered on
November 25, 2015, but not communicated to Mr. Vakurov until December 29, 2015.
On December 24, 2015, Mr. Vakurov sent additional submissions and documents to
the Officer. The Officer issued an addendum confirming her decision on January
12, 2016, which was communicated to Mr. Vakurov the following day. Mr. Vakurov
says that the Officer breached his right to procedural fairness, because she
provided supplementary reasons after he had commenced an application for leave
and for judicial review of her initial decision.
[3]
There is a difference between the issuance of
supplementary reasons as a valid exercise of an officer’s discretion to
reconsider an initial decision, and as an illegitimate attempt to justify a
poorly-crafted decision. In this case, I am satisfied that the Officer’s
issuance of supplemental reasons was appropriate, and did not result in a
breach of procedural fairness.
[4]
Mr. Vakurov has not challenged the Officer’s
decision on any other ground, and the application for judicial review is
therefore dismissed.
II.
Background
[5]
Mr. Vakurov arrived in Canada on February 23,
2011 with a valid study permit. He maintained this status until April 20, 2013,
and then chose to remain in Canada without authorization.
[6]
On October 2, 2015, Citizenship and Immigration
Canada issued an exclusion order against Mr. Vakurov pursuant to s 44(1) of the
Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA]. On the same
day, Mr. Vakurov was served with an Interpol arrest warrant at the Ottawa
Police Station. He was subsequently brought to the Ottawa Carleton Detention
Centre where he was held until October 16, 2015.
[7]
On October 19, 2015, Mr. Vakurov requested a
PRRA. His supporting documentation was due on November 2, 2015. In his written
submissions, Mr. Vakurov alleged that he was a wealthy entrepreneur who was the
victim of government corruption in Ukraine. He claimed that incriminating
documents had been forged in an attempt to have him arrested and prosecuted. He
said that corrupt officials were plotting against him, and had threatened his
lawyer in Ukraine. He also alleged that these same officials had assaulted
members of his family.
[8]
Mr. Vakurov submitted the following
documentation in support of his application: (1) a “Notification of Suspicion”
[Notification], which stated that he was suspected of various crimes in
Ukraine, including fraud, misappropriation, embezzlement, forgery, and abuse of
authority in connection with his former position as the head of a credit union
committee; (2) his Ukrainian passport; (3) a letter from his lawyer in Ukraine;
and (4) country condition reports confirming state corruption in Ukraine.
[9]
According to the Officer’s affidavit, she
rendered her initial adverse decision regarding Mr. Vakurov’s PRRA on November
25, 2015, but it was not delivered to Mr. Vakurov until December 29, 2015. The
Officer determined that Mr. Vakurov was neither a Convention refugee nor a
person in need of protection pursuant to ss 96 and 97 of the IRPA. She
accepted, based on the country condition reports, that there is government
corruption in Ukraine. However, she concluded that the Notification, together
with the letter from Mr. Vakurov’s lawyer in Ukraine, were insufficient to show
that corrupt officials were targeting Mr. Vakurov in an attempt to seize his
wealth. The Officer noted that Mr. Vakurov was acquitted of the allegedly false
charges that were brought against him.
[10]
On December 24, 2015, five days before he
received the Officer’s initial decision, Mr. Vakurov sent further
submissions and additional documents to the Officer. These were: (1) a letter
from his former common law spouse in Ukraine, stating that she and their three
children had received threats from Mr. Vakurov’s persecutors, and the children
had been forced to change schools; (2) certificates from the children’s
schools; (3) a letter from a Canadian-born woman living in Ukraine, who claimed
to have witnessed the threats against Mr. Vakurov and his family in Ukraine;
and (4) the results of a 2013 bodybuilding competition in which Mr. Vakurov was
a participant, and which identified his place of residence as Ontario, Canada.
[11]
On December 29, 2015, the same day that he
received the Officer’s initial adverse decision regarding his PRRA, Mr. Vakurov
was detained by the Canada Border Services Agency [CBSA]. While in detention,
Mr. Vakurov complained that the Officer’s initial decision did not address the
additional submissions and documents he had provided. He was informed by his
counsel that he should expect to receive an addendum to the initial decision,
and was advised to await the Officer’s supplementary reasons before filing an
application for leave and for judicial review.
[12]
On January 5, 2016, Mr. Vakurov once again
provided his additional submissions and documents to the Officer. During a
detention review hearing on January 7, 2016, the CBSA informed Mr. Vakurov that
his removal from Canada had been scheduled for January 15, 2016. Given his
pending removal, he decided not to wait for the Officer’s addendum to the
decision. Instead, on January 8, 2016, he filed an application for leave and
for judicial review of the initial adverse PRRA decision. He argued that the
Officer had breached procedural fairness by failing to consider his additional
submissions and documents. He sought and obtained a stay of removal from this
Court pending the determination of his application for leave and for judicial
review.
[13]
On January 13, 2016, the Officer provided Mr.
Vakurov with the addendum to the initial adverse decision regarding his PRRA,
in which she addressed the additional submissions and documents he had sent on
December 24, 2015 and January 5, 2016.
[14]
According to the Officer’s affidavit, Mr.
Vakurov’s additional submissions and documents were not matched to his file
until January 6, 2016, when the Officer was away for the holiday season. The
Officer was made aware of Mr. Vakurov’s additional submissions and documents
when she returned to work on January 11, 2016. She issued the addendum to the
initial decision the following day. The Officer was aware that Mr. Vakurov had
filed an application for leave and for judicial review of her initial decision,
but she did not know the grounds on which he relied.
[15]
In her supplementary reasons, the Officer
considered the letter from Mr. Vakurov’s former common law spouse. She accepted
that the former spouse and children had been threatened in Ukraine, and that
the children had changed schools as a result. However, the Officer found that
this was not sufficient to prove that corrupt officials had brought false
charges against Mr. Vakurov in an attempt to seize his wealth. The Officer
acknowledged that Mr. Vakurov’s former spouse had sought police
protection, and had been told that the police could not arrest anyone based on
the information she had provided, but would initiate an investigation if the
threats ever materialized. Based on these facts, and Mr. Vakurov’s acquittal of
the allegedly false charges that had been brought against him, the Officer
determined that the presumption of adequate state protection had not been
rebutted.
III.
Issue
[16]
The sole issue raised by this application for
judicial review is whether the Officer breached the duty of procedural fairness
by issuing supplementary reasons after Mr. Vakurov had commenced an application
for leave and for judicial review of her initial decision.
IV.
Analysis
[17]
The parties agree that questions of procedural
fairness are subject to review by this Court against the standard of
correctness (Canada (Minister of Citizenship and Immigration) v Khosa, 2009 SCC
12; Arango v Canada (Minister of Citizenship and Immigration), 2014 FC 370 at
para 8 [Arango], aff’d 2015 FCA 10 [Arango FCA]).
[18]
Mr. Vakurov does not argue that the Officer was
functus officio when she issued her supplementary reasons. Nor does he allege
that the Officer’s supplementary reasons gave rise to a reasonable apprehension
of bias. He says only that the Officer’s addendum improperly undermined the
grounds of his application for leave and for judicial review of the initial
decision, created inefficiency, and potentially brought the administration of
justice into disrepute.
[19]
Mr. Vakurov relies on an unreported decision of
this Court, in which Justice Martineau held that a PRRA officer had breached an
applicant’s right to procedural fairness by unilaterally amending the original
decision after an application for leave and for judicial review had been
commenced (Théophile Mbonabuca et al v Canada (Minister of Citizenship and
Immigration), January 14, 2016, Court File No IMM-1823-15 [Mbonabuca]). Justice
Martineau found that the unilateral amendment of the initial decision caused
prejudice to the applicant and was therefore procedurally unfair. He concluded
that the officer’s decision could not be saved on the grounds that it might be
reasonable, or the same decision might be made again if the matter were
reconsidered by a different officer.
[20]
Mbonabuca may be distinguished from the present
case. Mbonabuca involved a unilateral amendment of a decision by a PRRA
officer. Here, the Officer issued supplementary reasons in response to the
additional submissions and documents provided by Mr. Vakurov after the deadline
had passed.
[21]
In my view, this case is analogous to Arango. As
in this case, in Arango, a PRRA officer issued supplemental reasons for an
adverse PRRA decision after an application for leave and for judicial review of
the initial decision had been commenced. The applicant claimed that the
issuance of the officer’s supplemental reasons usurped the jurisdiction of the
Federal Court. Justice Barnes disagreed:
[15] It seems incongruous to me that an
applicant can submit materials late and then expect that the original decision
be judicially reviewed as though the content of the new material was
constructively known to the decision-maker but ignored. The logic of this
argument escapes me. I also do not see how the process that was followed
creates any unfairness for [the applicant] such that he can demand that
everything be redone by someone new. His new materials were fully considered
and the Officer reasonably found them to be unpersuasive. His fairness argument
thus rests solely on the technical pillar of the doctrine of functus officio.
[22]
On appeal, the Federal Court of Appeal confirmed
that a PRRA officer may revisit a final decision in appropriate circumstances,
because the doctrine of functus officio does not strictly apply in
non-adjudicative administrative proceedings (Arango FCA at para 15).
[23]
Moreover, as Justice Hughes held in Chudal v
Canada (Minister of Citizenship and Immigration), 2005 FC 1073 at paragraph
19), a PRRA officer has an “obligation to receive all
evidence which may affect the decision until the time the decision is made”.
The decision is made when it is delivered to the applicant (Ayikeze v Canada
(Minister of Citizenship and Immigration), 2012 FC 1395 at para 16; Avouampo v
Canada (Minister of Citizenship and Immigration), 2014 FC 1239 at para 21).
[24]
The Officer considered Mr. Vakurov’s late
submissions at the first possible opportunity. According to the Officer’s
affidavit, she was not aware of the grounds upon which Mr. Vakurov had sought
judicial review of her initial decision. There is nothing to suggest the
Officer’s decision was made in bad faith, or that the addendum was an ex post
facto attempt “to remedy the evident breach of
procedural fairness”, as argued by Mr. Vakurov. Moreover, Mr. Vakurov
has not demonstrated that he suffered any prejudice as a result of the
Officer’s decision to consider his additional submissions and documents, as he
had requested.
[25]
Pursuant to Arango, an officer’s decision to
issue supplementary reasons to address additional submissions or documents does
not, in itself, constitute a breach of procedural fairness, even if an
application for leave and for judicial review of the initial decision has been
commenced. The Court must consider whether this was a valid exercise of the
officer’s discretion to reconsider an initial decision, as opposed to an
illegitimate attempt to justify a poorly-crafted decision (Arango at para 18;
Sellathurai v Canada (Minister of Public Safety and Emergency Preparedness),
2008 FCA 255 at paras 46-47). In this case, it was the former.
[26]
Mr. Vakurov has not challenged the Officer’s
decision on any other ground, and the application for judicial review is
therefore dismissed.
V.
Certified Question
[27]
Mr. Vakurov says that the principle articulated
in Justice Martineau’s unreported decision in Mbonabuca is worthy of further
development and broader application. He acknowledges that he is trying to “push the law” in this area, but he says this is
warranted by the need for efficiency and the interests of justice.
[28]
In my view, the applicable law is clearly stated
in Justice Barnes’ decision in Arango and the Federal Court of Appeal’s
confirmation of that decision. This is not an appropriate case in which to
certify a question for appeal.
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