Docket: IMM-11544-23
Citation: 2025 FC 546
Toronto, Ontario, March 24, 2025
PRESENT: Madam Justice Go
BETWEEN: |
MA TERESA GUTIERREZ |
Applicant |
and |
THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent |
JUDGMENT AND REASONS
I. Overview
[1] Teresa Gutierrez [Applicant], a citizen of the Philippines, submitted an application for permanent residence [PR] under the Home Child Care Provider Class [HCCPC].
[2] In a decision dated May 2, 2023, an officer [Officer] with Immigration, Refugees and Citizenship Canada [IRCC] refused the Applicant’s PR application. The Officer found the Applicant did not meet the educational requirements of the HCCPC.
[3] The Applicant, who was self-represented at the time, wrote to IRCC by email on May 19, 2023, seeking a reconsideration of the denial of her PR application [May 19, 2023 email]. On June 12, 2023, an IRCC agent wrote in an email to the Applicant to indicate that the decision of May 2, 2023, was final and suggested the Applicant could submit a new application with new information. For ease of reference, I will refer to the May 2, 2023 decision as the Initial Decision, and the IRCC June 12, 2023 email as the Reconsideration Decision.
[4] The Applicant brings this application for judicial review of the Initial Decision. The Applicant also argues that the IRCC agent erred by failing to reconsider the denial of her PR application. For the reasons set out below, I grant the application.
[5] In their written submissions, the Respondent argues that that the Applicant is precluded from seeking a judicial review of two decisions in a single review, as doing so runs afoul of Rule 302 of the Federal Courts Rules, SOR/98-106 [Rules]. The Respondent points to Harms-Barbour v Canada (Public Safety and Emergency Preparedness), 2021 FC 59 at para 64, where the Court held that a reconsideration decision constituted a separate decision, and as such, was deserving of a separate application for judicial review.
[6] At the hearing before me, counsel for the Applicant clarified that the Applicant is only seeking a judicial review of the Reconsideration Decision, and not of the Initial Decision, even though the Notice of Application for Leave and for Judicial Review [Notice] that counsel prepared suggests otherwise.
[7] In light of the Applicant’s clarification, the Respondent did not strongly press his point about Rule 302 but reminded the Court that the Rules prohibit reviewing two decisions in one application for judicial review.
[8] I find Rule 302 is not relevant, given the Applicant’s clarification at the hearing as to which decision is under review. I also note that while the Notice suggests that the Applicant sought leave for judicial review of the Initial Decision only, in the same Notice, when seeking an extension of time to file the leave application, the Applicant argued that it was the Respondent’s failure to consider the Applicant’s May 19, 2023 request for reconsideration and failure to properly inform the Applicant of the legal processes that caused or added to the delay in filing this notice. Further, counsel for the Applicant focused their written submissions on the Respondent’s refusal to reconsider the Applicant’s application. The Respondent was thus able to respond to the Applicant’s submissions about the Reconsideration Decision.
[9] The Respondent further submits that the Applicant did not make a formal reconsideration request, and that the Reconsideration Decision was reasonable because the Applicant continues to fall short of the requirements and submits no new evidence to overcome the Initial Decision.
[10] I will thus focus my analysis on the following issues:
a.Did the May 19, 2023 email constitute a reconsideration request?
b.Did the Officer erroneously apply the doctrine of functus officio?
[11] The standard of review of the merits of the decision is reasonableness: Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov] at paras 10, 25. The Court should assess whether the decision bears the requisite hallmarks of justification, transparency, and intelligibility: Vavilov at para 99. The Applicant bears the onus of demonstrating that the decision was unreasonable: Vavilov at para 100.
A. Did the May 19, 2023 email constitute a reconsideration request?
[12] The Respondent emphasizes that the May 19, 2023 email was not a formal request for reconsideration, but rather an expression of the Applicant’s disappointment that she did not meet the HCCPC criteria. The Respondent points to Vavilov, where the Supreme Court of Canada determined that the reviewing court should consider the submissions made to the decision-maker: Vavilov at para 94.
[13] The Applicant points to Agbhonkese v Canada (Citizenship and Immigration), 2021 FC 1065 [Agbhonkese] at para 24 when arguing that the Court should avoid choosing form over substance when addressing the question of which of the two decisions is under review. I find this principle of not choosing form over substance equally applicable when determining whether the Applicant’s May 19, 2023 email constitutes a request for reconsideration.
[14] As noted above, the Applicant was self-represented at the time. A self-represented litigant may not always know the legal jargon to indicate their position clearly. The Applicant did what she could to “appeal”
the Initial Decision by sending an enquiry to IRCC. As the Respondent notes, the Applicant outlined her disappointment with the Initial Decision after four years of working far from her family. However, the Applicant also said she hoped she could “make an appeal for this”
and asked the Officer to give her “some consideration.”
The Applicant repeated again at the end of her enquiry that she hoped to “get a consideration.”
[15] Read as whole, I find that the language used by the Applicant the May 19, 2023 email indicated that the Applicant was making a request for reconsideration.
[16] To find otherwise, in my view, is to set the bar too high by requiring self-represented applicants to use the right legal phrases and terms in their requests to IRCC before they would be taken seriously by the decision-maker. Doing so would also run counter to the principle of promoting right of access to justice as set out in the Canadian Judicial Council Statement of Principles on Self-Represented Litigants and Accused Persons.
B. Did the Officer erroneously apply the doctrine of functus officio?
[17] The Applicant submits that the doctrine of functus officio does not preclude an officer from reconsidering a particular matter and does not strictly apply to non-adjudicative proceedings. The Applicant emphasizes that the Officer was free to exercise discretion to reconsider the Applicant’s request: Canada (Citizenship and Immigration) v Kurukkal, 2010 FCA 230 [Kurukkal] at paras 2, 4.
[18] The Applicant argues that the IRCC agent who refused to reconsider her application erred in determining that the May 23, 2023 decision was final and that the Applicant’s only recourse was to start a new application. The Applicant submits that rather than conclude the decision was final, the agent should have taken a two-step approach as outlined in Hussein v Canada (Citizenship and Immigration), 2018 FC 44 [Hussein] cited with approval in Agbhonkese at para 14. In Hussein, the court determined that the first step is to determine whether to proceed to reconsider the previous decision. The second step is the actual reconsideration of the earlier decision, which would not proceed unless the Minister’s Delegate decides to exercise their discretion to reconsider the earlier decision: Hussein at para 55.
[19] The Respondent submits that there is no basis in law that requires decision-makers to reconsider final decisions. The Respondent posits that the requirement to justify a refusal to re-open a decision is not at the “high end”
of the scale and depends on the nature and circumstances of the request: AB v Canada (Citizenship and Immigration), 2021 FC 1206 [AB] at para 44. On this point, the Respondent characterizes the Reconsideration Decision as no more than a “screening exercise:”
Pierre Paul v Canada (Citizenship and Immigration), 2018 FC 523.
[20] The Respondent submits that had the May 19, 2023 email been a formal request for reconsideration, the Applicant still did not submit new evidence that may change or confirm the material fact in issue: Veryamani v Canada (Citizenship and Immigration), 2010 FC 1268 at para 44; Mansouri v Canada (Citizenship and Immigration), 2012 FC 1242 at para 8; Agbhonkese at para 28; AB at para 21.
[21] While I acknowledge the Respondent’s argument with respect to the lack of sufficient details contained in the Applicant’s reconsideration request, I note, once again, that the Applicant was self-represented when she made her reconsideration request.
[22] More importantly, I find that in this case, the IRCC agent who refused the reconsideration request did not do so for a lack of new evidence. Rather, agent #5749 noted:
We verified the information you provided and can confirm that it is not possible to update your information if you do not currently have an application in process with IRCC.
Since a final decision was already made on your application, the information you provided will not be added to your file.
If applicable, we invite you to include this information when you submit a new application.
[23] These reasons made clear that agent #5749 did not consider the Applicant’s request solely because the agent believed a final decision had been made on the Applicant’s application, and not because the Applicant failed to provide any new evidence to challenge the Initial Decision.
[24] As the Federal Court of Appeal [FCA] confirmed at para 3 in Kurukkal, “in appropriate circumstances, discretion does exist to enable an administrative decision-maker to reconsider his or her decision … [and that] a definitive list of the specific circumstances in which a decision-maker has such discretion to reconsider is neither necessary nor advisable.”
The FCA continued at para 4: “In this case, the decision-maker failed to recognize the existence of any discretion. Therein lay the error.”
[25] The same conclusion, in my view, can be reached in this case.
[26] For this reason, the matter should be returned to a different officer for reconsideration.
[27] The application for judicial review is granted.
[28] There is no question for certification.
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