[2000] 1 F.C. 123
IMM-3873-98
Hamid Nouranidoust (Applicant)
v.
The Minister of Citizenship and Immigration (Respondent)
Indexed as: Nouranidoust v. Canada (Minister of Citizenship and Immigration) (T.D.)
Trial Division, Reed J.—Toronto, June 23; Ottawa, June 30, 1999.
Citizenship and Immigration — Immigration practice — Applicant found not entitled to landing under deferred removal orders class regulations as not in possession of passport, travel document — Passport subsequently issued to applicant by Iranian embassy — Original decision to refuse application for landing maintained — Whether immigration officer could reconsider decision on basis of new evidence — Immigration Act silent, case law unsettled as to application of doctrine of functus officio to decisions of immigration officers — Decision herein new decision subject to judicial review — Applicant not trying to avoid expiration of limitation period — Immigration officer having authority to reconsider decision on basis of new evidence — Principle of functus officio to be applied flexibly — Parliament’s silence not intended to restrict immigration officer from reopening file in interests of justice.
STATUTES AND REGULATION JUDICIALLY CONSIDERED
Immigration Regulations, 1978, SOR/78-172, s. 11.401 (as enacted by SOR/94-681, s. 3).
CASES JUDICIALLY CONSIDERED
APPLIED:
Chandler v. Alberta Association of Architects, [1989] 2 S.C.R. 848; (1989), 101 A.R. 321; 62 D.L.R. (4th) 577; [1989] 6 W.W.R. 521; 70 Alta. L.R. (2d) 193; 40 Admin. L.R. 128; 36 C.L.R. 1; 99 N.R. 277; Chan v. Canada (Minister of Citizenship and Immigration), [1996] 3 F.C. 349 (1996), 136 D.L.R. (4th) 433; 43 Admin. L.R. (2d) 314; 114 F.T.R. 247; 34 Imm. L.R. (2d) 259 (T.D.).
CONSIDERED:
Soimu v. Canada (Secretary of State) (1994), 83 F.T.R. 285 (F.C.T.D.); Dumbrava v. Canada (Minister of Citizenship and Immigration) (1995), 101 F.T.R. 230; 31 Imm. L.R. (2d) 76 (F.C.T.D.); Kandasamy v. Canada (Minister of Citizenship and Immigration) (1996), 119 F.T.R. 262; 36 Imm. L.R. (2d) 237 (F.C.T.D.); Tchassovnikov et al. v. Canada (Minister of Citizenship and Immigration) (1998), 152 F.T.R. 144 (F.C.T.D.); Jimenez v. Canada (Minister of Citizenship and Immigration) (1998), 147 F.T.R. 199 (F.C.T.D.).
REFERRED TO:
Wong v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 685 (T.D.) (QL); Dhaliwal v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 982 (T.D.) (QL).
AUTHORS CITED
Waldman, Lorne. Immigration Law and Practice, Vol. 2, loose-leaf ed., Toronto: Butterworths.
APPLICATION to set aside the decision of an immigration officer that the applicant was not entitled to landing pursuant to the deferred removal orders class regulations. Application allowed.
APPEARANCES:
Chantal Desloges for applicant.
Michael Beggs for respondent.
SOLICITORS OF RECORD:
Green & Spiegal, Toronto, for applicant.
Deputy Attorney General of Canada, for respondent.
The following are the reasons for order rendered in English by
[1] Reed J.: The applicant seeks an order setting aside the decision of an immigration officer that found he was not entitled to landing pursuant to the deferred removal orders class (DROC) regulations [SOR/94-681]. The main issue is whether an immigration officer can reconsider a decision on the basis of new evidence.
[2] The Regulatory Impact Analysis Statement, which accompanied the DROC regulations, explained their goal:
The goal … is to regularize the status of certain failed refugee claimants who have been in “limbo” for several years awaiting removal due to the Department’s unwillingness or inability to remove them and whose situation shows no immediate prospect of resolution. In many cases, these individuals have formed an attachment to Canada; consequently, removal, at this point, would be both unfair to the individual and would have no deterrent value.
[3] The document also states that several alternatives to the DROC program were considered but the:
… status quo was rejected because in some cases the situations which led the Department to depart from the normal removals policy show little sign of improvement and hence those persons who are currently under order would likely continue in “limbo” for some time. In other cases the human rights situation has improved to the point that removals are now possible, but many of those under removal order have been in Canada for such a long time that removing them would be unfair.
[4] The applicant clearly fell within the purpose of this program. He came to Canada in 1990 when he was 14 years old. He applied for refugee status, but in 1991 the Immigration and Refugee Board found him not to be a Convention refugee. He remained in Canada thereafter without status.
[5] When the DROC program was announced, he applied and was found to be eligible for landing thereunder. In order to be granted landing, however, an eligible person had to be in possession of a passport or other travel document. Paragraph 11.401(b) [as enacted by SOR/94-681, s. 3] of the Immigration Regulations, 1978, SOR/78-172, stated:
11.401 A member of the deferred removal orders class and the member’s dependants, if any, are subject to the following landing requirements:
…
(b) the member and a member’s accompanying dependants must be, as the case may be, in possession of
(i) a passport or travel document issued to that member by the country of which the member is a citizen or national, unless the member cannot acquire such document because of the disruption of government in the issuing country,
[6] The applicant attempted to obtain a passport from the Iranian embassy as he had left Iran without one. His counsel was informed by the embassy that it would renew a passport, but would not issue a new one unless the applicant could provide a birth certificate issued by the new Government of the Islamic Republic of Iran. The applicant had a birth certificate issued by the Imperial Government of the Shah of Iran. This information was forwarded to the respondent on May 6, 1996.
[7] The respondent then instructed the applicant, pursuant to departmental policy, to obtain a letter from the Iranian embassy saying why it would not issue a passport. The applicant was apparently told that the embassy would do nothing for him because he had left Iran illegally and had not done his military service. This was communicated to the respondent on October 18, 1996.
[8] On May 5, 1997, the applicant was informed by the relevant immigration officer that his application might have to be refused because he was not in possession of a passport, identity or travel document. The applicant was given 30 days to respond. The applicant’s counsel responded, explaining again the difficulty the applicant was having in obtaining a passport from the embassy. The letter enclosed a copy of the applicant’s birth certificate and suggested that it be used instead.
[9] The applicant subsequently received a letter dated November 3, 1997, refusing his application for landing as a member of DROC because he was not in possession of a passport or other travel document. He was informed that he was required to leave Canada immediately. The applicant then retained different counsel. At his new counsel’s urging, he went back to the Iranian embassy and this time was issued a passport. His new counsel sent a copy of the passport under cover of a letter dated February 11, 1998, to the relevant officer and requested a resumption of the processing of the applicant’s file under the DROC program.
[10] A letter, dated July 3, 1998, was sent by the officer in reply stating that the earlier refusal was maintained. It is this decision that is now under review. The July 3, 1998 letter states:
We have received your letter dated February 18 [sic], 1998 with the attached information and have conducted a review of your file. The original decision to refuse your application of which you were notified on November 03, 1997 is maintained.
[11] The applicant’s counsel argues that that decision is perverse because when it was made the officer had a copy of the applicant’s passport before him. Thus, in making the July 3, 1998, decision relevant evidence was ignored.
[12] The respondent argues that despite the fact that the text of the July 3, 1998, letter indicates that a decision was made after reconsideration of the applicant’s DROC application, the letter was merely a courtesy letter not a new decision. In addition, the respondent argues that with the making of the November 3, 1997, decision the officer was functus officio, and had no authority to reconsider the application.
[13] The governing jurisprudence with respect to when the principle of functus officio is applied to administrative decisions is found in Chandler v. Alberta Association of Architects, [1989] 2 S.C.R. 848, at page 862. Mr. Justice Sopinka, speaking for a majority of the Court, indicated that the origin of the doctrine functus officio related to formal orders of a Court that were subject to full appeal. He noted that there was some indication that the doctrine did not apply to administrative tribunals from which there was no appeal. In his view this was not correct since there were sound policy reasons for finality of decision making by both administrative tribunals and courts. However, he noted that the doctrine should be applied flexibly to administrative tribunals:
… 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.
Accordingly, the principle should not be strictly applied where there are indications in the enabling statute that a decision can be reopened in order to enable the tribunal to discharge the function committed to it by enabling legislation.
[14] Mr. Justice Cullen considered the application of the doctrine of functus officio to a visa officer’s decision in Chan v. Canada (Minister of Citizenship and Immigration), [1996] 3 F.C. 349 (T.D.). The issue was whether a visa officer could revoke visas that had been issued to a woman and her son as a result of information the visa officer subsequently obtained that the woman was involved with a criminal triad. Mr. Justice Cullen quoted the above passage from Chandler and commented as follows at pages 366-367:
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 role and duties of visa officers. [Emphasis added.]
[15] Mr. Justice Cullen’s conclusion accords with the statement contained in paragraph 13.322.1 of Mr. Waldman’s loose-leaf publication, Immigration Law and Practice, Vol. 2 (Toronto: Butterworths Canada):
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 visa 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.
[16] There is no doubt that the jurisprudence in this area is unsettled. One aspect that is clear, however, is that a decision, such as that undertaken in this case is a new decision subject to judicial review. The validity of the decision depends on whether the decision maker has authority to undertake the reconsideration. This was held to be the case by Mr. Justice Rothstein in Soimu v. Canada (Secretary of State) (1994), 83 F.T.R. 285 (F.C.T.D.), and by Mr. Justice Noël in Dumbrava v. Canada (Minister of Citizenship and Immigration) (1995), 101 F.T.R. 230 (F.C.T.D.).
[17] A situation such as the present is different from those in which the second “consideration” is not a reconsideration but an explanation of the earlier decision, or in which a courtesy letter is sent in response to the request to reopen the earlier decision, see, for example, Wong v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 685 (T.D.) (QL); and Dhaliwal v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 982 (T.D.) (QL). Indeed, in some instances a request for a reconsideration may be nothing more than an attempt by counsel for the applicant to avoid the expiration of the time limit within which judicial review of the first decision might be commenced, see Dhaliwal (supra) and Wong (supra).
[18] What is unsettled in the jurisprudence, however, are the circumstances in which an administrative decision maker will be bound by the doctrine of functus officio and, therefore, unable to reopen a decision that has been made to consider new evidence and when a decision maker is not so bound. In the Soimu case, Mr. Justice Rothstein at page 288 found that since the Immigration Act [R.S.C., 1985, c. I-2] was silent as to whether a visa officer could review decisions that had been made, it would appear that she was not functus:
The review that she conducted might have, although it did not, result in her changing her mind and allowing the applicant’s counsel’s request for review. Surely had she changed her mind it could not be said that the letter advising of her new opinion was not a decision. By the same reasoning, even though, on the review, she came to the same conclusion as before, that conclusion must also constitute a decision.
Counsel agreed that there is nothing in the Immigration Act that deals with whether a visa officer may review decisions already made. Therefore, it does not appear that the visa officer was “functus” after she made her February 8, 1994 decision such that the April 20, 1994 decision was made without jurisdiction.
[19] Mr. Justice Noël in Dumbrava, however, came to the opposite conclusion. He stated at page 237:
I would have thought that the matter could best be approached the other way in that, absent an express grant of jurisdiction, it is doubtful that a decision maker has the power to reconsider a prior decision on new grounds and exercise his or her discretion anew. The decision making powers of a visa officer are statutory and, as such, they must be found in the statute. While I have no doubt that slips, typos and obvious errors can be corrected after a decision has been rendered the discretion of a decision maker is, in my view, fully exhausted once the discretionary authority to decide has been exercised in the manner contemplated by statute. As such a decision maker cannot pronounce more than once on the same matter.
[20] Subsequent to the Soimu and Dumbrava decisions, the same issue was addressed with respect to decisions of senior immigration officials. In Kandasamy v. Canada (Minister of Citizenship and Immigration) (1996), 119 F.T.R. 262 (F.C.T.D.), an applicant had been determined not to be eligible to have his claim to be a Convention refugee determined because he was a Convention refugee in Germany, the latter fact being one with which the applicant agreed. Subsequent to that decision, the applicant learned from his father that he had not been accepted as a Convention refugee in Germany. He sought to have his ineligibility finding reconsidered. The senior immigration officer refused on the ground that the information on which the applicant was now relying “could reasonably have been expected to have been available at [the] time of” the first decision—it was not new information that was coming to light for the first time. Mr. Justice MacKay held that there was a serious issue raised by the applicant’s argument (the issue before Mr. Justice MacKay was whether a stay of the execution of a deportation order should be granted). The decision of the senior immigration officer refusing to reconsider the applicant’s eligibility was subsequently set aside, on consent, and referred back for reconsideration with respect to the new documentary evidence the applicant had submitted that he had not been granted refugee status in Germany. (Order rendered by Mr. Justice Gibson on March 3, 1997.)
[21] The decision of an immigration officer with respect to the eligibility of a refugee claimant was also considered in Tchassovnikov et al. v. Canada (Minister of Citizenship and Immigration) (1998), 152 F.T.R. 144. In that decision, Mr. Justice Campbell relied, at page 145, on the Chan decision and found that a reconsideration of the applicant’s eligibility should have taken place:
On November 13, 1996, the applicants’ counsel sent a letter to Immigration Canada requesting a reconsideration of the July 12, 1995 ineligibility finding on the basis of new evidence. This request for reconsideration was denied on November 17, 1997 on the following ground:
“The decision at issue may not be revisited on the basis of the functus principle and it does not appear that, notwithstanding the rule of functus, one of the exceptions apply to this case.”
This is the decision under review in this application.
Regarding whether an error of law has been made in reaching the decision under review on the functus principle, I find the decision of Cullen, J. in Chan v. Canada (Minister of Citizenship and Immigration), [1996] 3 F.C. 349… to be compelling authority. In that case, Cullen, J. decided that a visa officer has jurisdiction to reconsider a decision made, particularly when new information comes to light.
I find it reasonable to extend Cullen, J.’s reasoning in Chan to the Senior Immigration Officer’s decision in this case. Accordingly, I find the Senior Immigration Officer’s decision of November 17, 1997 to be based on an error in law.
As the reason for requesting the reconsideration stems from a letter from the Spanish authorities dated April 24th, 1995, which places the original decision reached in this case on July 12, 1995 in significant doubt, I set the decision of November 17, 1997 aside and refer this matter to another immigration officer for redetermination ….
[22] At the same time, Mr. Justice Muldoon in Jimenez v. Canada (Minister of Citizenship and Immigration) (1998), 147 F.T.R. 199 (F.C.T.D.), held that a decision by the relevant immigration officer that the applicant “appear[ed] to meet the eligibility requirements” of the DROC rendered the decision maker functus officio so that that decision could not be reopened to allow the immigration officer to consider evidence that the applicant may have committed war crimes or crimes against humanity.
[23] It is in that context, then, that I will consider the present application. This is not a situation in which the applicant is trying to avoid the expiration of a limitation period. It is not a circumstance where the relevant immigration officer has responded by explaining his earlier decision because that is all he considers necessary as a response. The letter that was sent was not a courtesy letter refusing to reconsider the application. The immigration officer undertook a reconsideration of the applicant’s application for landing but, for whatever reason, ignored the new evidence that had been presented as the basis for the reconsideration request. As such, the decision should be set aside unless the immigration officer had no authority to undertake the reconsideration.
[24] 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.
[25] 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.
[26] For the reasons given the decision under review will be set aside and the application for landing referred back for reconsideration. Neither party has sought the certification of a question.