Federal Court Decisions

 

 

Date: 20130403

Docket: IMM-7870-12

Citation: 2013 FC 332

Ottawa, Ontario, April 3, 2013

PRESENT:    The Honourable Mr. Justice Scott

 

 

BETWEEN:

	THE MINISTER OF CITIZENSHIP AND IMMIGRATION
		Applicant
	and
	MARIA JADE MORA
		Respondent

 

           REASONS FOR JUDGMENT AND JUDGMENT

 

I.          Introduction

 

[1]               This is an application for judicial review by the Minister of Citizenship and Immigration (the Minister) of a decision rendered by the Immigration Appeals Division (the IAD) on July 5, 2012 to reopen an appeal by Ms. Maria Jade Mora (Ms. Mora), on the grounds that the initial proceeding was vitiated by a breach of natural justice.

 

[2]               For the reasons that follow this application is allowed.

 

II.        The facts

 

[3]               Ms. Mora is a citizen of Canada. Her mother, Ms. Maria Guadalupe Gonzalez, is a citizen of Mexico.

 

[4]               Ms. Mora applied to sponsor her mother under the family class. On June 17, 2011, a Visa Officer from the Canadian embassy in Mexico wrote to both Ms. Mora and Ms. Gonzalez to inform them that the sponsorship application was refused, as Ms. Gonzalez had failed to provide the required documentation.

 

[5]               Ms. Mora appealed the decision to the IAD. On January 10, 2012, the IAD dismissed the appeal. The IAD found that the Visa Officer provided Ms. Gonzalez with at least three opportunities to provide the missing documentation and that Ms. Gonzalez had failed to take advantage of these opportunities. The IAD found that the Visa Officer’s decision was reasonable.

 

[6]               On January 30, 2012, Ms. Mora sought leave and judicial review of the IAD’s refusal.

 

[7]               On February 29, 2012, Ms. Mora applied to the IAD to reopen her sponsorship appeal, arguing that the IAD had breached principles of natural justice by failing to inform her that she had a right to pursue her appeal on humanitarian and compassionate [H&C] grounds and also failed to address H&C factors in its decision.

 

[8]               On March 23, 2012, Mr. Justice O’Keefe dismissed leave by Order.

 

[9]               On July 5, 2012, the IAD issued reasons granting Ms. Mora’s motion for reconsideration.

 

III.       Issues

 

1.                   Did the IAD Member err in reopening Ms. Mora’s appeal?

2.                  Did the IAD commit a breach of natural justice when it rendered its initial decision on January 10, 2012?

 

IV.       Legislation

 

[10]           Subsections 63(1) and 67(1) and section 71 of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA], provide as follows:

 

V.        Standard of review

 

[11]           The parties disagree on the standard of review to be applied on the first issue. The Minister argues that the issue involves questions of law and jurisdiction and should, therefore, be reviewed on a standard of correctness. Ms. Mora argues that the issue concerns the IAD’s interpretation of its home statute and should normally be reviewed on a reasonableness standard (see Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190 at para 54 [Dunsmuir]). Ms. Mora argues that the exceptions to this rule do not apply in this case. That is to say, the interpretation of the IRPA in this case does not involve “constitutional questions, questions of law that are of central importance to the legal system as a whole and that are outside the adjudicator’s expertise, […] ‘[q]uestions regarding the jurisdictional lines between two or more competing specialized tribunals’ [and] true questions of jurisdiction or vires” (Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association, 2011 SCC 61 at para 30).

 

[12]           The Court finds that the standard of review applicable to the first issue raised by this application is correctness. First, it is clear from the IAD’s decision that determining this issue did not involve interpreting its home statute so much as the common law on the “legal principles governing the jurisdiction of administrative tribunals at large to reopen or rehear a matter already decided” (Nazifpour v Canada (Minister of Citizenship and Immigration), 2007 FCA 35 at para 33 [Nazifpour]; and Chandler v Alberta Association of Architects, 1989 CanLII 41 (SCC), [1989] 2 SCR 848 [Chandler]). Second, to the extent that the issue concerns the interpretation of s. 71 of the IRPA, the Court finds that the interpretation involves a “true question of jurisdiction or vires”. That is a situation where “the tribunal must explicitly determine whether its statutory grant of power gives it the authority to decide a particular matter” and as such, the correctness standard will be applied (Dunsmuir, above, at para 59). Section 71 constitutes a purely jurisdictional provision limiting the IAD’s power to reopen an appeal.

 

[13]           Both parties and the Court acknowledge that the standard of review to be applied to the second issue is also that of correctness (see Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 43).

 

VI.       Parties submissions

 

A.        The Minister’s submissions

 

            1.         Did the IAD Member err in reopening Ms. Mora’s appeal?

 

[14]           The Minister submits that the IAD’s jurisdiction to reopen an appeal in cases where there was a breach of natural justice is limited by section 71 of the IRPA to cases where the applicant is 1) a foreign national; and 2) under a removal order but has yet to leave Canada. The Minister points out that Ms. Mora “does not meet either prerequisite, as she is a citizen of Canada and this is a sponsorship application, not a removals case” (Applicant’s Memorandum of Argument, para 18).

 

[15]           The Minister submits that the Member’s reliance on the Supreme Court of Canada’s decision in Chandler, above, in reopening the appeal was misplaced. The Minister argues that the Court in Chandler found that the principle of functus officio limited the reopening of matters by administrative tribunals to cases “which are subject to appeal only on a point of law” (Chandler, above, at para 21). The Minister alleges that “[l]eave in the Federal Court may be granted in more circumstances than on a point of law alone - breaches of procedural fairness and erroneous findings of fact are also justifications for judicial intervention” (Applicant’s Memorandum of Argument, para 21). The Member, therefore, erred in relying on Chandler, in establishing the IAD’s jurisdiction to reopen the appeal of a sponsorship application.

 

[16]           The Minister’s next argument is that the IAD cannot exercise a common law equitable remedy to resolve breaches of natural justice because it is a creature of statute. The Minister relies on the following passage from Nazifpour, above, to justify his contention:

“The IAD is a creature of statute, and its implicit power to reopen to consider new evidence is necessarily statutory in origin. The fact that the courts inferred this power from its express powers does not make the IAD’s pre-IRPA right to reopen a “common-law” right for present purposes” (Nazifpour, above, at para 60).

 

[17]           Finally, the Minister invokes the principle of statutory interpretation known as expressio unius est exclusio alterius to argue that “[b]y specifically mentioning that reopening is only available to foreign nationals facing removal, it is a logical conclusion that Parliament considered and rejected other situations, such as sponsorship, in which reopening may apply” (Applicant’s Memorandum of Argument, para 25).

 

2.                  Did the IAD commit a breach of natural justice when it rendered its initial decision on January 10, 2012?

 

[18]           In the event that the Court finds that the IAD had the jurisdiction to reopen the appeal for a breach of natural justice in this case, the Minister submits that there was no such breach. The alleged breach of natural justice is that the IAD Member did not consider humanitarian and compassionate grounds [H&C] in deciding whether the appeal should be allowed. The Minister insists that it was Ms. Mora’s duty to raise those grounds but failed to do so. The IAD Member was not compelled to consider the factors ex officio. The Minister underlines that the Ms. Mora had the option to be represented by counsel but chose not to do so. The Minister invokes this Court’s decision in Canada (Minister of Citizenship and Immigration) v Ishmael, 2007 FC 212 at paras 24 and 25, where Justice Shore explained that:

24        Section 71 of the IRPA, requires that, for the Panel to have the jurisdiction to re-open an appeal, there must be a failure to observe a principle of natural justice for which the IAD itself, is responsible. The breach must be the fault of the IAD, not of the wilful choice (or deemed wilful choice) of the person concerned.

 

25        If any breach of natural justice occurred from Mr. Ishmael’s wilful choice (or deemed wilful choice) to miss the hearing, then, to allow the request to re-open on the basis, of that wilful choice (or deemed wilful choice) of Mr. Ishmael to miss the hearing, would be to disregard the purpose for which the right to re-open exists.

 

[19]           Counsel for the Minister also underlined, before the Court, that Ms. Mora had received from the IAD the Information guide- General Procedures for all Appeals to the Immigration Appeal Division, attached to a letter dated September 2, 2011, which clearly set out in section 2 that “Also in some cases, the IAD Member may be able to consider humanitarian and compassionate reasons to allow your appeal even if the CBSA/CIC or ID decision was correct in law and fact”. The guide also specified, in that same section 2, that: “To show that the CBSA/CIC or ID decision was wrong, or in some cases, that there are sufficient humanitarian and compassionate reasons, you may need to provide documents to be used at your hearing.”

 

[20]           The Minister concludes that the Ms. Mora’s “choice to proceed without counsel and her choice not to raise humanitarian and compassionate grounds cannot justify a reopening of her hearing” (Applicant’s Memorandum of Argument, para 31).

 

[21]           Finally, relying on Justice Harrington’s decision in Skandrovski v Canada (Minister of Citizenship and Immigration), 2005 FC 341 at para 15 [Skandrovski], the Minister argues that not informing the IAD when seeking to reopen the appeal that the Federal Court had denied leave for judicial review on the same grounds constituted an abuse of process. Such a situation could result in “the [IAD] unwittingly and unknowingly in effect review a decision of the [Federal] Court not to grant leave” (Skandrovski, above, at para 15).

 

B         Ms. Mora’s submissions

 

            1.         Did the IAD Member err in reopening Ms. Mora’s appeal?

 

[22]           Ms. Mora argues that the IRPA is silent on the IAD’s jurisdiction to reopen a sponsorship appeal for a breach of natural justice. Section 71 was introduced by Parliament in order “ […]  to remove the ability of the [IAD] to reopen a removal order appeal for new evidence before an appellant was deported as it was previously authorized to do […]” (Respondent’s Memorandum of Argument, para 32). Ms. Mora underlines that this was the interpretation the Federal Court of Appeal gave to s. 71 in Nazifpour, above, at para 80:

“[…] [section 71] implicitly removes the IAD’s jurisdiction to reopen appeals on the ground of new evidence, a jurisdiction which would otherwise be judicially inferred from the nature of the statutory discretion to relieve against deportation […]”

 

[23]           In arriving at this conclusion, Ms. Mora notes that the Court of Appeal engaged in a thorough statutory interpretation analysis. It found that the purpose and intent of section 71 could be discerned from parliamentary debates and documents. One such document was “Bill C-11: Clause by Clause Analysis” prepared to explain to parliamentarians each provision of the Bill. The explanation provided for section 71 was as follows:

“Under the current regime, there is no legislative provision permitting the Immigration Appeal Division to reopen an appeal once it has rendered a decision on a case. It is a common law principle, however, that a tribunal can reopen a case if there has been a fundamental error of justice. Bill C-11 confirms the authority of the Immigration Appeal Division to re-open an appeal but, in order to prevent this mechanism from being used as a tactic to delay removal, it clearly limits reopenings to instances where there has been a breach of the common law principle of natural justice” [Emphasis added by Court of Appeal in Nazifpour, above at para 67].

 

[24]           Ms. Mora contends, therefore, that section 71 was not intended to remove the general power of administrative tribunals to reopen or rehear a matter for a breach of natural justice as described in Chandler, above, at paras 21-22 and 24-25:

21        To this extent, the principle of functus officio applies. It is based, however, on the policy ground which favours finality of proceedings rather than the rule which was developed with respect to formal judgments of a court whose decision was subject to a full appeal. For this reason 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.

 

22        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. This was the situation in Grillas, supra.

 

[…]

 

24        In this appeal we are concerned with the failure of the Board to dispose of the matter before it in a manner permitted by the Architects Act. The Board intended to make a final disposition but that disposition is a nullity. It amounts to no disposition at all in law. Traditionally, a tribunal, which makes a determination which is a nullity, has been permitted to reconsider the matter afresh and render a valid decision. In Re Trizec Equities Ltd. and Area Assessor Burnaby-New Westminster (1983), 147 D.L.R. (3d) 637 (B.C.S.C.), McLachlin J. (as she then was) summarized the law in this respect in the following passage, at p. 643:

 

I am satisfied both as a matter of logic and on the authorities that a tribunal which makes a decision in the purported exercise of its power which is a nullity, may thereafter enter upon a proper hearing and render a valid decision: Lange v. Board of School Trustees of School District No. 42 (Maple Ridge) (1978), 9 B.C.L.R. 232 (B.C.S.C.); Posluns v. Toronto Stock Exchange et al. (1968), 67 D.L.R. (2d) 165, [1968] S.C.R. 330. In the latter case, the Supreme Court of Canada quoted from Lord Reid's reasons for judgment in Ridge v. Baldwin, [1964] A.C. 40 at p. 79, where he said:

 

I do not doubt that if an officer or body realises that it has acted hastily and reconsiders the whole matter afresh, after affording to the person affected a proper opportunity to present its case, then its later decision will be valid.

 

There is no complaint made by Trizec Equities Ltd. with respect to the hearing held on March 19th. Accordingly, while the court exceeded its jurisdiction by purporting to increase the assessments on the morning of March 17, 1982, its subsequent decision of March 19, 1982, stands as valid.

 

25        If the error which renders the decision a nullity is one that taints the whole proceeding, then the tribunal must start afresh. Cases such as Ridge v. Baldwin, [1964] A.C. 40 (H.L.); Lange v. Board of School Trustees of School District No. 42 (Maple Ridge) (1978), 9 B.C.L.R. 232 (S.C.B.C.) and Posluns v. Toronto Stock Exchange, [1968] S.C.R. 330, referred to above, are in this category. They involve a denial of natural justice which vitiated the whole proceeding. The tribunal was bound to start afresh in order to cure the defect.

 

[25]           Based on the above passages, Ms. Mora claims that the Minister’s argument on the inapplicability of Chandler to the matter at hand is wrong on two fronts. First, an applicant does not have a full right to appeal the IAD’s decision but rather a right to judicial review with leave under ss. 72(1) of the IRPA. The principle of functus officio, therefore, would not apply as strictly to the IAD’s decision (see Chandler, above, at para 21). Second, the Supreme Court, in Chandler, held that an administrative tribunal may always reopen (i.e. independent of the principle of functus officio) or rehear a case where an error renders its decision null. Chandler, according to Ms. Mora, recognized that a denial of natural justice constituted such an error (see Chandler, above, at para 25).

 

[26]           Finally, Ms. Mora submits that the Minister’s contention that interpreting s. 71 using the principle of expressio unius est exclusio alterius would exclude reopening a sponsorship appeal for a breach of natural justice is incorrect. Ms. Mora points to the application of the principle to s. 71 in Nazifpour in support of her position:

“The IAD’s jurisdiction to reopen a valid decision to consider new evidence was derived from the particular statutory function and powers of the IAD on an appeal against a deportation order to which the discretionary or “equitable” grounds apply. In contrast, all tribunals presumptively have the power to rehear a matter for a breach of the principles of natural justice which has rendered the first decision a nullity. In my view, the implied exclusion presumption would provide more support to an argument that section 71 excludes the IAD’s jurisdiction to reopen a decision rendered a nullity by a jurisdictional error other than a breach of the principles of natural justice” (Nazifpour, above, at para 56).

 

[27]           Section 71 was intended to “express the common law principle for the purpose of implicitly excluding the right of the IAD to reopen a removal order appeal on equitable grounds. The question of reopening an appeal on equitable grounds simply does not arise before the Appeal Division in this case” (Respondent’s Memorandum of Argument, para 39).

 

2.                  Did the IAD commit a breach of natural justice when it rendered its initial decision on January 10, 2012?

 

[28]           Ms. Mora argues the IAD Member, in the original proceeding, breached a principle of natural justice by failing to consider H&C grounds before rendering his decision and insists that paragraph 67(1)(c) of the IRPA requires the Member to consider those factors ex officio. Ms. Mora’s sole authority is the IAD Member’s decision of July 5, 2012. The pertinent passage reads as follows:

[6]        In his decision in the first proceeding the Member thoroughly considered the evidence and submissions as they were presented in relation to the legal validity of the refusal. He found the visa officer’s decision is valid in law and dismissed the appeal. However, the decision is silent with respect to consideration of any humanitarian and compassionate factors. In the first proceeding the Member appears to have failed to consider one of the two aspects of the appeal, resulting in a denial of natural justice for its failure to exercise its jurisdiction in the matter (Applicant’s Application Record, p 51).

 

[29]           At the hearing, counsel for Ms. Mora directed the Court to the letter sent by the IAD on September 2, 2011, acknowledging the appeal and instructing Ms. Mora to provide her written position to the IAD registry and to the Minister’s counsel by September 30, 2011. He underlined that said letter was silent on the Appellant’s right to raise H&C considerations. Counsel also argued that in view of the fact that this matter was considered in chambers, the Appellant had not been properly informed that she was entitled to bring forward H&C reasons to allow her appeal.

 

[30]           Finally, in response to the Minister’s abuse of process claim, the Ms. Mora submits that she discontinued her leave application once she retained counsel and decided to pursue the reopening application. Ms. Mora received endorsement from the Minister’s counsel on a Notice of Discontinuance but was unaware that the notice needed to be filed with the Federal Court. The Federal Court subsequently dismissed the application, not on its merits but rather for failure to file an application record.

 

VII.     Analysis

 

1.         Did the IAD Member err in reopening Ms. Mora’s appeal?

 

[31]           For the reasons brought forward by Ms. Mora and those that follow, the Court finds that the IAD has the jurisdiction to rehear an appeal of a sponsorship application that was vitiated or nullified due to a breach of natural justice.

 

[32]           The Court disagrees with the Minister’s contention that section 71 removes the IAD’s presumptive ability, as an administrative tribunal, to rehear a case for a breach of natural justice as described in paragraph 24 of Chandler, above. This jurisdiction exists despite the principle of functus officio because, in such cases, no disposition is considered to have been made at all since the decision is null ab initio due to the breach.

 

[33]           Section 71 specifically mentions foreign nationals subject to a removal order because it was intended to eliminate their previously held right to a reopening of an appeal on the ground of new evidence (see Nazifpour, above, at para 80. It was not intended to prevent the IAD from exercising its general jurisdiction to reopen on a breach of natural justice ground for other categories of applicants who may validly appeal their decisions to the IAD. Under ss. 63(1) of the IRPA, “[a] person who has filed […] an application to sponsor a foreign national as a member of the family class may appeal to the [IAD] against a decision not to issue the foreign national a permanent resident visa”. This Court sees no reason, in either the legislation or the common law, why the IAD should not be able to rehear such an Applicant’s case should it have been nullified by a breach of natural justice.

 

2.                  Did the IAD commit a breach of natural justice when it rendered its initial decision on January 10, 2012?

 

[34]           The Court finds that the Member’s decision that the original proceeding was nullified by a breach of natural justice was incorrect.

 

[35]           The IAD Member, in the initial proceeding, did not have an obligation to consider H&C grounds because Ms. Mora failed to raise them in her submissions. The Court of Appeal made a similar conclusion in Owusu v Canada (Minister of Citizenship and Immigration), 2004 FCA 38 at para 5 :

5          An immigration officer considering an H & C application must be "alert, alive and sensitive" to, and must not "minimize", the best interests of children who may be adversely affected by a parent's deportation: Baker v. Canada (Minister of Citizenship and Immigration ), [1999] 2 S.C.R. 817 at para. 75. However, this duty only arises when it is sufficiently clear from the material submitted to the decision-maker that an application relies on this factor, at least in part. Moreover, an applicant has the burden of adducing proof of any claim on which the H & C application relies. Hence, if an applicant provides no evidence to support the claim, the officer may conclude that it is baseless. [Emphasis added]

 

[36]           In Kumari v Canada (Minister of Citizenship and Immigration), 2003 FC 1424 at para 9, Justice O’Reilly explained the issue as follows:

9          Finally, the applicants submit that the officer should have considered humanitarian and compassionate factors in their favour. However, in the absence of an explicit request, the officer was under no obligation to consider the applicants' case on humanitarian and compassionate grounds: Chen v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 871 (QL) (T.D.); Chen v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 275 (QL) (T.D.). In his interview with the visa officer, Mr. Chand described circumstances that could have formed the basis of humanitarian and compassionate consideration. The applicants suggest that this amounted to an implicit request to which the officer was bound to respond. In my view, the officer was not obliged to respond to an implicit request.

 

[37]           There is an exception to this rule, however. Section 5.27 of the Inland Processing Manual 5 [IP 5] states that an officer:

“ […] may use discretion to consider, on their own initiative, whether an exemption on H&C grounds would be appropriate.

 

When the applicant does not directly request an exemption, but facts in the application suggest that they are requesting an exemption for the inadmissibility, officers should treat the application as if the exemption has been requested.” [Emphasis added in the original]

 

[38]           At paragraph 58 of Brar v Canada (Minister of Citizenship and Immigration) 2011 FC 691, Justice Russell interpreted section 5.27 to mean that there is a duty to consider H&C factors when the facts or submissions imply that they are being asked to be considered.

 

[39]           After reviewing the documents before the IAD Member, in the initial proceeding, the Court finds that the facts submitted by Ms. Mora did not imply a request that H&C factors be considered. The Court acknowledges that the hearing took place in chambers yet, the Information Guide sent to Ms. Mora clearly indicated that H&C reasons could be raised and would be considered. Ms. Mora, having been properly notified in writing of her right to raise such H&C considerations, failed to avail herself of that opportunity. In such instance, the IAD Member had no obligation to consider H&C grounds and, as a result, there was no breach of natural justice.

 

VIII.    Certified questions

 

[40]           Counsel for Ms. Mora proposed the following two questions for certification:

1.         Whether the standard of review of the question whether the IAD has jurisdiction to reopen for a breach of natural justice is based on reasonableness or correctness?

2.         Whether the IAD has the jurisdiction to reopen a sponsorship appeal on the basis of a breach of natural justice?

 

[41]           As counsel for the Minister had not been apprised that questions would be submitted to the Court for certification, as questions of general interest, he was granted by this Court until March 15 to respond in writing.

 

[42]           Having reviewed the written comments sent by the Minister’s counsel, the Court will not certify any questions for the following reasons. As for the first question, the jurisprudence is well established on the applicable standard of review and, therefore, the question fails to meet the required test. More importantly, neither the first nor the second question are dispositive of this case (see Varela v Canada (Minister of Citizenship and Immigration), 2009 FCA 145 (CanLII), [2010] 1 FCR 129). The answer to either or both questions will not change the result. 

JUDGMENT

THIS COURT’S JUDGMENT is that

1.         The application is allowed, the decision to reopen the appeal is quashed, and the IAD’s January 10, 2012 decision is maintained.

2.         There is no question of general importance for certification.

 

 

"André F.J. Scott"

FEDERAL COURT

 

SOLICITORS OF RECORD

 

 

DOCKET:                                         IMM-7870-12

 

STYLE OF CAUSE:                        THE MINISTER OF CITIZENSHIP

                                                            AND IMMIGRATION

                                                            v

                                                            MARIA JADE MORA

 

 

PLACE OF HEARING:                  Vancouver, British Columbia

 

DATE OF HEARING:                    March 5, 2013

 

REASONS FOR JUDGMENT

AND JUDGMENT:                         SCOTT J.

 

DATED:                                            April 3, 2013

 

 

 

APPEARANCES:

 

Edward Burnet	FOR THE APPLICANT
Andrew Z. Wlodyka	FOR THE RESPONDENT

 

SOLICITORS OF RECORD:

 

William F. Pentney Deputy Attorney General of Canada Vancouver, British Columbia	FOR THE APPLICANT
Wlodyka MacDonald Teng Vancouver, British Columbia	FOR THE RESPONDENT