Kurukkal v. Canada (Citizenship and Immigration), 2009 FC 695 (2009)

Parts:Kurukkal v. Canada (Citizenship and Immigration)
Reporting Judge:The Honourable Madam Justice Mactavish
Docket Number:IMM-309-08
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Federal Court

Cour fédérale

Date: 20090703

Docket: IMM-309-08

Citation: 2009 FC 695

Ottawa, Ontario , July 3, 2009

PRESENT: The Honourable Madam Justice Mactavish

BETWEEN:

KAMADCHY SUNDARESWARAIYE GURUMOORTHI KURUKKAL

Applicant and

THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

Respondent

REASONS FOR JUDGMENT AND JUDGMENT

[1] Kamadchy Sundareswaraiye Gurumoorthi Kurukkal’s application for permanent residence on humanitarian and compassionate grounds was refused because he failed to provide a death certificate for his late wife when asked to do so by the immigration officer assessing his application.

[2] Mr. Kurukkal provided the death certificate a few days after being notified of the negative decision, and asked that the decision be reconsidered in light of the new evidence. The respondent refused to reopen or re-visit Mr. Kurukkal’s H&C application, asserting that there was no power to do so, as a result of the doctrine of functus officio .

[3] The principle issue on this application for judicial review is whether the doctrine of functus officio applies in the context of H&C applications, so as to prevent an immigration officer from considering new evidence. For the reasons that follow, I have concluded that the doctrine of functus officio does not apply in the context of H&C decisions. As a consequence, the application for judicial review will be allowed.

I. Background

[4] Mr. Kurukkal is a 68 year old Tamil from the north of Sri Lanka, who came to Canada on a visitor’s visa in 2001. He has one son in Canada, and two daughters still living in Sri Lanka.

[5] When the applicant applied for his visitor’s visa in 2001, he stated on his application that his wife would not be accompanying him to Canada, because she did not have a passport. Having a wife staying behind in Sri Lanka would have assisted Mr. Kurukkal with his visa application, as it strengthened his ties to that country, making it more likely that he would return home at the end of his visit.

[6] In contrast, in Mr. Kurukkal’s H&C application, he stated that he was a widower, and that his wife had died in 2000. The inconsistency in the information provided by Mr. Kurukkal with respect to his wife’s status was quite understandably a cause for concern, and led the immigration officer to ask him to produce a death certificate for his wife. This request was made on August 17, 2007.

[7] When no death certificate was received, the officer spoke to Mr. Kurukkal’s son by telephone on October 12, 2007, asking where the certificate was. Five days later, the officer followed up with a letter to Mr. Kurukkal, confirming the request for a copy of the death certificate. By letter dated October 29, 2007, Mr. Kurukkal’s son advised the officer that another 15 days were needed to obtain the death certificate from Sri Lanka, and sought an extension of time.

[8] Fifteen days came and went, and no death certificate was provided to the officer, nor was there a request for a further extension of time in which to provide the certificate from either Mr. Kurukkal or his son. Consequently, on November 26, 2007, the officer assessed Mr. Kurukkal’s H&C application, and decided that it should be refused.

[9] The officer’s decision was communicated to Mr. Kurukkal on December 14, 2007. Although additional reasons are cited in the officer’s notes, the only reason given in the decision letter for refusing the application was Mr. Kurukkal’s failure to satisfy the officer that he was in fact a widower. I need not address the merits of this decision, as no application for judicial review has been brought in relation to it.

[10] Mr. Kurukkal says that he received a copy of the death certificate for his wife by mail from Sri Lanka the following day. On December 18, 2007, Mr. Kurukkal’s counsel wrote to the officer, explaining that the delay in producing the certificate was the result of the on-going state of turmoil in Colombo. Counsel enclosed a copy of the death certificate with the letter, and requested that the refusal decision be reconsidered.

[11] By letter dated January 9, 2008, Mr. Kurukkal’s request for reconsideration was refused. As was noted earlier, the respondent took the position that there was no power to reopen or re-visit Mr. Kurukkal’s H&C application because of the doctrine of functus officio . No consideration appears to have been given to the death certificate itself, as it related to the merits of Mr. Kurukkal’s H&C application.

[12] It is the decision refusing to reconsider the original H&C decision that underlies this application.

[13] Mr. Kurukkal sought a stay of his removal pending the determination of his application for judicial review. The motion was dismissed, without written reasons, although it appears from the record that the stay was refused because of the Court’s finding in relation to the issue of irreparable harm. Mr. Kurukkal was returned to Sri Lanka in March of 2008.

[14] An affidavit filed by the respondent indicates that since returning to Sri Lanka, Mr. Kurukkal has filed a further H&C application. Although there is some confusion in the record as to precisely when the second H&C application was filed, it is common ground that it was filed in the Spring of 2008.

[15] While acknowledging that he has been able to file a further H&C application, which includes a copy of his wife’s death certificate, Mr. Kurukkal says that if he is required to apply from overseas, it could take up to four years for his second application to be processed. He asserts that this will cause him grave prejudice, as he says he has no home in Sri Lanka, and that his country is currently a war zone. Mr. Kurukkal says that the reconsideration of his inland H&C application would likely result in a much faster decision.

II. Standard of Review

[16] If applicable, the effect of doctrine of functus officio is that a decision-maker will lose jurisdiction once a decision is made: see Brown and Evans, Judicial Review of Administrative Action in Canada (Toronto: Canvasback Publishing, 1998), at 12-99.

[17] As a consequence, the question of whether an H&C officer has the ongoing power to reconsider a decision once it has been made is a true question of jurisdiction, as contemplated by Dunsmuir v. New Brunswick , 2008 SCC 9 at para. 59. As such, the officer’s determination that the doctrine of functus officio applies in the context of H&C decisions is reviewable on the standard of correctness.

III. Analysis

[18] I should note at the outset that the respondent has not argued that the January 9, 2008 letter refusing to reconsider Mr. Kurukkal’s H&C application was merely a courtesy letter, and was thus not a “decision” that was amenable to judicial review. I take the respondent to have conceded that the January 9, 2008 letter was indeed a fresh “decision” that is amenable to judicial review.

[19] Moreover, there is no suggestion that Mr. Kurukkal’s request for reconsideration of his H&C application was made for a collateral purpose – namely to extend the time for...

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