Federal Court Decisions

Date: 20050808

Docket: IMM-9799-04

Citation: 2005 FC 1073

BETWEEN:

BHARAT BANSHI CHUDAL

Applicant(s)

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent(s)

REASONS FOR ORDER

HUGHES J.

[1]    This is an application by way of judicial review of a decision made by the Pre-Removal Risk Assessment (PRRA) Officer, purportedly dated September 23, 2004, wherein the Applicant Chudal's application for protection, made by way of documentary hearing, from removal to Nepal, was rejected.

[2]    The issue before the Court is as to when a decision of a PRRA Officer can be said to be final, that is, at what point may the Officer properly refuse to consider further materials and submissions on behalf of the person in question.

[3]    The essential facts are straightforward. The Applicant Chudal is a citizen of Nepal, he came to Canada in September 2002 and claimed refugee status. That claim was refused in June, 2003. In April 2004 the Applicant was asked to present himself to the Ottawa office of Canada Border Services Agency on 3 May 2004, which he did. At that time, he was given a Pre-Removal Risk Assessment (PRRA) application, which he completed and submitted together with a number of supporting documents. The Applicant retained legal counsel who made written submissions on his behalf by letter sent 2 June, 2004. Further documents were submitted by counsel on behalf of the Applicant in August and in the beginning of September 2004.

[4]    On October 8, 2004 the Applicant's counsel submitted yet further documents dealing with conditions in Nepal. In respect of these submissions, the Applicant's legal counsel received on 15 October, 2004 a facsimile transmission from Canada Border Services Agency stating:

This is in response to your FAX request of 08 October 2004 submitting additional information that you requested to be taken into consideration in this case.

The information you have provided will not be considered as the PRRA decision was finalized on 23 September 2004. The file has been returned to the CBSA office in Ottawa and that office will be contacting Mr. Chudal to deliver the decision to him.

[5]    The Ottawa branch of the Canada Border Services Agency summoned the Applicant to appear at its Ottawa offices on November 10, 2004, which he did, and at that time he was handed a written decision bearing the date "23 September 2004" in which he was informed that his application had been rejected. The copy of that decision in the Court record bears a handwritten note which counsel are both agreed was written by the an officer of the Agency, stating "given to client on 10/11/04" and are agreed that the "client" is the Applicant and the date is 10 November, 2004.

[6]    There is no direct evidence as to when the decision at issue was actually written, or signed, or subsequently handled. It bears a date of "23 September 2004", it was referred to in the 15 October 2004 communication previously quoted as having been "finalized on 23 September 2004". It was not actually given to the Applicant until 10 November 2004.

[7]    The issue is whether the decision of 23 September 2004 should be quashed having regard to the fact that further submissions were made on behalf of the Applicant subsequent to that date, and before a notice that a decision had been made was communicated to the Applicant on 15 October, 2004, without saying what that decision was. The actual decision was not delivered to the Applicant until 10 November, 2004.

[8]    Applicant's counsel submits that there was a breach of procedural fairness in the PRRA Officer not receiving and considering the further submissions and, that the further submissions may have had an effect on the decision as ultimately communicated to the Applicant. Applicant's counsel also made submissions as to various alleged errors in the findings made in any event, as set out in that decision.

[9]    The Respondent (the Minister) submits that as of 23 September 2004, the PRRA decision was final and the Officer making that decision was functus and could not receive or consider further submissions. Respondent's counsel also submits that the further submissions are not of sufficient significance to be material. Respondent's counsel submits that the decision was sound and ought not to be set aside.

ANALYSIS

[10]            It is important to examine the nature of a PRRA hearing. The sections of the Immigration and Refugee Protection Act S.C. [2001], c. 27 dealing with such hearings, sections 112 to 114 were introduced into the Act in 2001 as explained by von Finckenstein J. in Mojzisikova v. Canada (MCI),[2004] F.C. 48 at paragraph 11:

[11] The PRRA is an innovation in the new Act which is designed to ensure that the vast majority of individuals facing removal from Canada are given a full but expedited chance to establish that they face a risk of torture or gross mistreatment on their return to a home country. In most cases today, the RPD has first undertaken an assessment of whether or not the applicant is a Convention Refugee or a Person in need of protection. Therefore, the PRRA Officer is limited by the first half of subsection 113 (a) to considering evidence which arose after the RPD hearing.

[11]            There is an obligation on the PRRA Officer to consider the latest relevant and significant evidence available. As Pinard J. said in Omar v. Solicitor General of Canada, [2004] F.C. 1740 at paragraph 7:

[7] As I have indicated earlier, the new evidence in question (an affidavit of Shayana Kadidal and an affidavit of Donald Duran, and their exhibits) was considered in the context of the applicant's interim motion for a stay for the sole purpose of determining the issue of irreparable harm. Having thus found that the applicant would suffer such irreparable harm, in the nature of persecution, serious risk to his life and/or his security, I consider that it would now be irresponsible for me to dismiss this application for judicial review without allowing the new evidence to be properly weighed and assessed together with the rest of the evidence. It is the applicant's life and security of the person which is at stake here. The PRRA Officer's decision is determinative in that regard and, absent bad faith or gross negligence on the part of the applicant, I am of the opinion that the latest relevant and significant evidence available must be considered prior to the removal of the person from Canada.

[12]            The determination as to whether a decision of an administrative tribunal is functus must be considered on a more flexible and less formalistic basis than that of a Court decision. In speaking for the majority of the Supreme Court of Canada, Sopinka J. in Chandler v. Alberta Association of Architects, [1989] 2 S.C.R. 848 said at pages 861-862:

I do not understand Martland J. to go so far as to hold that functus officio has no application to administrative tribunals.    Apart from the English practice which is based on a reluctance to amend or reopen formal judgments, there is a sound policy reason for recognizing the finality of proceedings before administrative tribunals.    As a general rule, once such a tribunal has reached a final decision in respect to the matter that is before it in accordance with its enabling statute, that decision cannot be revisited because the tribunal has changed its mind, made an error within jurisdiction or because there has been a change of circumstances.    It can only do so if authorized by statute or if there has been a slip or error within the exceptions enunciated in Paper Machinery Ltd. v. J. O. Ross Engineering Corp., supra.

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.

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.

Furthermore, if the tribunal has failed to dispose of an issue which is fairly raised by the proceedings and of which the tribunal is empowered by its enabling statute to dispose, it ought to be allowed to complete its statutory task.    If, however, the administrative entity is empowered to dispose of a matter by one or more specified remedies or by alternative remedies, the fact that one is selected does not entitle it to reopen proceedings to make another or further selection.    Nor will reserving the right to do so preserve the continuing jurisdiction of the tribunal unless a power to make provisional or interim orders has been conferred on it by statute.    See Huneault v. Central Mortgage and Housing Corp. (1981), 41 N.R. 214 (F.C.A.)

[13]            In the present case the Respondent claims that the decision of the PRRA Officer was "finalized" 23 September 2004. We have no direct evidence of that. The evidence shows that the first indication of the existence of a decision, but not what the decision was, was the communication of 15 October, 2004 to Applicant's counsel. The decision itself was not communicated until 10 November 2004. No explanation as to the delay was put in evidence.

[14]            In the meantime, the Applicant's counsel submitted two further materials, both being Human Rights Watch reports as to conditions in Nepal. One was submitted 8 October, 2004, the second 27 October 2004, that is, one before the Applicant had notice that a "decision" had been "finalized" (but not its effect) and one after. Both were submitted before the actual decision was delivered to the Applicant.

[15]            In Selliah v. Canada (MCI) [2004] F.C. 872 Blanchard J. dealt with the case of a PRRA Officer who had uncovered information subsequent to submissions having been made on behalf of the applicant, yet failed to disclose that information to the applicant and seemingly relied upon that information in arriving at a decision unfavourable to the applicant. Blanchard J. found, in paragraph 36:

"¼fairness requires disclosure of evidence that is novel and significant and where it is evidence that may effect the decision."

[16]            All of the above jurisprudence indicates that a PRRA Officer is to take into account all evidence that may effect the decision, and that all such evidence presented until the time that the decision is "final" is to be taken into account.

[17]            As to when the decision is "final", the Respondent's counsel submitted two cases: Tambwe-Lubemba v. Canada (MCI) [2000] F.C.J. 1874 and Avci v. Canada (MCI) [2003] F.C.A. 359. Both cases deal with decisions of the Refugee Board, not a PRRA Officer, and both indicate that such a decision is "final" once it is signed and transmitted to the Registrar.

[18]            In the case of a PRRA Officer's decision, the procedure is less formal than that of the Refugee Board. The PRRA Officer can receive submissions, require an oral hearing if so advised. A decision is made and transmitted to the local CBSA office to convey to the Applicant, often in conjunction with a removal order in the case of a negative decision so as to avoid the possibility that the individual may attempt to avoid removal. On occasion the PRRA Officer will advise the Applicant to submit materials before a certain date because on that date a decision will be made.

[19]            In the circumstances of a PRRA Officer's decision, the Officer has an obligation to receive all evidence which may affect the decision until the time that such decision is made. It is reasonable to consider that such decision is not made until it has been written and signed and notice of the decision, even if not its contents, has been delivered to the Applicant. Accordingly the decision at issue here was "made" as of 15 October, 2004, the date that its existence was communicated to the Applicant. In the case where the Applicant has been advised that a decision will be made on a future date, it is reasonable to consider that the decision is made on that future date.

[20]          The PRRA Officer should have received the materials submitted 8 October 2004 since, at that time, the Applicant had no notice that a decision had been made or when it would be made. That material addresses the continuing situation in Nepal as between Maoists and the government, and refers to it as "¼Nepal's escalating civil war¼". This material may well have had an effect on the PRRA Officer's decision, at least where it states, for instance "¼I do not find the evidence before me confirms that Nepal is in a state of civil war." Further the material stated "¼Nepalis under attack or threat usually have nowhere to turn for protection or redress." This may well have had an impact on the PRRA Officer's decision where it states "¼I do not find the documentary evidence I have reviewed leads me to conclude the Nepal authorities are unable to protect its citizens."

[21]            I find that the communication of 8 October, 2004 may have had relevance to the decision and should have been considered before the decision was made final, that is, before it was written, signed and its existence communicated to the Applicant. I will make an Order quashing the decision apparently dated 23 September 2004 and require that the matter be considered by a different Officer having regard not only to the material submitted 8 October, 2004, but all other material that was before the original Officer, since the material must be considered as a whole and not simply as a rebuttal to the decision ultimately revealed on 10 November 2004

[22]            I have considered the parties' submissions as to certification of a question for the Federal Court of Appeal and find that there is no requirement for such certification.

[23]            There will be no Order as to costs.

"Roger T. Hughes"