Date: 20000914
Docket: IMM-5139-99
BETWEEN:
OXANA BRYSENKO
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
REED, J.:
[1] On February 2, 1999, Michael Light, a temporary duty visa officer in Kiev, interviewed the applicant for permanent residence in Canada. He awarded her 74 points. He indicated in his CAIPs notes that he was "reasonably satisfied" that the applicant was working as an accredited auditor, and that the applicant was "provisionally accepted" on selection criteria. All additional documentation he had requested was provided by the applicant. The applicant and her family undertook the required medical examinations and the results were positive. The application was essentially complete with the only remaining step being the issuance of a visa.
[2] On March 30, 1999, Mr. Light left the Kiev office. Ms. Massey, another visa officer, was given the applicant's file for continued processing. On April 9, 1999, Ms. Massey entered notes into the computer indicating that, while she did not like to question another officer's decision, she was not comfortable with the decision that had been made concerning the applicant's academic qualifications:
| I AM NOT VERY COMFORTABLE WITH THIS CASE. IN MY EXPERIENCE, ACCOUNTANTS AND AUDITORS HERE ARE NOT PERFORMING THE SAME FUNCTIONS AS IN CANADA. ALSO, PI HAS A CORRESPONDENCE DEGREE AND LESS THAN TWO YEARS EXPERIENCE SINCE GRADUATION. I DO NOT LIKE TO QUESTION THE DECISION OF ANOTHER OFFICER, BUT I THINK WE HAD BETTER HAVE ACADEMIC CREDENTIALS RUN PAST AN ACCOUNTING OR ZZPZ: WRITE TO PI, WITH COPY OF ENTRY REQUIREMENTS FOR AUDITORS. ADVISE THAT WE REQUIRE HER TO OBTAIN EVIDENCE THAT HER ACADEMIC CREDENTIALS WILL BE ACCEPTABLE TO THE RESPONSIBLE ASSOCIATION. |
[3] The applicant was then asked to provide further information to verify whether her academic credentials would be accepted in Canada. She did not do so. She was asked to attend a second interview. Before that interview was conducted, the applicant filed the present application for judicial review seeking an order of mandamus requiring the visa office in Kiev to complete the processing of the applicant's application without a reopening of the decision that had been made. Declaratory orders that the visa office in Kiev has unlawfully refused to issue the applicant an immigrant visa and has unreasonably delayed the processing of the applicant's application are also sought.
[4] It is argued that the selection criteria decision cannot be reopened for reconsideration by another visa officer to whom the file has been passed for final processing because the visa officer who made the selection decision is functus officio. Alternately, it is argued that reopening such a decision constitutes a breach of the duty of fairness or natural justice.
[5] I recognize that the principle of functus officio has been held to be applicable in the administrative context, see Chandler v. Alberta Association of Architects, [1989] 2 S.C.R. 848. Counsel for the applicant also cites (Re) Lo (F.C.T.D. T-1331-96), where a citizenship judge was held to be functus officio when he indicated that an application for citizenship had been approved but subsequently changed his mind. Counsel also cites Yan v. M.C.I., [1999] F.C.J. No. 855, where it was held that a visa officer who had made a positive selection decision at the applicant's interview and communicated that decision verbally to the applicant, could not revisit that decision subsequently and refuse the application.
[6] I am not persuaded that these decisions assist the applicant. The principle of functus officio applies to final decisions. In the present case, the final decision is the issuance of a visa to the potential immigrant, and it is the visa officer who issues the visa who must satisfy himself or herself that the selection criteria have been met. Subsections 9(2), (3) and (4) of the Immigration Act, R.S.C. 1985, c. I-2, provide:
9. (2) An application for an immigrant's visa shall be assessed by a visa officer for the purpose of determining whether the person making the application and every dependent of that person appear to be persons who may be granted landing.
9. (2) Le cas du demandeur de visa d'immigrant est apprécié par l'agent des visas qui détermine si le demandeur et chacune des personnes à sa charge semblent répondre aux critères de l'établissement.
9. (3) Every person shall answer truthfully all questions put to that person by a visa officer and shall produce such documentation
9. (3) Toute personne doit répondre franchement aux questions de l'agent des visas et produire toutes les pièces qu'exige
as may be required by the visa officer for the purpose of establishing that his admission would not be contrary to this Act or the regulations.
celui-ci pour établir que son admission ne contreviendrait pas à la présente loi ni à ses règlements.
9. (4) Subject to subsection (5), where a visa officer is satisfied that it would not be contrary to this Act or the regulations to grant landing or entry, as the case may be, to a person who has made an application pursuant to subsection (1) and to the person's dependents, the visa officer may issue a visa to that person and to each of that person's accompanying dependents for the purpose of identifying the holder thereof as an immigrant or a visitor, as the case may be, who, in the opinion of the visa officer, meets the requirements of the Act and the regulations. [Underlining added.]
9. (4) Sous réserve du paragraphe (5), l'agent des visas qui est convaincu que l'établissement ou le séjour au Canada du demandeur et des personnes à sa charge ne contreviendrait pas à la présente loi ni à ses règlements peut délivrer à ce dernier et aux personnes à charge qui l'accompagnent un visa précisant leur qualité d'immigrant ou de visiteur et attestant qu'à son avis, ils satisfont aux exigences de la présente loi et de des règlements. [C'est moi qui souligne.]
[7] Paragraph 9(1)(a) of the Immigration Regulations also speaks to this issue. That paragraph provides:
9. (1) Subject to subsection (1.01) and section 11, where an immigrant other than a member of the family class, an assisted relative or a Convention refugee seeking resettlement makes an application for a visa, a visa officer may issue an immigrant visa to him and his accompanying dependents if
9. (1) Sous réserve du paragraphe (1.01) et de l'article 11, lorsqu'un immigrant, autre qu'une personne appartenant à la catégorie de la famille, qu'un parent aidé ou qu'un réfugié au sens de la Convention cherchant à se réétablir, présente une demande de visa d'immigrant, l'agent des visas peut lui en délivrer un ainsi qu'à_toute personne à charge qui l'accompagne si :
| (a) he and his dependents, whether accompanying dependents or not, are not members of any inadmissible class and otherwise meet the requirements of the Act and these Regulations; |
. . .
| a) l'immigrant et les personnes à sa charge, qu'elles l'accompagnent ou non, ne font pas partie d'une catégorie de personnes non admissibles et satisfont aux exigences de la Loi et du présent règlement; et |
. . .
[8] In the circumstances of this case, the second immigration officer, the officer who would issue the visa, makes the final decision, and she became statutorily obligated to assess the applicant's application for permanent residence before doing so.
[9] The Yan decision deals with a situation in which a breach of the rules of fairness occurred. However, it does not assist the applicant because it did not deal with a second visa officer revisiting a decision that had been made by another officer. The visa officer in question, in Yan, told the applicant at the interview that his application has been accepted, and then wrote rejecting the application, without intervening communication with the applicant. In the present case, Ms. Massey conveyed her concerns to the applicant and gave the applicant an opportunity to respond. Thus, there was no breach of the rules of fairness.
[10] I am not persuaded that the doctrine of functus officio applies to the first decision, nor that the procedure that was followed was in breach of the rules of fairness or natural justice.
[11] For the reasons given this application will be dismissed.
Judge
OTTAWA, ONTARIO
September 14, 2000