Phan v. Canada (Citizenship and Immigration), 2014 FC 1203 : Sponsorship Reconsideration Allowed Because Officer Wrongly Treated Herself as Functus Officio

The Federal Court reviewed an immigration officer’s refusal to reconsider a withdrawn Family Class sponsorship application.

The Court found that the officer had improperly fettered her discretion by concluding that a withdrawn sponsorship application could not be reconsidered. The officer had residual discretion to consider whether the application should be reopened.

Key Principle

The functus officio doctrine does not automatically prevent an immigration officer from reconsidering a decision in a non-adjudicative administrative process.

An officer may have residual discretion to reconsider a previous decision, including a decision following the withdrawal of a sponsorship application.

However, the existence of discretion does not mean the application must be reopened. The proper question for the officer is whether, considering all relevant circumstances, the discretion to reconsider should actually be exercised.

Background

The applicant submitted a sponsorship application for her parents and siblings. The application was received by CIC in September 2008.

In May 2012, the applicant was advised that she did not meet the applicable minimum necessary income requirement. The sponsorship application contained instructions indicating that she wished to withdraw the application if she was found ineligible.

The application was therefore treated as withdrawn.

The applicant subsequently asked CIC to reconsider the withdrawal. She explained that her representative had allegedly delayed submitting the application and that she had signed it earlier, when her income may have satisfied the applicable requirement.

The immigration officer refused to reconsider the matter, stating that “once a sponsorship is withdrawn, subsequent instructions to continue the processing of the file cannot be considered.”

The applicant sought judicial review.

Court Findings

The Federal Court found that the officer had fettered her discretion by concluding that reconsideration was legally impossible.

The evidence showed that the officer had treated the matter as one in which she had no authority to reconsider the withdrawn sponsorship. This was inconsistent with the Federal Court of Appeal’s decision in Kurukkal, which confirmed that immigration officers have a residual discretion to reconsider decisions in the context of non-adjudicative administrative proceedings.

The Court emphasized that there is an important distinction between:

1. having the discretion to reconsider, and
2. deciding whether to exercise that discretion.

The officer was entitled to refuse to reopen the sponsorship if, after considering the circumstances, she reasonably concluded that reopening was not justified. What she could not do was conclude that she had no discretion at all.

The Court also rejected the officer’s attempt, through a later affidavit, to characterize the original decision as a decision on the merits.

The October 2012 letter clearly stated that reconsideration was impossible. The GCMS notes similarly stated that the application could not be reconsidered. A decision-maker cannot supplement or change the reasons for a decision after judicial review proceedings have begun.

The Court therefore treated the later affidavit as an impermissible after-the-fact attempt to “bootstrap” the decision.

Outcome

The Federal Court allowed the application for judicial review and sent the matter to a different immigration officer to determine whether the withdrawn sponsorship application should be reopened.

The Court did not order that the sponsorship application be reopened. That decision remained within the officer’s discretion.

Case Citation:

Phan v. Canada (Citizenship and Immigration), 2014 FC 1203 CanLII