Kurukkal v. Canada (Citizenship and Immigration), 2010 FCA 230, [2010] 4 F.C.R. D-8


Kurukkal v. Canada (Citizenship and Immigration),

2010 FCA 230, [2010] 4 F.C.R. D-8


Citizenship and Immigration

Status in Canada

Permanent Resident

Humanitarian and Compassionate Considerations

Appeal from Federal Court decision (2009 FC 695) allowing judicial review of immigration officer’s decision refusing respondent’s application for relief on humanitarian and compassionate (H&C) grounds from requirement to apply for permanent residence from outside Canada—Immigration officer refusing respondent’s request to reconsider decision on basis that functus officio meaning decision maker having no authority on matter once decision taken—Federal Court certifying question whether decision maker’s ability to reopen, reconsider application for H&C exemption on basis of further evidence limited by doctrine of functus officio—Federal Court answering negatively—Court in agreement, functus officio not strictly applying in non-adjudicative administrative proceedings—In appropriate circumstances, discretion exists to reconsider decision—Immigration officer failing to recognize existence of any discretion in case at bar—Not barred by functus officio, free to exercise discretion to reconsider, refuse to reconsider—However, improper for Federal Court to direct immigration officer to consider new evidence, decide whether any weight should be attributed to it—Immigration officer’s obligation at this point to consider whether to exercise discretion to reconsider—Appeal allowed in part.  

Kurukkal v. Canada (Citizenship and Immigration) (A-308-09, 2010 FCA 230, Layden-Stevenson J.A., judgment dated September 15, 2010, 4 pp.)