CITIZENSHIP AND IMMIGRATION
Immigration Practice
Judicial review of Pre-Removal Risk Assessment (PRRA) officer’s decision rejecting application for protection from removal to Nepal—Issue: when is such decision final, i.e. at what point may officer refuse to consider further materials, submissions—Applicant’s refugee status claim denied— Applied for PRRA—Applicant’s counsel made written submissions by letter dated June 2, 2004, submitted additional documents in August, September and, on October 8, 2004 yet further documents on conditions in Nepal—Canada Border Services Agency sent lawyer FAX stating latest information would not be considered as PRRA decision “finalized” September 23, 2004—Applicant summoned to Ottawa where advised of September 23, 2004 decision rejecting application —No evidence when decision, said to have been finalized September 23, 2004, actually written, signed—Whether September 23 decision should be quashed as submissions made after that date, applicant being notified only on October 15, 2004 that decision made but not told what decision was until November 10, 2004—Minister of Citizenship and Immigration’s position: decision final September 23, 2004, officer thereafter functus—As explained by von Finckenstein J. in Mojzisik v. Canada (Minister of Citizenship and Immigration), 2004 FC 48, PRRA designed to ensure vast majority of those facing removal would have full, but expedited, chance to establish torture risk if sent home—PRRA officer limited by s. 113(a) to considering evidence arising since Refugee Protection Division hearing— Officer must consider latest relevant, significant evidence available, since applicant’s life, security at stake, PRRA officer’s decision determinative in that regard—Whether administrative tribunal functus to be considered on more flexible, less formalistic basis than Court decision although there exists sound policy reason for recognizing finality of tribunal proceedings—But while functus officio principle applies, since tribunal decision reviewable only on point of law, justice may require reopening of administrative proceedings so that statutory function may be discharged: Chandler v. Alberta Association of Architects, [1989] 2 S.C.R. 848—No evidence as to reason for delay between date decision allegedly finalized, date communicated—As to when decision “final”, Minister of Citizenship and Immigration cited two Refugee Board cases holding decision “final” when signed, transmitted to Registrar—But PRRA procedure less formal than that of Refugee Board—Reasonable to conclude PRRA decision not made until written, signed and notice thereof (even if not contents) delivered to applicant—In instant case, decision “made” October 15, 2004, date its existence communicated to applicant—Officer should have received materials submitted October 8, 2004 which discussed “Nepal’s escalating civil war” as this may have impacted on conclusion evidence not confirming Nepal in state of civil war—Application allowed—Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 112, 113, 114.
Chudal v. Canada (Minister of Citizenship and Immigration) (IMM-9799-04, 2005 FC 1073, Hughes J., order dated 8/8/05, 9 pp.)