Jimenez v. Canada ( Minister of Citizenship and Immigration )
IMM-356-97
Muldoon J.
19/3/98
12 pp.
Judicial review of visa officer's decision applicant not eligible for landing under Immigration Regulations concerning deferred removal orders class-Applicant citizen of Ecuador-Entering Canada in 1989-In 1992 CRDD holding applicant not Convention refugee because fear of persecution not well-founded, but even if fear of persecution well-founded, Convention not applicable because applicant committed serious non-political crimes in Ecuador-Regulations allow failed refugee claimant to apply for landing three years after claim rejected if no removal action to that point-Exclusion clauses rendering individual ineligible for landing if refugee claimant rejected on basis of ss. E, F of Art. 1 of Convention-In 1996 applicant receiving letter from Citizenship and Immigration indicating appeared to meet eligibility requirements of deferred removal orders class-In 1997 receiving letter purporting to reverse earlier letter; indicating not meeting criteria for program because committed war crimes or crimes against humanity-Application allowed-(1) CRDD premised its decision on two bases: applicant not having well-founded fear of persecution and applicant ineligible to be Convention refugee as person described in s. E or F of Art. 1 of Convention-(2) Principle of functus officio favouring finality of proceedings, although flexible in application in case of administrative tribunals: Chandler v. Alberta Association of Architects, [1989] 2 S.C.R. 848-Whether or not parties agree with decision rendered, case cannot be reopened unless error in expressing manifest intention of decision-maker or if clerical error requiring correction-Cases may be reopened if necessary to adhere to principles of natural justice: Zelzle v. Canada (Minister of Citizenship and Immigration), [1996] 3 F.C. 20 (T.D.)-Principle specifically not allowing tribunal to revisit decision-No evidence second decision issued to correct clerical error or to express manifest intention of decision-maker-Decision-maker's intentions clear in rendering first decision: applicant met eligibility criteria for landing under Regulations-If erred, error "within jurisdiction" and given amnesty, other circumstances, not certain illegal-Proper method of challenging validity of initial decision by means of judicial review application-As not done, decision-maker cannot revisit initial decision to question validity-As application for landing decided once, not to be referred to anyone for another adjudication, which would be illegal in light of functus officio principle-Respondent legally obliged to fulfil applicant's DROC application allowed in 1996-While embarrassing to admit error in administration of public law, unless lawful means to erase error, maladministration simply to purport to reverse alleged error high-handedly, unilaterally-Regardless, given CRDD's flaws of reasoning, waffling, first decision not clearly in error-DROC application to be processed for landing on humanitarian, compassionate basis by different immigration officer-As DROC provisions now repealed, if no transition provision from which applicant can benefit, humanitarian and compassionate review ought to result in landing to same extent as would DROC, or Minister ought to intervene on applicant's behalf-Immigration Regulations, 1978, SOR/78-172, s. 2(1) "member of the deferred removal orders class" (as enacted by SOR/94-681, s. 1), (7.1) (as enacted idem).