Judgments

[1995] 1 F.C. 104

IMM-2528-93

Fahimuddin Chaudhry, Farhana Afzal Chaudhry, Arfan Fahim Chaudhry, Nida Fahim Chaudhry (Applicants)

v.

The Minister of Employment and Immigration (Respondent)

Indexed as: Chaudhry v. Canada (Minister of Employment and Immigration) (T.D.)

Trial Division, Nadon J.—Toronto, March 30; Ottawa, July 15, 1994.

Citizenship and Immigration — Immigration practice — Application to quash CRDD decision dismissing motion for rehearing — Subsequent to dismissal of Convention refugee claims, applicants seeking to reopen hearing based on evidence of changed country conditions — CRDD correctly holding outside jurisdiction to do so — Effect of CRDD Rules, R. 30 on doctrine of functus officio — Roots of doctrine, legislative history of Act considered — R. 30 merely setting out procedure for reopening hearings when CRDD not functus — Not creating new substantive right — Flexibility in application of doctrine only where statutory indications decision could be reopened — No such statutory provisions — Immigration Act, s. 46.01(1)(c)(i) indicating contrary intent.

Constitutional law — Charter of Rights — Life, liberty and security — Application to quash CRDD decision dismissing motion for rehearing — Subsequent to CRDD’s dismissal of Convention refugee claims, applicants seeking to reopen hearing based on evidence of changed country conditions — Fundamental justice requiring no decision determining rights be made without giving subject meaningful opportunity to be heard — “Meaningful” depending on circumstances — Claimant must have opportunity to have new evidence of potential persecution in home country considered by authoritative body — Humanitarian and compassionate review under s. 114(2), Minister’s practice in connection therewith ensuring meaningful opportunity to have new evidence of changed country conditions heard by authoritative body — As applicants not submitting evidence of changed country conditions for H & C consideration, no Charter, s. 7 violation — Given full oral hearing, public interest in workable refugee determination framework, right to make written submissions sufficient to provide “meaningful opportunity” to have evidence of changed conditions considered — That few H & C claims successful not meaning fundamental justice requirements unmet.

This was an application to quash a Convention Refugee Determination Division (CRDD) decision dismissing the applicants’ motion for a rehearing of their Convention refugee claims. The applicants are citizens of Pakistan who belong to the Ahmadi faith. They claimed a well-founded fear of persecution based on their religion and membership in a particular social group. Subsequent to the CRDD’s negative determination of their claims, the applicants applied to reopen their claims based on evidence of a change in country conditions since the hearing and the decision, specifically an increase in incidents of persecution against Ahmadis in Pakistan. The CRDD held that it could not reopen a matter solely to hear evidence of changed country conditions.

The applicants argued that the scope of the doctrine of functus officio as enunciated by the Federal Court of Appeal in Nabiye, Singh and Longia was narrowed by Rule 30 of the Convention Refugee Determination Division Rules, which came into force in 1989, and in the aftermath of the S.C.C. decision in Chandler v. Alberta Association of Architects.

Rule 30 refers to applications for reinstatement of withdrawn claims and applications for rehearing. Given that the issue of rehearing on successful appeals is already dealt with under Rule 31, and that Rule 9 vests the Minister with the reciprocal power to request a reopening where a change of circumstances occurs in the refugee’s country of nationality, the applicants submitted that the only meaningful interpretation of Rule 30 was that it contemplated circumstances in which the CRDD had rendered a decision before new evidence arose such as to warrant reopening of the refugee claim. Nabiye, Singh and Longia were decided when the Immigration Appeal Board did not have jurisdiction conferred by the legislation and Rules to reopen.

In Chandler, Sopinka J. stated held that the doctrine of functus officio should not be as rigidly applied in the context of administrative tribunals where there is evidence of legislative intent against a strict approach. The applicants argued that the Board too narrowly interpreted that decision as merely holding that the doctrine may not apply to the unfinished task of an administrative tribunal.

The issues were whether the CRDD erred (1) in holding that it could not reopen the matter; and (2) by failing to read into the Immigration Act and the Rules such powers as are necessary and within its jurisdiction so as to comply with the principles of fundamental justice as required by Charter, section 7.

Held, the application should be dismissed.

(1) The CRDD did not have jurisdiction to reopen the hearing solely to hear new evidence of changed country conditions.

Under the 1966 Immigration Appeal Board Act, the Board had a continuous “equitable jurisdiction” to reopen a hearing whenever new evidence that would justify granting the humanitarian remedy contained in section 15 came to light. The CRDD is no longer vested with this ongoing jurisdiction, although subsection 114(2) of the present Act allows the Governor in Council, by regulation, to authorize the Minister to exempt any person from any regulation made under subsection 114(1) where humanitarian and compassionate considerations exist.

The Convention refugee determination process is of a one-shot nature. The well-founded fear of persecution has to be ascertained at the moment the claim is adjudicated. There is no legislative provision for successive claims. The Court was bound by Nabiye, Singh and Longia to apply the doctrine of functus officio unless those decisions had been overridden by subsequent legislation or case law.

While flexibility must govern application of the functus doctrine in the administrative context, such flexibility applies where there are indications in the governing statute that a decision can be reopened. The CRDD Rules, by virtue of their status as subordinate legislation, can only alter the substantive law of functus officio only to the extent that the Act permits them to. Not only is there no specific statutory grounding for the creation of a rule that would alter the substantive law of functus officio as far as refugee applicants are concerned, there are strong indications to the contrary. Subparagraph 46.01(1)(c)(i) makes it clear that once a claimant has been determined not to be a Convention refugee or to have abandoned the claim, that person, until he leaves Canada, is no longer eligible to have his claim determined by the CRDD. To allow multiple determinations of refugee status would defeat the purpose of subparagraph 46.01(1)(c)(i). Had the legislative intent been to alter the substantive law of functus officio to permit refugee claimants to apply for rehearings beyond the end of proceedings, based on evidence of changed country conditions, such a procedure could have easily been inserted. It made sense under the 1966 Act to allow rehearings at any time, given the Board’s continuing, equitable function as opposed to the adjudicative function of the CRDD. Rule 30 merely sets out the procedure to be followed for claimants seeking to have hearings reopened when the CRDD is not functus. It creates no new substantive right.

(2) The Board did not err by failing to read into the Act and the Rules such powers as are necessary and within its jurisdiction so as to comply with the principles of fundamental justice.

Application of the doctrine of functus officio to deny the applicants the opportunity to submit evidence of changed country conditions once proceedings had ended did not violate the applicants’ section 7 rights. Fundamental justice requires that no decision be made which determines the rights of a person without giving that person a “meaningful opportunity” to be heard. What is “meaningful” will depend on the particular circumstances of each case. In order to adhere to Charter, section 7, a claimant must be given an opportunity to have new evidence of potential persecution in the home country considered by an authoritative body. The existence of a mechanism for evidence to be meaningfully considered is crucial. Subsection 114(2) and the Minister’s practice in connection therewith ensures that claimants have a “meaningful opportunity” to have new evidence of changed country conditions heard by an “authoritative body.” Changed country conditions giving rise to a well-founded fear of persecution constitute a valid ground for granting humanitarian and compassionate relief. Since the applicants have not attempted to submit evidence of the changed country conditions in Pakistan for humanitarian and compassionate consideration, the applicants’ Charter, section 7 rights have not been violated. Refugee claimants are informed of their right to make written submissions to post-claim determination officers, when negative CRDD decisions are communicated to them. Given the public interest in a workable refugee determination framework and the fact that claimants in the circumstances of the applicants have already benefitted from a full oral hearing before the CRDD, the right to make written submissions is sufficient to provide a “meaningful opportunity” to have evidence of changed country conditions considered under subsection 114(2). Even if statistics show that but 3% of H & C applications are successful, that did not mean that the requirements of fundamental justice were not met.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44].

Convention Refugee Determination Division Rules, SOR/89-103, RR. 9, 30, 31.

Convention Refugee Determination Division Rules, SOR/93-45.

Immigration Act, R.S.C., 1985, c. I-2, ss. 46.01(l)(c)(i) (as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 14; S.C. 1992, c. 49, s. 36), 65 (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 18; S.C. 1992, c. 49, s. 55), 69.1(9) (as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 18), 69.2(1) (as enacted idem), 114(1) (as am. idem, s. 29; c. 29, s. 14; S.C. 1990, c. 38, s. 1; 1992, c. 49, s. 102), (2) (as am. by S.C. 1992, c. 49, s. 102).

Immigration Act, 1976, S.C. 1976-77, c. 52, ss. 35(1), 70, 72 (as am. by S.C. 1984, c. 21, s. 81; 1987, c. 37, s. 9).

Immigration Appeal Board Act, S.C. 1966-67, c. 90, s. 15.

CASES JUDICIALLY CONSIDERED

APPLIED:

Singh v. Canada (Minister of Employment & Immigration) (1988), 6 Imm. L.R. (2d) 10 (F.C.A.); Canada (Minister of Employment and Immigration) v. Nabiye, [1989] 3 F.C. 424; (1989), 102 N.R. 390 (C.A.); Longia v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 288; (1990), 44 Admin. L.R. 264; 10 Imm. L.R. (2d) 312; 114 N.R. 280 (C.A.); Salinas v. Canada (Minister of Employment and Immigration), [1992] 3 F.C. 247; (1992), 93 D.L.R. (4th) 631; 6 Admin. L.R. (2d) 154; 17 Imm. L.R. (2d) 118; 142 N.R. 211 (C.A.); Grewal v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 581; (1991), 85 D.L.R. (4th) 166 (C.A.); R. v. Wholesale Travel Group Inc., [1991] 3 S.C.R. 154; (1991), 84 D.L.R. (4th) 161; 67 C.C.C. (3d) 193; 38 C.P.R. (3d) 451; 8 C.R. (4th) 145; 7 C.R.R. (2d) 36; 130 N.R. 1; 49 O.A.C. 161; R. v. Lyons, [1987] 2 S.C.R. 309; (1987), 44 D.L.R. (4th) 193; 37 C.C.C. (3d) 1; 61 C.R. (3d) 1; 80 N.R. 161.

DISTINGUISHED:

Chandler v. Alberta Association of Architects, [1989] 2 S.C.R. 848; [1989] 6 W.W.R. 521; 70 Alta. L.R. (2d) 193; 40 Admin. L.R. 128; 36 C.L.R. 1; Grillas v. Minister of Manpower and Immigration, [1972] S.C.R. 577; (1971), 23 D.L.R. (3d) 1; Penelakut Indian Band v. Charlie, [1994] F.C.J. No. 95 (QL); Reekie v. Messervey, [1990] 1 S.C.R. 219; (1990), 66 D.L.R. (4th) 765; [1990] 3 W.W.R. 673; 43 B.C.L.R. (2d) 145; 104 N.R. 387; Kaur v. Canada (Minister of Employment and Immigration), [1990] 2 F.C. 209; (1989), 64 D.L.R. (4th) 317; 10 Imm. L.R. (2d) 1; 104 N.R. 50 (C.A.); Mattia v. Canada (Minister of Employment and Immigration), [1987] 3 F.C. 492; (1987), 10 F.T.R. 170 (T.D.).

CONSIDERED:

Chandler v. Alberta Association of Architects (1985), 67 A.R. 255 (C.A.); Agbona v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 749 (QL); Singh et al. v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; (1985), 17 D.L.R. (4th) 422; 12 Admin. L.R. 137; 14 C.R.R. 13; 58 N.R. 1.

REFERRED TO:

Chiarelli v. Canada (Minister of Employment and Immigration), [1990] 2 F.C. 299; (1990), 67 D.L.R. (4th) 697; 42 Admin. L.R. 189; 10 Imm. L.R. (2d) 137; 107 N.R. 107 (C.A.).

AUTHORS CITED

Dussault, René and Louis Borgeat. Administrative Law: A Treatise, vol. 4, 2nd ed., Toronto: Carswell, 1990.

APPLICATION to quash a Convention Refugee Determination Division decision dismissing the applicants’ motion for a rehearing of their claims based on evidence of changed country conditions not available at the time of the hearing and decision. Application dismissed.

COUNSEL:

Lorne Waldman and Vicky Russell for applicants.

Claire A. Le Riche and Mark M. Persaud for respondent.

SOLICITORS:

Lorne Waldman, Toronto, for applicants.

Deputy Attorney General of Canada for respondent.

The following are the reasons for order rendered in English by

Nadon J: This is an application for an order quashing a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the CRDD), dated April 28, 1993, whereby the applicants’ motion for a rehearing of their Convention refugee claims was dismissed. The applicants also seek an order remitting the matter back for a redetermination by a differently constituted panel.

The applicants are citizens of Pakistan who belong to the Ahmadi faith. The applicants sought to be recognized as Convention refugees in Canada by reason of a well-founded fear of persecution based on their religion and membership in a particular social group. Their hearing before the CRDD was held on November 1, 1991 and, in a decision dated January 29, 1992 the CRDD determined the applicants not to be Convention refugees. Subsequent to the date on which the CRDD rendered its decision, on October 30, 1992, the applicants filed an application with the CRDD to reopen their claims. In support of this application, evidence, which was not available to the CRDD at the time it rendered its decision, was submitted. The evidence was intended to document a change in country conditions since the hearing and the decision; specifically, the evidence pointed to an increase in incidents of persecution against Ahmadis in Pakistan.

In his 18-page reasons for decision, John Williams, Q.C., the presiding member of the CRDD found that the CRDD was empowered to address the issue of whether or not it had the jurisdiction to reopen a claim, but went on to hold that the CRDD could not reopen a matter where the sole purpose of the reopening would be the hearing of evidence of new facts.

Although the applicants list six matters in issue, this application, in essence, raises two issues:

1. Whether, notwithstanding the Canadian Charter of Rights and Freedoms[1] (the Charter), the CRDD erred in law in holding that it could not reopen a matter; and

2. Whether the Board erred in law by failing to read into the Immigration Act [R.S.C., 1985, c. I-2] and the Rules such powers as are necessary and within the jurisdiction of the CRDD so as to comply with the principles of fundamental justice.

Each of these issues will be dealt with in turn.

1. Did the CRDD err in law in finding that, notwithstanding the Charter, it could not reopen the hearing solely for the purpose of hearing the applicants’ evidence of the changed country conditions in Pakistan?

The applicants’ position is that the principle of functus officio, as enunciated by the Federal Court of Appeal in the cases of Singh v. Canada (Minister of Employment & Immigration) (1988), 6 Imm. L.R. (2d) 10 (F.C.A.); Canada (Minister of Employment and Immigration) v. Nabiye, [1989] 3 F.C. 424 (C.A.) and Longia v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 288 (C.A.), is no longer applicable to circumstances such as the one in the present case where a deterioration in home country conditions after a negative CRDD decision raises a fear of persecution. According to the applicants, the scope of the doctrine was narrowed with the inclusion of Rule 30 of the Convention Refugee Determination Division Rules, SOR/89-103,[2] which came into force in 1989, and in the aftermath of the decision rendered by the Supreme Court of Canada in Chandler v. Alberta Association of Architects, [1989] 2 S.C.R. 848.

In order to understand the effect of Rule 30 on the doctrine of functus officio, one must be familiar with the roots of the doctrine, the legislative history of the Immigration Act, and, in particular, the provisions of the Act which vest the various bodies of the immigration framework with jurisdiction to hear and rehear matters.

In 1966, the Immigration Appeal Board Act, S.C. 1966-67, c. 90 (the 1966 Act) was enacted. Section 15 of the 1966 Act provided in part:

15. (1) Where the Board dismisses an appeal against an order of deportation or makes an order of deportation pursuant to paragraph (c) of section 14, it shall direct that the order be executed as soon as practicable, except that

(a) in the case of a person who was a permanent resident at the time of the making of the order of deportation, having regard to all the circumstances of the case, or

(b) in the case of a person who was not a permanent resident at the time of the making of the order of deportation, having regard to

(i) the existence of reasonable grounds for believing that if execution of the order is carried out the person concerned will be punished for activities of a political character or will suffer unusual hardship, or

(ii) the existence of compassionate or humanitarian considerations that in the opinion of the Board warrant the granting of special relief,

the Board may direct that the execution of the order of deportation be stayed, or may quash the order or quash the order and direct the grant of entry or landing to the person against whom the order was made.

(2) Where, pursuant to subsection (1), the Board directs that execution of an order of deportation be stayed, it shall allow the person concerned to come into or remain in Canada under such terms and conditions as it may prescribe and shall review the case from time to time as it considers necessary or advisable.

Section 15 was interpreted by the Supreme Court of Canada in the case of Grillas v. Minister of Manpower and Immigration, [1972] S.C.R. 577, at page 590 to confer upon the Immigration Appeal Board a continuous “equitable jurisdiction” to reopen hearings whenever new evidence that would justify granting the humanitarian remedy contained in section 15 came to light. The CRDD is no longer vested with this ongoing jurisdiction, although subsection 114(2) of the Immigration Act, R.S.C., 1985, c. I-2, as amended [S.C. 1992, c. 49, s. 102] [the Act] allows the Governor in Council, by regulation, to authorize the Minister to exempt any person from any regulation made under subsection 114(1) [as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 29; c. 29, s. 14; S.C. 1990, c. 38, s. 1; 1992, c. 49, s. 102] and to facilitate the admission of any person where, in the Minister’s opinion, that person should be exempted or where humanitarian and compassionate considerations exist.

The ongoing equitable jurisdiction outlined above must be contrasted with the adjudicative function bestowed on the earlier Immigration Appeal Board, and now the CRDD, to recognize Convention refugees by determining whether a well-founded fear of persecution based on Convention grounds exists. It is in the latter circumstance that the doctrine of functus officio applies. Addressing the issue of the power of the Immigration Appeal Board to reopen the hearing of an application for redetermination of a refugee claim after the Board had rendered its decision under sections 70 and 72 [as am. by S.C. 1984, c. 21, s. 81; 1987, c. 37, s. 9] of the Immigration Act, 1976, S.C. 1976-77, c. 52 [the 1976 Act], Mr. Justice Marceau stated the following in Nabiye, at pages 426-427:

The basic idea, I think, is that a tribunal exercising adjudicative powers may not re-try a matter after it has disposed of that matter in accordance with the Act, unless it is expressly authorized to do so by its enabling legislation. This is the well-known principle of functus officio. However, we should not forget the conditions for its application. The principle applies first to the exercise of an adjudicative power, which explains the Grillas exception …; and it then implies, at least in its formulation, that the tribunal rendered a decision in accordance with the Act, which undoubtedly is the reasoning behind Gill, as the Court thought that a decision rendered contrary to the rules of natural justice could be treated by the tribunal as if it were not a decision.

This approach was maintained by the Federal Court of Appeal in its decisions in Singh and Longia. The one-shot nature of the adjudicative Convention refugee determination process was emphasized in the following statement of Mr. Justice Marceau in Longia, at page 292:

The well founded fear of persecution alleged by the refugee has to be ascertained, for it to be given effect according to law, at the moment his claim is adjudicated. It is true, of course, that facts may change and political events may occur which may lead to the conclusion that a fear which was not well founded has become now reasonable. But it is not by reopening the hearing on the first claim that this can be verified, it is only by allowing a second claim and proceeding to consider it. Parliament has not provided for the possibility of successive claims; indeed, in the new Act, it has formally prohibited it (see paragraph 46.01(1)(c) ….

Therefore, at the outset, it would appear that I am bound by the decisions of the Federal Court of Appeal in Nabiye, Singh and Longia to apply the doctrine of functus officio unless I can be convinced that these decisions have been overridden by subsequent legislation or jurisprudence.

Does Rule 30 provide a mechanism to allow the reassessment of claims where a failed refugee claimant becomes at risk subsequent to a negative CRDD decision? According to the applicants, the power to create rules, contained under section 65 [as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 18; S.C. 1992, c. 49, s. 55] of the Act is broad in scope and contains no prohibition against creating a rule which allows the Board to consider an application to reopen. Given that the issue of rehearing on successful appeals is already dealt with under Rule 31 and given that Rule 9 vests the Minister with the reciprocal power to request a reopening where potential fraud exists or where a change of circumstances occurs in the refugee’s country of nationality, the applicants submit that the only meaningful interpretation for Rule 30 is that it would contemplate circumstances when the CRDD has already rendered a decision and when new evidence has arisen to warrant a reopening of the refugee claim. With due respect, I cannot agree with this proposition.

The first observation to be made is that Rule 30 refers only to applications for reinstatement of withdrawn claims and applications for rehearing but not to applications for reopening proceedings. While counsel for the applicants was quick to point out that Nabiye, Singh and Longia were decided in the era of the Immigration Appeal Board, which did not have jurisdiction conferred upon it by the legislation and rules to reopen, at least one case, that of Salinas v. Canada (Minister of Employment and Immigration), [lb1992] 3 F.C. 247 (C.A.), has been decided in the era of Rule 30. The Federal Court of Appeal, in Salinas, emphasized the distinction between “hearings” and “proceedings.” In the words of Mr. Justice Stone [at page 252]:

In general, the provisions of section 68 endow the Refugee Division with powers and duties in relation to any “proceedings” before it. It is apparent that a distinction has thus been drawn by Parliament between “proceedings” and a “hearing” before the Refugee Division which is to be conducted in the manner required by section 69.1 of the Act. A “hearing” is but a step, albeit an important step, in any “proceedings” which is a wider term encompassing the entire matter before the Refugee Division including the hearing of the claim itself.

Mr. Justice Stone went on to hold that, while the proceedings were still pending (and, thus, finality had not been reached), the doctrine of functus officio did not apply and the CRDD should be free to exercise its legislative mandate—which included the power to consider evidence of changed country conditions that arose subsequent to the applicant’s hearing but prior to the CRDD’s decision being rendered. In taking this approach, instead of allowing the new evidence to be considered regardless of whether a decision had been rendered as of yet by the CRDD, it is clear that Mr. Justice Stone felt constrained by the doctrine of functus officio.

Furthermore, in light of Mr. Justice Stone’s comments, there is a precise, meaningful role for Rule 30: to govern the application procedure for any rehearings prior to the end of proceedings.[3]

I now turn to the applicants’ arguments with respect to the Supreme Court of Canada’s decision in Chandler.

The second prong of the applicants’ argument is that the Board, in construing the Supreme Court of Canada’s decision in Chandler to have merely held that the doctrine of functus officio “may not be applicable to the unfinished task of an administrative tribunal” (reasons, at page 15) erred in giving too narrow an interpretation to the Supreme Court’s ratio.

Chandler involved a decision by the Practice Review Board of the Alberta Association of Architects (the Board), on its own initiative, to undertake a review of the practice of the Chandler Kennedy Architectural Group (the Group) and its members after the Group filed for voluntary insolvency. After hearings were held, the Board issued fines and suspensions for unprofessional conduct against the Group and some of its members. An application for an order in the nature of certiorari to quash the Board’s decision was heard and granted by the Alberta Court of Queen’s Bench and was ultimately upheld by the Alberta Court of Appeal [(1985), 67 A.R. 255]. According to Prowse J.A., the Board exceeded its jurisdiction to make findings and orders relating to disciplinary matters, as such powers were vested in the Complaint Review Committee (the Committee). The Board was empowered merely to report to the Council of the Alberta Association of Architects (the Council) and to make recommendations that it felt were appropriate.

Shortly after the Alberta Court of Appeal’s decision, the Board notified the Group and its members that it intended to continue the original hearing with a view to preparing a report for the Council that would perhaps recommend sending the matter on to the Committee. The Group and its members applied to the Court once again, this time to obtain an order to prohibit the Board from continuing the hearing on the grounds that the Board was functus officio. The matter was eventually appealed to the Supreme Court of Canada.

It is clear that Mr. Justice Sopinka, writing for the majority of the Supreme Court, was of the view that functus officio, a principle developed with a view to creating a workable division of jurisdiction between trial courts and courts of appeal, should not be as rigidly applied in the context of administrative tribunals, where there is evidence of legislative intent against a strict approach. According to Mr. Justice Sopinka, the doctrine, at page 862:

… is based, however, on the policy ground which favours finality of proceedings rather than the rule which was developed with respect to formal judgments of a court whose decision was subject to a full appeal. For this reason, I am of the opinion that its application must be more flexible and less formalistic in respect to the decisions of administrative tribunals which are subject to appeal only on a point of law. Justice may require the reopening of administrative proceedings in order to provide relief which would otherwise be available on appeal.

Accordingly, the principle should not be strictly applied where there are indications in the enabling statute that a decision can be reopened in order to enable the tribunal to discharge the function committed to it by enabling legislation. This was the situation in Grillas, supra. [Emphasis added.]

Strictly speaking, the captioned statement of Mr. Justice Sopinka was obiter dictum as he went on to hold that the Board conducted a valid hearing until it came to dispose of the matter, but that, in rendering a decision that it had no jurisdiction to make, it failed to make its disposition on a proper basis. Mr. Justice Sopinka ordered that the Board be permitted to reopen the hearing to make a proper disposition and, in order to allow the parties an opportunity to properly address the issue of what recommendations should be made, new evidence and submissions could be made. In that sense, the proceedings of the Board could be viewed as incomplete, as the final step of disposing of the matter had been rendered a nullity.

Similarly, in Penelakut Indian Band v. Charlie (Action No. T-183-93, January 24, 1994) (F.C.T.D.) [[1994] F.C.J. No. 95 (QL)], it was clear that Mr. Justice Rouleau considered the tribunal’s original decision to be a nullity, as the adjudicator had yet to make a determination on the merits, and because the adjudicator had misapprehended the applicant band’s interest in the proceedings and consequent failure to submit evidence. The case of Reekie v. Messervey, [1990] 1 S.C.R. 219 may be distinguished from the present case in the sense that the change in the law which the applicant sought to have recognized and enforced had occurred prior to the Supreme Court’s decision to deny leave to appeal.

In essence, the applicants, in the present case, are asking for their CRDD proceedings to be reopened despite the fact that not one of the steps in the proceedings could be considered a nullity. As such, they come asking this Court to go further than the Supreme Court actually went in Chandler.

I acknowledge that there does seem to be an inherent unfairness in providing a mechanism for the Minister to introduce evidence of changed country circumstances on an ongoing basis, pursuant to Rule 9, while depriving refugee claimants of a corresponding privilege. However, while I accept the general proposition in Chandler that flexibility must govern application of the functus doctrine in the administrative context, the operative words of Mr. Justice Sopinka’s statement are that such flexibility is to apply where there are indications in the governing statute that a decision can be reopened. Applied to the context of the present case, the CRDD Rules, by virtue of their status as subordinate legislation, can only alter the substantive law of functus officio to the extent that the Act permits them to. I can see no specific statutory grounding for the creation of a rule that would alter the substantive law of functus officio as far as refugee applicants are concerned. In fact, there are some strong indications in the Act to the contrary.

In the first place, subsection 69.1(9) [as enacted by R.S.C., 1985 (4th Supp.), c. 28 s. 18] of the Act defines the jurisdiction of the CRDD as that of determining whether a claimant is a Convention refugee, rendering a decision as soon as possible after completion of the hearing, and sending written notice of the decision to the claimant and to the Minister. Subparagraph 46.01(1)(c)(i) [as enacted idem, s. 14; S.C. 1992, c. 49, s. 36] of the Act makes it clear that once a claimant has been determined by the CRDD, the Federal Court or the Supreme Court not to be a Convention refugee or to have abandoned the claim, that person, until he or she leaves Canada, is no longer eligible to have their claim determined by the CRDD. Clearly, to allow what in effect would be multiple determinations of refugee status, would defeat the purpose of subparagraph 46.01(1)(c)(i).

Furthermore, if the legislative intent had in fact been to alter the substantive law of functus officio to permit refugee claimants to apply for rehearings beyond the end of proceedings, based on evidence of changed country conditions submitted by an applicant, such a procedure could have easily been inserted as it was for the Minister under subsection 69.2(1) [as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 18] of the Act[4] and as it was for refugee claimants seeking to reopen the inquiry of an adjudicator under subsection 35(1) of the 1976 Act.[5]

Finally, I note that in the example, cited by Mr. Justice Sopinka in Chandler, where a less rigid application of functus would be warranted, specifically that of section 15 of the 1966 Act, it made perfect sense to allow rehearings at any time, given that the function bestowed upon the Immigration Appeal Board was equitable and continuous in nature, as opposed to adjudicative, as is the case with the CRDD. (See Grillas, supra.)

Thus, Rule 30 does no more than set out the procedure to be followed for claimants seeking to have hearings reopened when the CRDD is not functus. It creates no new substantive right. As such, I cannot find that the Board erred in law in finding that, notwithstanding the Charter, it could not reopen the hearing solely for the purpose of hearing the applicants’ evidence of the changed country conditions in Pakistan.

2. Did the Board err in law by failing to read into the Act and the Rules such powers as are necessary and within the jurisdiction of the CRDD so as to comply with the principles of fundamental justice?

Section 7 of the Charter reads:

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

There is no doubt, in the aftermath of the Supreme Court of Canada’s decision in Singh et al. v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177, that Convention refugee claimants are within the scope of protection of section 7 of the Charter and that the deportation of such claimants infringes their right to security of the person. What is at issue in the case at bar is, in the first place, whether applying the doctrine of functus officio to deny the applicants the opportunity to submit evidence of changed country conditions in Pakistan once proceedings have ended violates their section 7 rights and, if so, what remedies are available to them, given that they did not challenge the constitutionality of the Act or the Rules at the motion to reopen their hearing and given my holding under question No. 1, that the CRDD did not have jurisdiction to reopen the applicants’ refugee proceedings to hear new evidence. In my opinion, the second issue need not be addressed, as the doctrine of functus officio, as applied to the applicants in the present case, does not violate their section 7 rights.

It is well accepted that fundamental justice requires that no decision be made which determines the rights of a person without giving that person a “meaningful opportunity” to be heard. What is “meaningful” will depend on the particular circumstances of each case. In Singh, the procedural safeguards offered at original Immigration Appeal Board redeterminations were at issue. While three out of the six of the Supreme Court judges hearing Singh held that the refusal by the Immigration Appeal Board to reconsider an application for refugee status without first holding an oral hearing on the matter violated section 7, Wilson J. specified that the violation of fundamental justice did not necessarily result from the absence of an oral hearing per se, but, rather from the “inadequacy of the opportunity the scheme provides for a refugee claimant to state his case and know the case he has to meet,” at page 214. The requirement of a “meaningful opportunity” to be heard was reiterated in Chiarelli v. Canada (Minister of Employment and Immigration), [1990] 2 F.C. 299 (C.A.), at page 318.

Therefore, in circumstances where a claimant is effectively denied his or her right, during a hearing, to make a free, informed and independent decision regarding a claim to refugee status and to obtain counsel, fundamental justice is denied. In Kaur v. Canada (Minister of Employment and Immigration), [1990] 2 F.C. 209 (C.A.), the claimant’s denial of fundamental justice stemmed from her inability to freely obtain counsel and to choose how she would present her case due to threats uttered by her ex-husband on the night before her hearing before an immigration adjudicator. In Mattia v. Canada (Minister of Employment and Immigration), [1987] 3 F.C. 492 (T.D.), the claimant’s inability stemmed from mental illness prior to and during the proceedings. In both of these cases, however, the denial of fundamental justice resulted from circumstances that tainted the original hearing, and not from circumstances that arose subsequent to the proceedings, as in the present case.

Grewal v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 581 (C.A.) involved a landed immigrant from India who was ordered to be deported for having committed a criminal offence while in Canada. The applicant in Grewal appealed the deportation order before the Immigration Appeal Board, on the ground of alleged “suffering” that he would experience upon his return to India caused by the publicity surrounding his crime and conviction. At the time of the appeal, there was some evidence (i.e. a book that had been published) of the alleged publicity and additional evidence of alleged human rights abuses in India. The appeal was dismissed and leave to the Federal Court of Appeal was denied as well. Subsequently, a report about Grewal’s lost appeal and upcoming deportation appeared in the Punjabi press. According to Grewal, authorities in his home village warned people not to “harbour” him upon his return and he was warned by several people that he would face violence or death upon his return. Despite these new developments, Grewal was denied humanitarian and compassionate relief. At that point Grewal applied to the Immigration Appeal Board to reopen the appeal of the deportation order based on the new information of the risk that he would face upon his return to the Punjab. This application was dismissed as well.

Finally, Grewal applied to the adjudicator who had originally heard the deportation matter to reopen the inquiry so as to permit him to make a refugee claim, which he had not originally done as he had nothing to fear upon his return to India. It was the decision of the adjudicator not to reopen that was the subject of Grewal’s application to the Federal Court of Appeal. Grewal argued, inter alia, that the adjudicator’s refusal to reopen constituted a violation of section 7 of the Charter.

In a unanimous decision, Linden J.A., writing for the Federal Court of Appeal, distinguished the facts of Grewal from those of Kaur and Mattia, at pages 588-589:

In Kaur v. M.E.I., supra, it was held that a constitutional exemption may be granted in appropriate circumstances, pursuant to which an inquiry may be reopened. This will be done if the situation is “manifestly unfair”, to use Mr. Justice Heald’s words, or “remarkable”, to use the language of Madam Justice Desjardins in Kaur, supra, at pages 324 and 334, following Grange J.A. in Re Seaboyer and The Queen (1987), 61 O.R. 290 (C.A.) (affirmed on other grounds by S.C.C. Aug 22, 1991, [1991] 2 S.C.R. 577.) This Court has held in the past, pursuant to the Charter, that inquiries may be reopened where it would be a denial of fundamental justice not to do so. Thus, it has been held that where a person failed to make a refugee claim at the time of the inquiry because of duress (Kaur v. M.E.I., supra) or because of mental disability (Mattia v. Canada (Minister of Employment and Immigration), [1987] 3 F.C. 492 (T.D.)), an inquiry may be reopened. If there is a denial of natural justice during the original inquiry, the Board could treat its earlier decision as a nullity and reopen it in order to avoid the denial of fundamental justice. (Longia v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 288 (C.A.)). Moreover, an extension of time to apply for a redetermination beyond the rigid limits prescribed by the Immigration Act may also be required by section 7 (Bains v. Canada (Minister of Employment and Immigration), [1989] 3 F.C. 487 (C.A.)).

In the circumstances of this case, therefore, have the section 7 rights of the applicant been violated? Unlike the applicants before the Court in Mattia and Kaur, the applicant does not point to the original hearing itself to demonstrate the unfairness of his situation. There were no circumstances at the time of the original hearing which denied him fundamental justice. What the applicant points to are circumstances which arose after the time of the original hearing which he argues he should be allowed to place before a reopened inquiry in order to have his section 7 rights respected.

Linden J.A. went on to hold that, in order to adhere to section 7, a claimant must be given an opportunity to have new evidence of potential persecution in the home country considered by an authoritative body. What was crucial, given that the evidence in question arose subsequent to the hearing and the decision of the adjudicator, was the existence of a mechanism for such evidence to be meaningfully considered and not that the claimant was accorded the most procedurally stringent means to have such evidence considered. In the words of Linden J.A., at pages 589-590:

In my view, the Canadian justice system has not unfairly closed its doors on this applicant. Rather, he has already had the opportunity to present his new facts, in one form or another, to several authoritative bodies, without success. These new facts may not have been examined in the particular way he would have liked them to be, but fundamental justice does not mandate a particular method of dealing with legal or factual issues. Although a particular method of dealing with legal or factual issues is not demanded, what is required by the terms of section 7, in cases such as the instant case, is that the refugee claimant be given an ample opportunity to have new evidence of potential persecution in his home country heard and fully considered by an authoritative body. Clearly, such a requirement has been met in this case through the applicant’s submission in the proceedings subsequent to his original hearing. When the applicant appealed the 1985 decision deporting him, he argued his new facts, for the first time, before a Board, stating that he was at risk if he were returned to India. The Board heard that argument, assessed that evidence and rejected it as “mere speculation.” Further, when the applicant appealed to the Minister on compassionate and humanitarian grounds, he relied, for a second time on the new facts about the danger he would face if he returned to India. The Minister, in rejecting his claim, presumably considered this new evidence and was not persuaded. Later, when he sought to reopen the 1989 decision of the Appeal Division, he argued, for the third time, his new facts that he was at risk and again he was unsuccessful. In launching his last application to reopen the 1985 inquiry, which is under attack here, the applicant sought to rely, for a fourth time, on the new facts of the danger he would now face if he were to be returned to India, and again he was not successful in convincing the Adjudicator to reopen the inquiry. He, nevertheless, comes to this Court and urges that his section 7 rights were violated by the Adjudicator. I am not persuaded. The applicant has had ample opportunity to convince various tribunals of the importance of his new facts, and each time he has failed. This is not a denial of fundamental justice. As Mr. Justice La Forest stated in another context in R. v. Beare, [1988] 2 S.C.R. 387 [at page 412]:

… s. 7 of the Charter guarantees fair procedures but it does not guarantee the most favourable procedures that can possibly be imagined. [Emphasis added.]

It is clear to me that what the applicants are challenging is not the complete absence of a mechanism to deal with post-proceeding evidence of changed country conditions, but rather the manner in which evidence is considered under the sole alternative vehicle available to claimants wishing to raise such evidence: the humanitarian and compassionate relief process. Paragraphs 91 to 97 of the applicants’ supplementary memorandum of argument describe how the criteria for granting humanitarian and compassionate relief under subsection 114(2) of the Act are discretionary and “virtually insurmountable.” The applicants go on to cite statistics showing a low (approximately 3%) acceptance rate on H & C applications of refused claimants between January 1, 1989 and March 21, 1993. Based on these points, the applicants submit that the “safety net” provided by subsection 114(2) is illusory and that the requirements of fundamental justice can only be met if they would be provided an opportunity to present their evidence of changed country conditions in Pakistan in a setting such as a CRDD hearing, where the procedural safeguards associated with a quasi-judicial hearing are present.

I cannot accept the applicants’ arguments for a number of reasons. In the first place, the mere fact that the humanitarian and compassionate relief mechanisms, statistically, generates few successful claims does not mean that the mechanism does not meet the requirements of fundamental justice. Secondly, and more importantly, a contextual application of the requirements of fundamental justice militates against insisting on a full oral hearing in the circumstances of the present case.

As Cory J. emphasized in R. v. Wholesale Travel Group Inc., [1991] 3 S.C.R. 154, at page 226:

It is now clear that the Charter is to be interpreted in light of the context in which the claim arises. Context is relevant both with respect to the delineation of the meaning and scope of Charter rights, as well as to the determination of the balance to be struck between individual rights and the interests of society.

The result is a “sliding scale” of procedural safeguards necessitated by section 7, depending on the context. In the words of Mr. Justice La Forest in R. v. Lyons, [1987] 2 S.C.R. 309, at page 361:

… the requirements of fundamental justice are not immutable; rather, they vary according to the context in which they are invoked. Thus, certain procedural protections might be constitutionally mandated in one context but not in another.

Although the goal of upholding Canada’s humanitarian tradition with respect to the displaced and the persecuted is an important factor in determining the procedural safeguards required pursuant to section 7 in the context of Convention refugee claims, it does not stand alone. In the context of refugee claims such as those in the present case, where the merits of a claim have already been finally determined once in a full oral hearing, adherence to section 7 of the Charter is not and cannot be dictated by a requirement that, every time the rights of a party are affected, a full, oral, quasi-judicial hearing must be held. What would stop a claimant from applying for a new CRDD hearing, each and every time a new piece of trivial evidence arose? As Dussault and Borgeat warn, if fundamental justice were to be applied mechanically so as to impose a court-like paradigm on such administrative structures:

… it would make it virtually impossible for the courts to take into account the immense difficulties that an imposition of overly strict procedural requirements would mean for various agencies working in fields of mass adjudication as is the case, for example, of the Immigration Appeal Board or of federal and provincial Parole boards. (Administrative Law, vol. 4, 2nd ed., Toronto: Carswell, 1990, at pp. 269-270.)

In my opinion, subsection 114(2) and the Minister’s practice in connection with that provision ensures that claimants have a “meaningful opportunity” to have new evidence of changed country conditions heard by an “authoritative body,” in the spirit of the Federal Court of Appeal’s decisions in Chiarelli and Grewal, and therefore does not violate section 7. It is clear from Employment and Immigration Canada’s Examination and Enforcement Guidelines for subsection 114(2) that existed both prior to 1993 (Document IE-9, February 1991) (the pre-1993 Guidelines) and subsequent to 1993 (Document OM IS 93-19, June 1993) (the post-1993 Guidelines) that humanitarian and compassionate review has been and continues to be available to refused refugee claimants who are in the position of the applicants. In fact, since 1993, the process of humanitarian and compassionate review is automatic.

It is clear from both sets of guidelines that changed country conditions giving rise to what is tantamount to a well-founded fear of persecution constitute a valid ground for granting humanitarian and compassionate relief. In the pre-1993 Guidelines, this situation was addressed by paragraphs 9.07(4)(b), (c) and (d), which read:

b) Others may warrant consideration because of their personal circumstances in relation to current laws and practices in their country of origin. Such persons could reasonably expect unduly harsh or inhumane treatment in their country should they be removed. In these cases there should be strong reasons to believe that the person will face a life threatening situation in his or her homeland as a direct result of the political or social situation in that country. Such situations are far more likely to occur in countries with repressive governments or those experiencing civil strife or at war.

c) Persons described above will, in most cases, have indicated an intention to claim refugee status and a review of their situation will occur in the context of the refugee claim procedures (see IE 12 or the Backlog Clearance Procedures (IB) Manual). Officers may, however, also deal with requests from persons who are reluctant to claim refugee status, either because of fear for families living abroad or because they realize that they would not meet the strict Convention refugee definition. These persons may, nevertheless, feel that their situation warrants special consideration.

d) Officers will consider the facts of the case and recommend what they believe is reasonable in the particular situation. The onus is on the applicants to satisfy the officer that a) a particular situation exists in their country and that, b) their particular circumstances in relation to that situation make them worthy of positive discretion.

Under the post-1993 Guidelines, the nature of the determination by post-claim determination officers is twofold: an assessment is first made whether the claimant is within any of the traditional categories of exclusion and then whether the claimant:

… will be subject to recognizable risks if forced to leave Canada. The risk must be personal, objectively identifiable and compelling. The risk must consist of a threat to life, excessive sanctions or inhumane treatment, in all parts of country to which they would be removed. This is the case whether the claimant is removed directly to that country or indirectly through a (sic) intermediate country.

As such, an “authoritative body” does exist to review evidence of changed country conditions and to prevent deportation if such evidence indicates a change in circumstances that gives rise to a well-founded fear of persecution that did not exist at the time of the original proceedings.

With regard to the requirement of a “meaningful opportunity” to be heard, there is no evidence before this Court that any attempt was made by the applicants to submit evidence of the changed country conditions in Pakistan for humanitarian and compassionate consideration. As such, it is impossible to conclude, in the present case, that the section 7 rights of the applicants have been violated.

Even if the applicants had requested a full oral hearing for humanitarian and compassionate consideration and had been turned down, their right to a “meaningful opportunity” to be heard would not have been violated. Paragraph H(2)(f) of the same post- 1993 Guidelines provides:

f. Claimants not recognized as Convention refugees will have fifteen days following the determination of the CRDD within which to make submissions to an immigration officer, [R 11.4(3)]. The regulations provide this interval so the claimant (sic) can advance their arguments or representations on two issues: the extent of any risk they would face upon removal from Canada and whether that risk would exist in all parts of the country of removal.

According to those Guidelines, refugee claimants are informed of their rights, including the right to make written submissions to post-claim determination officers, when negative CRDD decisions are communicated to them. Given the public interest in a workable refugee determination framework, given that claimants in the circumstances of the applicants have already benefitted from a full oral hearing before the CRDD, the right to make written submissions is sufficient to provide a “meaningful opportunity” to have evidence of changed country conditions considered under subsection 114(2) of the Act.

It is worth noting, in conclusion, that the discretionary decisions of post-claim determination officers are subject to judicial review by this Court if such discretion is exercised pursuant to improper purposes, irrelevant considerations, with bad faith, or in a patently unreasonable manner.

Therefore, I must conclude that the Board did not err in law by failing to read into the Act and the Rules such powers as are necessary and within the jurisdiction of the CRDD so as to comply with the principles of fundamental justice in refusing to reopen the hearing of the applicants to consider their evidence of changed country conditions in Pakistan.

For these reasons, this application is dismissed.

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