SAJJAD SHAMSI KAZEM ABADI Applicant v. THE MINISTER OF, 2016 FC 196

Date: 20160212 Docket: IMM-2680-15 Citation: 2016 FC 196 Ottawa, Ontario, February 12, 2016 PRESENT: The Honourable Mr. Justice Fothergill BETWEEN:SAJJAD SHAMSI KAZEM ABADIApplicantandTHE MINISTER OF CITIZENSHIP AND IMMIGRATIONRespondent SUPPLEMENTAL JUDGMENT AND REASONS [1] On January 8, 2016, I dismissed an application for judicial review brought by Shamsi Kazemi Abadi pursuant to s 72(1) ofthe Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA] (Shamsi Kazemi Abadi v Canada (Minister of Citizenship andImmigration), 2016 FC 29).

I upheld the decision of the Refugee Protection Division [RPD] of the Immigration and Refuge Board thatMr. Shamsi’s refugee status had ceased pursuant to s 108(1)(

a) of the IRPA because he had re-availed himself of the protection of hiscountry of nationality. [2] Pursuant to s 74(

d) of the IRPA, no appeal from a judgment of this Court that disposes of the merits of an application may beinitiated unless the judge “certifies that a serious question of general importance is involved and states the question.” Pursuant to Rule18(2) of the Federal Courts Citizenship, Immigration and Refugee Protection Rules, SOR/93-22 [the Rules], a party who requestscertification of a question must specify the precise question. [3] At the hearing that took place in Vancouver, British Columbia on December 10, 2015, I asked the parties whether theywished to propose any questions of general importance for certification.

Counsel for Mr. Shamsi responded that they had not preparedprecise questions for certification, but indicated that there “may potentially” be serious questions arising from the case. The Minister ofCitizenship and Immigration [the Minister] argued that there was ample jurisprudence addressing the question of re-availment, and noquestions of broad significance or general importance arose from the case. [4] In my judgment dated January 8, 2016, I declined to certify a question for appeal pursuant to s 74(

d) of the IRPA. Iconcluded that the outcome of the case was a function of its particular facts. By letter dated January 13, 2016, Mr. Shamsi sought tomake additional submissions and proposed two questions for certification.

By letter dated January 28, 2016, the Minister opposed Mr.Shamsi’s request that two questions be certified for appeal. [5] Pursuant to Rule 18(1), parties must be provided with an opportunity to propose a question for certification “before a judgerenders judgment.” The general rule is that questions cannot be certified for appeal after a judgment is pronounced in writing (Brar vCanada (Minister of Citizenship and Immigration), (1997) (FC), 139 FTR 79 at para 4, 76 ACWS (3d) 399 (FC)).

Aserious question of general importance must arise from the issues in the case and not from the judge’s reasons (Zhang v Canada(Minister of Citizenship and Immigration), 2013 FCA 168 at para 9).

As the Federal Court of Appeal has observed, a judge who hasheard a case should be in a position to identify whether a serious question of general importance arises without circulating draft reasonsto counsel (Valera v Canada (Minister of Citizenship and Immigration), 2009 FCA 145 at para 29). [6] The doctrine of functus officio exists to ensure the finality of judgments, and provides that a court cannot reconsider or alterits decision once it has been rendered.

There are two exceptions to the general rule that a decision-maker cannot amend its decision: toaddress a slip and to correct an error in expressing its manifest intention (Chandler v Association of Architects (Alberta), (SCC), [1989] 2 SCR 848, 62 DLR (4th) 577 (SCC)). Neither exception applies here, therefore the Court is functus officio. [7] Mr. Shamsi relies on my judgment in Azimi v Canada (Minister of Citizenship and Immigration), 2015 FC 1291 [Azimi] asauthority for the proposition that post-judgment submissions may be considered by the Court.

My decision to permit additionalsubmissions regarding the certification of questions following the issuance of the Court’s judgment in Azimi resulted from the unusualcircumstances of that case. In Azimi, I heard only initial submissions regarding the certification of questions at the hearing, and indicatedthat I would accept further written submissions if necessary. There was a misunderstanding between the Court and the parties regardingwhat this would mean in practice.

Given the parties’ reasonable expectation that they would be given a further opportunity to proposequestions for certification, the Court was not yet functus officio. [8] This may be contrasted with the present case, where the certification of questions was canvassed with the parties at thehearing and no precise questions were proposed. No request was made at the hearing to propose questions for certification by a futuredate. Nor were any proposed questions received by the Court before judgment was issued. [9] For the foregoing reasons, the Court is functus officio and Mr.

Shamsi’s request that the Court certify questions for appealmust be denied. JUDGMENT

THIS COURT’S JUDGMENT is that the Court’s previous determination that no question should be certified for appeal is confirmed. “Simon Fothergill” Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-2680-15 STYLE OF CAUSE: SAJJAD SHAMSI KAZEN ABADI v THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: Vancouver, British Columbia DATE OF HEARING: December 10, 2015 SUBMISSIONS MADE IN WRITING CONSIDERED AT OTTAWA, ONTARIO. JUDGMENT AND REASONS: FOTHERGILL J.

DATED: FEBRUARY 12, 2016 APPEARANCES : Erica Olmstead Aris Daghighian For The Applicant Brett Nash For The Respondent SOLICITORS OF RECORD : EDELMANN & CO. Barristers and Solicitors Vancouver, British Columbia For The Applicant William F. Pentney Deputy Attorney General of Canada Vancouver, British Columbia For The Respondent