NABEEL KHIZAR Applicant v. THE MINISTER OF PUBLIC SAFETY, 2021 FC 641

Date: 20210622 Docket: IMM-3971-19 Citation: 2021 FC 641 Ottawa, Ontario, June 22, 2021 PRESENT: The Honourable Mr. Justice Gleeson BETWEEN:NABEEL KHIZARApplicantandTHE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESSRespondent JUDGMENT AND REASONS I. Overview [1] The Applicant, Mr. Nabeel Khizar, is a citizen of Pakistan working in the United Arab Emirates. He seeks judicial review, pursuantto

section 72 of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA], of a Border Service Officer’s decision rejecting hisapplication for a work permit dated June 24, 2019 [the refusal decision]. He alleges the officer erred in rejecting the application andseeks to have the impugned decision quashed and returned for redetermination. [2] Subsequent to the Applicant’s filing of the Application for Leave and for Judicial Review [ALJR], the Respondent acknowledgedthat the officer had erred and that the errors rendered the decision unreasonable.

The Respondent cancelled the refusal decision on March10, 2020 [the cancellation decision]. [3] The Applicant argues that the cancellation decision was both unlawful and unreasonable. However, the Applicant has not soughtjudicial review of the cancellation decision. The Respondent takes the position that this Application, seeking judicial review of therefusal decision, is moot and the Application should be dismissed on that basis. [4] I agree with the Respondent. The decision that is the subject of this Application for Judicial Review is moot.

While there is anongoing dispute between the parties, that dispute relates to the Respondent’s cancellation decision. That decision is not before the Courton this Application. The Application is dismissed for the reasons that follow. II.

Preliminary Matter: Extension of Time [5] On May 13, 2021, the Respondent filed a motion seeking an extension of time to serve and file a supplementary memorandumpursuant to Rule 21(2) of the Federal Courts Citizenship, Immigration and Refugee Protection Rules, SOR/93-22 [Immigration Rules].The Applicant opposes the motion, arguing the Respondent has failed to satisfy any of the four requirements for an extension of time. [6] The Respondent’s motion was addressed at the outset of the hearing of this matter.

After hearing brief oral submissions from theparties, I granted the extension of time. [7] The factors to be considered where an extension of time is sought were summarized by Justice Sean Harrington in Pham v Canada(Minister of Citizenship and Immigration), 2018 FC 1251, at paragraph 27: [27] There is a wealth of jurisprudence dealing with extensions of time under IRPA, or under the Federal Courts Act andRules. The underlying premise is that justice should be done.

The Federal Court of Appeal has held, time and time again,that an extension of time is discretionary and should take into account the following four criteria: a. Did the moving party have a continuing intention to pursue the judicial review application? b. Is there some potential merit to the application? c. Does the moving party have a reasonable explanation for the delay? d. Is there prejudice to the other party arising from the delay?

It is not necessary that all four criteria be satisfied (Canada (Attorney General) v Hennelly, (FCA), 1999FCJ 846; Canada (Attorney General) v Larkman, 2012 FCA 204 and just recently Thompson v Attorney General of Canadaet al, 2018 FCA 212). [8] In considering the four criteria to be assessed, the evidence demonstrates the Respondent’s continuing engagement in response to theApplication. I am also satisfied that there is merit to the arguments raised in response to the Applicant’s position in this matter.

[9] In considering the explanation for the delay, I agree with the Applicant’s submissions to the effect that the Respondent’s lack ofdetail in explaining the reasons for delay undermine the reasonableness of the explanation. I also accept that the extension of time isprejudicial to the Applicant, but only to the extent that the Applicant has been required to respond to the motion. [10] Although I am not satisfied with the explanation for delay, it is important to remember that a moving party need not satisfy all fourof the criteria to be successful on a motion for an extension of time.

The overriding consideration is ensuring justice be done in thecircumstances. [11] In this instance, the Respondent’s further submissions do not raise new issues but instead respond to the Applicant’s submissions. Inaddition, the limited prejudice to the Applicant arising out of the motion has crystallized. I am also mindful that the further submissionsmay be of value to the Court in assessing the issues raised in the Application.

I am therefore of the opinion that justice is best served inthis circumstance by granting the Respondent’s motion. [12] In granting the motion, I also deem service to have occurred on the basis that the Respondent’s supplementary memorandum wasattached to the Respondent’s motion, and the motion duly served on the Applicant. III. Background [13] The Applicant submitted an in person application for a work permit at the Stanstead, Quebec Port of Entry on June 5, 2019, underthe International Mobility Program on the basis that he was an intra-company transferee.

The intra-company category permits thetemporary transfer by international companies of qualified employees to Canada for the purpose of improving managementeffectiveness, expanding Canadian exports, and enhancing competitiveness in overseas markets (Operational Bulletin R205(a), April 5,2018, "“C-12 – International Mobility Program: Canadian interests – Significant benefit – Intra-company transferees”"). [14] The June 5, 2019 application was the second refusal in a series of three separate attempts by the Applicant to obtain a work permitunder the International Mobility Program between January and June 2019.

The first application was rejected for incompleteness. Inrefusing the second application on June 24, 2019, the officer cited a series of deficiencies in the application. The third application,initiated on June 27, 2019 after the filing of the ALJR in this matter, was again denied. In refusing the third application, the officer noteda number of discrepancies relating to the identified Canadian employer. [15] After the third refusal, the Applicant departed Canada.

The date of departure is not disclosed in the record before me. [16] Subsequent to the filing of the ALJR, it appears there was discussion between the parties aimed at resolving the issues in dispute.Those efforts were not successful. Nonetheless, the Respondent cancelled the June 24, 2019 decision on March 10, 2020.

The GlobalCase Management System [GCMS] notes record that decision with the following entry: Following discussions with Justice Canada and based on instructions from Litigation Management Unit in the context of themanagement of an application for leave and judicial review initiated by the Applicant (IMM-3971-19), the decision renderedby the Stanstead POE on 2019-06-05 and further elaborated on 2019-06-24 is cancelled.

The errors in the reasons fordecision include incorrectly assuming that the company was based in Pakistan instead of the United Arab Emirates, andrequesting tax reports or notices of tax assessments from Pakistan. As such, it was impossible for the Applicant to providethe requested documents. The error in the location of the company and the request for Pakistani documents rendered thedecision unreasonable. [17] As I note above, the Applicant has not sought judicial review of the March 10, 2020 cancellation decision. IV. Analysis A.

The Application for Judicial Review is moot: the cancellation decision was notunlawful [18] In this instance, the Applicant challenges the June 24, 2019 decision to refuse his work visa. That decision has since been cancelledand the Respondent submits the cancellation removes the controversy between the parties that is before the Court on this Application. [19] The Applicant disagrees, arguing that a dispute remains.

Specifically, the Applicant argues that having rendered the final refusaldecision, and in the absence of any express statutory authority to revisit that final decision, the Respondent was functus officio. Hesubmits the Respondent had no authority to cancel the refusal decision. He further submits that the cancellation decision itself wasunreasonable, as it did not re-determine his application for a work permit. [20] The doctrine of mootness holds that the Court may decline to determine a matter where doing so will neither resolve the controversybetween the parties nor practically impact the parties’ rights.

A controversy must exist not only at the time the proceeding is commencedbut also at the time the Court is asked to determine the matter. As such, where events occur after a proceeding is initiated, that resolve orremove the live controversy, the matter will be moot (Borowski v Canada (Attorney General), (SCC), [1989] 1 SCR342 at para 353). [21] In this instance, the controversy between the parties as identified in the ALJR has been resolved.

The Respondent has concluded thatthe refusal decision was unreasonable. [22] I accept, as the Applicant argues, that there are issues that remain in dispute as between the Applicant and the Respondent but thoseissues arise from, and relate to, the cancellation decision not the refusal decision.

[23] While it is not in doubt that the refusal decision and the cancellation decisions are linked, they are separate and distinct decisions.The Applicant has not argued, and the circumstances do not suggest, that the two decisions are to be considered as part of the samecourse of conduct allowing them to be treated as one (see e.g. Conseil des Innus de Ekuanitshit c Canada (Ministre des Pêches et desOcéans), 2015 FC 1298 and Rule 302 of the Federal Courts Rules, SOR/98-106).

Instead, the cancellation decision was taken separatelyand raises issues and considerations that differ from those raised in this Application. It is also important to recognize that the full recordin respect of the cancellation decision is not before the Court. [24] There is no existing controversy or live issue as between the parties that arises from the refusal decision. The Application is moot. [25] Having concluded there is no live issue between the parties in respect of the refusal decision, I must ask whether the merits of thismatter should nonetheless, be addressed (Borowski at 353).

In doing so, I am to consider: (1) whether an adversarial relationship prevailsas between the parties; (2) whether the circumstances of the case warrant the application of scarce judicial resources; and (3) the properlaw-making function of the Court (Borowski at 358-362). [26] While there remains an ongoing adversarial relationship, that relationship arises from a separate decision. The Applicant has notchallenged that decision.

Even if it were appropriate to engage in a review of the cancellation decision the Court is not in a position to doso in the absence of a full record. [27] The Applicant relies on the functus officio doctrine to argue, in accordance with that doctrine, that the cancellation was takenwithout authority and is therefore a nullity. [28] The functus officio doctrine does hold, as a general rule, that a tribunal having reached a final decision in respect of a matter cannotrevisit that decision because an error is later discovered, unless the error is minor (Chandler v Alberta Association of Architects, (SCC), [1989] 2 SCR 848 at 861 [Chandler]).

However, the functus officio doctrine has been found not to strictly apply innon-adjudicative administrative proceedings where there is no right of appeal and the process is informal (see Canada (Minister ofCitizenship and Immigration) v Kurukkal, 2010 FCA 230 where the Federal Court of Appeal held the doctrine not to apply in the contextof a humanitarian and compassionate decision rendered pursuant to

section 25 of the IRPA and Williams v Canada (Minister ofCitizenship and Immigration), 2017 FC 707 at para 51 where the doctrine was held to not prevent the revisiting of a spousal sponsorshipdecision). [29] In determining whether the doctrine applies in a given circumstance, the unfairness to an individual in reopening a final decision isweighed against the harm that might result if the administrative decision maker were prevented from fulfilling its mandate.

This practicalapproach to the application of the doctrine is described by Brown and Evans in Judicial Review of Administrative Action in Canada,(Toronto: Thomson Reuters, 2013) (loose-leaf updated 2021, release 1) at 12:56: such analysis should include a weighing of any unfairness to the individual that might arise as a result of reopening, againstthe public harm that might be caused by preventing the agency from discharging its statutory mandate if it could not reopen.As well, it should include consideration of any statutory mandate, the breadth of the discretion conferred on the decision-maker, and the availability of other relief such as a right of appeal.

In other words, the application of the doctrine would belimited to those situations where the benefits of finality and certainty in decision-making outweigh those of responsivenessto changing circumstances, new information and second thoughts. [30] Adopting the practical approach, I find no unfairness accrues to the Applicant from the revisiting of the refusal decision. [31] The Applicant does allege that the Officer engaged in conduct contrary to the IRPA in rendering the decision and that thecancellation decision covers up this conduct. I do not agree. The conduct complained of is reflected in the record.

The cancellationdecision does not erase the record or prevent the Applicant from initiating a complaint in respect of the alleged misconduct. [32] To strictly apply the functus officio doctrine in this context would mean that decisions that are clearly unreasonable, andacknowledged as such by the Respondent, would nonetheless have to come before a court before the Respondent might address anadmittedly unreasonable decision rendered in a non-adjudicative process.

In my view, such an approach, would be inconsistent with theinformal nature of the process engaged where a work permit is sought under the International Mobility Program. In this context, decisionmakers are acting in a non-adjudicative role and exercising a broad discretion similar to a humanitarian and compassionate application. [33] The continuing adversarial relationship would not be resolved through the consideration of the merits of this Application.

Further,the use of judicial resources to consider the merits of this Application, where the Respondent does not dispute the Applicant’s position, issimply not warranted. Finally, the Applicant’s concerns with respect to the conduct of the officer rendering the refusal decision are notsufficient reasons for the Court to exercise discretion and consider the matter. [34] Having concluded this matter is moot and that there are no reasons to exercise my discretion to consider the moot Application on itsmerits, the Application is dismissed. V. Costs [35] Both parties seek costs.

As the Respondent has succeeded on the Application, I have only considered the Respondent’s costsubmissions.

"[""36""] " Rule 22 of the Immigration Rules provides that "“No costs shall be awarded to or payable by any party in respect of anapplication for leave, an application for judicial review or an appeal under these Rules unless the Court, for special reasons, so orders.” " [37] The jurisprudence establishes that the threshold for establishing the existence of special reasons is high and the issue must beassessed based on the particular circumstances of each case (Dhaliwal v Canada (Minister of Citizenship and Immigration), 2011 FC 201

at paras 29-30 [ Dhaliwal ]). [ 38 ] The Respondent submits that the Applicant’s conduct has unnecessarily prolonged the proceeding warranting an award of costs. The Respondent further submits that the Applicant’s failure to fully and candidly disclose all facts relevant to a consideration of the Application—the Applicant’s record and memorandum on leave made no mention of reapplying after filing the ALJR—also justifies a costs award. [ 39 ] A party’s conduct that unreasonably and unnecessarily prolongs proceedings has previously been found to amount to special reasons ( Dhaliwal at para 32 ).

However, a party’s desire to vigorously pursue an application for judicial review does not give rise to special reasons for costs. In this instance, the Applicant has relied on the doctrine of functus officio in vigorously pursuing the Application.

I have not been convinced by the Applicant’s position in this regard, but the mere fact that the argument was unsuccessful does not amount to special reasons warranting an award of costs. [ 40 ] Similarly, while disclosure of all circumstances surrounding the decision in dispute would have been preferable, I am not convinced that the Applicant withheld facts that he believed to be material. Therefore, I am not prepared to find the alleged lack of candour warrants an award of costs in this particular circumstance. VI. Conclusion [ 41 ] The application is dismissed.

The parties have not identified a question of general importance for certification, and none arises. JUDGMENT IN IMM-3971-19 THIS COURT’S JUDGMENT is that : 1 . The Respondent’s motion for an extension of time to serve and file its supplementary memorandum is granted. Service is deemed to have been effected and the Respondent’s supplementary memorandum is deemed to be filed; 2 . The Application is dismissed; 3 . No question is certified; 4 .

No costs are awarded. “Patrick Gleeson” Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-3971-19 STYLE OF CAUSE: NABEEL KHIZAR v THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS PLACE OF HEARING: by videoconference DATE OF HEARING: May 19, 2021 JUDGMENT AND reasons: GLEESON J. DATED: JUNE 22, 2021 APPEARANCES :

Mark J. Gruszczynski For The Applicant Zoé Richard For The Respondent SOLICITORS OF RECORD : Canada Immigration Team Barristers and Solicitors Montréal, Quebec For The Applicant Attorney General of Canada Montréal, Quebec For The Respondent