Once a decision has been rendered in relation to an application for a humanitarian and compassionate exemption, is the ability of the decision-maker to reopen or reconsider the application on the basis of further evidence provided by an applicant limited by the doctrine of functus officio?
๐๐ข๐ฏ๐ข๐ฅ๐ข (๐๐๐) ๐ท. ๐๐ถ๐ณ๐ถ๐ฌ๐ฌ๐ข๐ญ 2010 ๐๐๐ 230
The principle of functus officio does not strictly apply in H & C decisions and non-adjudicative administrative proceedings.
Immigration officers have discretion at all stages of the H&C process up to and including applications to reopen rendered decisions.
As a general rule, the doctrine of functus officio holds that a tribunal has reached a final decision in respect of a matter cannot revisit that decision because an error is later discovered unless the error is minor.ย
However, as stated in ๐๐ข๐ฏ๐ข๐ฅ๐ข (๐๐๐) ๐ท. ๐๐ถ๐ณ๐ถ๐ฌ๐ฌ๐ข๐ญ 2010 ๐๐๐ 230 at paragraph 3, “the principle of functus officio does not strictly apply in non-adjudicative administrative proceedings … in appropriate circumstances, discretion does exist to enable an administrative decision-maker to reconsider his or her decision.”
In ๐๐ฉ๐ช๐ป๐ข๐ณ ๐ท ๐๐ข๐ฏ๐ข๐ฅ๐ข (๐๐ถ๐ฃ๐ญ๐ช๐ค ๐๐ข๐ง๐ฆ๐ต๐บ ๐ข๐ฏ๐ฅ ๐๐ฎ๐ฆ๐ณ๐จ๐ฆ๐ฏ๐ค๐บ ๐๐ณ๐ฆ๐ฑ๐ข๐ณ๐ฆ๐ฅ๐ฏ๐ฆ๐ด๐ด), 2021 ๐๐ 641 at paragraph 29, the Court considered the doctrine of functus officio in an immigration setting, where the Respondent, in that case, acknowledged that a Border Service Officer had erred in his decision and later canceled the decision.ย
In applying the doctrine, the Court stated that the unfairness to an individual in reopening a final decision must be weighed against the harm that might result if the administrative decision-maker were prevented from fulfilling its mandate.
