Date: 1998-10-06
Docket: IMM-3234-97
| BETWEEN: VICTOR DAVID LOPEZ MORENO |
Applicant
| AND: THE MINISTER OF CITIZENSHIP and IMMIGRATION |
Respondent
REASONS FOR ORDER AND ORDER
DENAULT J.
[1] This application for judicial review, brought under s. 82.1(6) of the Immigration Act1 ("the Act"), arises out of the respondent's refusal to cause an inquiry to be held pursuant to subsection 27(6) of the Act. The applicant seeks an Order in the nature of mandamus to compel the respondent to cause an inquiry to be held in accordance with paragraph 27(3)(b) and subsection 27(6) of the Act.
[2] The facts of this case may be summarized as follows. The applicant, a Peruvian citizen, entered Canada with his wife on January 31, 1987. At an immigration inquiry held on March 2 of that same year, the applicant claimed convention refugee status. That claim was processed under the Refugee Backlog Program.
[3] It was under that very Program that the applicant and his wife first applied for permanent resident status on January 3, 1992. As part of the process relative to that application, a s. 27(2) report was written by an immigration officer on October 4, 1993. The report alleged that the applicant was a person described in s. 19(1)(j) of the Act in that there existed reasonable grounds to believe that the applicant had committed an act or omission that constituted a war crime or crime against humanity. That report formed the basis for the refusal of permanent resident status relative to both the applicant and his wife.
[4] On October 5, 1993, a Direction for Inquiry was issued pursuant to paragraph 27(3)(b) to direct a senior immigration officer to cause an inquiry to be held to determine if the applicant was a person described in s. 19(1)(j) of the Act. Before that inquiry could be held, however, the following events transpired: (1) After appearing before the Immigration and Refugee Board on five separate dates, the applicant was informed by the IRB , on March 1, 1995, that his refugee claim could not be adjudicated because persons who have committed war crimes or crimes against humanity are, by virtue of that status, excluded from the definition of refugee. The applicant never attempted to have that finding set aside; (2) On February 26, 1997, the applicant and his wife filed a second application for permanent resident status on humanitarian and compassionate grounds. That application was denied on April 7, 1997; (3) A new s. 27(2) report was written on April 18, 1997 alleging that the applicant was inadmissible to Canada on the ground that he had not presented a valid immigrant visa or travel document at a port of entry in 1987. It was this report which resulted in the issuance of a Removal Order against the applicant on April 30, 1997; (4) The applicant sought, in a May 15, 1997 application, to have the Removal Order set aside but a Notice of Discontinuance was filed, in relation to that application, by applicant's counsel on July 29, 1997; (5) On May 15, 1997, the October 5, 1993 Direction for Inquiry was cancelled; (6) The applicant and his wife voluntarily left Canada on May 29, 1997.
[5] The issue which arises from the applicant's pleadings and oral arguments is whether a senior immigration officer has the discretion to refuse to hold an enquiry once the Deputy Minister has directed that an inquiry be held pursuant to paragraph 27(3)(b).
[6] The applicant contends that a senior immigration officer has neither the discretion to dispense with the inquiry once a Direction for Inquiry has been issued nor the discretion to unduly delay such an inquiry. He further contends that he was entitled to have the inquiry as soon after the October 5, 1993 Direction as was reasonably practicable. The applicant maintains that the duty to hold the inquiry is now due, given the passage of four years' time (now five years) since the issuance of the Direction for Inquiry, and that it is incumbent on the senior immigration officer to hold that inquiry. The applicant's written request that an inquiry be held has gone unheeded. For these reasons, argues the applicant, there has been an unreasonable delay in holding the inquiry, contrary to subsection 27(6) of the Act.
[7] The respondent, however, relies on the doctrine of mootness to advance the argument that the relief sought by the applicant cannot be granted because the applicant's voluntary departure from Canada, in compliance with the Removal Order dated April 30, 1997, has effectively rendered the matter moot. Given that the Direction for Inquiry was cancelled on May 15, 1997, there is no justiciable issue in the case at bar, contends the respondent, and it follows that the remedy of mandamus cannot issue.
[8] After careful consideration, I find that this application cannot succeed. When raised, the issue of mootness requires for its resolution a factual analysis grounded in the two-stage process re-affirmed by the Supreme Court of Canada in R. v. Adams2. The first stage of the analysis is a determination of whether a live controversy actually exists. I am of the opinion that, in the case at bar, three significant factors coalesced and ultimately culminated in the execution of a Removal Order, which execution has effectively rendered the matter moot. Those three factors are re-iterated here for clarity. First, in keeping with a Direction to Appear for a Determination Under Subsection 27(4), the applicant and his wife reported to a Canada Immigration Centre on April 30, 1997 as a result of a new s. 27(2) report which alleged that they had entered this country in 1987 without having applied for the appropriate visas. They were ordered removed as a result of that s. 27(4) Determination. Second, the Notice of Application which the applicant filed on May 15, 1997 to have the Removal Order set aside was discontinued on July 29, 1997. Third, the applicant in fact complied with the April 30, 1997 Removal Order and left Canada voluntarily on May 29, 1997. In the aggregate, these factors have had a transformative and, ultimately, determinative effect on the controversy in the instant case, rendering it merely hypothetical in nature.
[9] The second stage of the analysis is triggered by a negative finding relative to the first stage: if no live controversy exists, the Court must go on to consider whether it should exercise its discretion to hear the matter despite the finding of mootness. Such a determination hinges on the following criteria, as articulated by the Supreme Court of Canada in Borowski v. Canada (Attorney General)3: (1) the existence of an adversarial context; (2) the concern for judicial economy; and (3) the Court's need to demonstrate an awareness of its proper law-making function. Significantly, the Supreme Court added the following caution:
| This is not to suggest that it is a mechanical process. The principles identified above may not all support the same conclusion. The presence of one or two of the factors may be overborne by the absence of the third, and vice versa.4 |
Guided by the criteria in Borowski, I find that, on balance, judicial discretion should not be exercised in the applicant's favour in the case at bar. Specifically, the singular circumstances of this case make it an isolated occurrence: although it would not necessarily be in his best interest to do so, the applicant, in essence, wishes to compel an inquiry claiming that this would give him a unique and pivotal opportunity to answer the allegations contained in the s. 27(2) report dated October 4, 1997. He maintains that only then will the allegations that he was described in paragraph 19(1)(j) of the Act cease to operate as a bar to obtaining permanent resident status. Significantly, the applicant was previously accorded the opportunity to respond to those very allegations when, during the course of his refugee hearing, he was confronted with the allegation that he was a person who had committed war crimes or crimes against humanity.
[10] Given that this is not a case which is reasonably likely to recur, in light of its particular factual parameters, and that this is not a case in which it would be in the public interest to address the issue raised, narrowly circumscribed as it is by the factual basis of the case, I decline to exercise discretion in favour of the applicant. Save for the criterion of an adversarial process which operates in the applicant's favour, the Borowski criteria overwhelmingly favour dismissing the application in the instant case, particularly in light of the concern for judicial economy. This Court will not engage in the resolution of the theoretical question raised by the applicant.
[11] Significantly, the dismissal of this application is in no way dependent on or tied to the IRB's determination that the applicant is excluded from the definition of refugee. This Court is not bound by the IRB's finding that the applicant participated directly and indirectly in the commission of crimes against humanity5, which finding the applicant never sought to have set aside.
[12] Had I not found the matter to be moot, however, and had that mootness not been dispositive in the instant case, the application would have been similarly dismissed because the applicant is no longer subject to the Direction for Inquiry which he seeks to enforce, that Direction having been cancelled on May 15, 1997. In his insistence on the want of discretion attaching to a senior immigration officer and on "duty being now due", the applicant only perfunctorily considers the legal ramifications of the cancelled Direction for Inquiry.
[13] The cancellation of that Direction is, however, central to the matter, so central in fact that it essentially transforms the issue at hand. It is thus that the issue raised by the facts of this case is no longer whether a senior immigration officer has the discretion to refuse to hold an inquiry once a Direction for Inquiry has been issued pursuant to paragraph 27(3)(b) but, rather, whether the Deputy Minister is legally entitled to cancel a Direction for Inquiry following the issuance of such a Direction in accordance with paragraph 27(3)(b) of the Act.
[14] In this regard, the applicant maintains that the Deputy Minister is not empowered to cancel or withdraw a Direction after its issuance because, at that juncture, she or he would be functus officio. On this point, I disagree. First, I note that the issuance of a Direction for Inquiry flows directly from the Deputy Minister's discretionary power. In keeping with the provisions of paragraph 27(3)(b), the Deputy Minister "may ... direct that an inquiry be held". It follows that the Deputy Minister may, likewise, choose not to direct such an inquiry. The two possibilities enjoy a rational and complementary co-existence within the realm of the Deputy Minister's discretionary power.
[15] Second, that there exists no absolute prohibition against the modification or withdrawal of a Direction for Inquiry following its issuance is evidenced by Estrada v. M.E.I.6 In that case, the original Direction for Inquiry was withdrawn and a second Direction was issued. This Court found that the process to which the applicant, Mr. Estrada, had been subjected could neither be characterized as "a mere sham" or as "a clear case of abuse of process".7 Although Estrada is factually distinguishable from the instant case, it nonetheless serves to underscore the proposition that the Deputy Minister clearly has the discretion to modify or withdraw a Direction for Inquiry if and when she or he sees fit to do so.
Additionally, Canada (Min. of Employment & Immigration) v. Kindler8 provides further guidance in the case at bar. It was in Kindler that the Federal Court of Appeal likened the Deputy Minister's discretionary power to make purely administrative decisions, including the decision to issue a Direction for Inquiry pursuant to paragraph 27(3)(b)of the Act, to the discretion exercised by a prosecutor in a criminal case:
| The Deputy Minister has only to decide that an inquiry is warranted, which he would do on the existence of a prima facie case. His decision is analogous to that of any prosecutor who decides to proceed with a charge before the courts.9 |
That Court went on to characterize as "most important" the following fact:
| ... the decisions involved are merely decisions with respect to the respondent, not against him. ... In other words, it is not a decision to deprive the respondent of his life, liberty, security of the person or even of his property, and so does not fall under the principle that there is "a duty of procedural fairness lying on every public authority making an administrative decision which is not of a legislative nature and which affects the rights, privileges or interests of an individual"...10 (emphasis added) |
[16] Similarly, the Deputy Minister's decision to cancel the Direction for Inquiry following its issuance is clearly a decision with respect to the applicant, not a decision against him. As such, the applicant is not entitled to greater procedural protections than those already afforded him.
[17] While the applicant argues that the respondent's failure to convoke an inquiry effectively operates as a perpetual bar to permanent resident status, Kindler would have this Court disregard that potentiality: "... our courts should not ... take into account other possible consequences ..."11 of the withdrawal of the Direction. Given that Kindler is binding authority in respect of the case at bar, I am compelled to dismiss this application for the reasons provided above.
[18] Finally, each of the parties submitted for certification a serious question of general importance. The applicant proposed the following question for certification:
| Is there a discretion under section 27 of the Immigration Act, R.S.C. 1985, c. I-2, as amended, not to hold an inquiry when the Deputy Minister has directed that an inquiry be held under paragraph 27(3)(b) of the Act? |
| Answer: The issue has been rendered irrelevant by virtue of the cancellation of the Deputy Minister's Direction for Inquiry, which cancellation was a lawful act for the reasons offered above. |
[19] The respondent proposed the following question for certification:
| Should the Court issue an Order in the nature of mandamus to compel the Respondent to hold an inquiry with respect to a person whose removal from Canada has already been lawfully effected? |
Answer: In light of the reasons articulated above, the question is irrelevant.
[20] Given the above answers, no serious question of general importance is to be certified in this matter.
ORDER
| This application for judicial review is dismissed. |
J.F.C.C.
__________________2 [1995] 4 S.C.R. 707, at 718.
3 [1989] 1 S.C.R. 342, at 358-363.
5 "... le tribunal est d'opinion que le demandeur doit être exclu de la définition de réfugié en vertu de l'article 1F(a) de la Convention en raison de sa participation directe et indirecte à la commission de gestes constituant des crimes contre l'humanité." (p.23 of the IRB's decision dated March 1, 1995).
6 (1987), 1 Imm. L.R. (2d) 24.
10 Kindler, at 40-41. The principle, as quoted herein, was affirmed in Cardinal et al. v. Director of Kent Institution, [1985] 2 S.C.R. 643, at 653.