BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER
DAWSONJ.
[1] Mr. Alfred brings this application for judicial review of the decision of a pre-removal risk assessment officer ("officer") that rejected Mr. Alfred's application for a pre-removal risk assessment ("PRRA"). The application was rejected because it was determined that Mr. Alfred enjoys status as a permanent resident in Botswana (where he faced no risks) and so is a person referred to in section E of Article 1 of the United Nations Convention Relating to the Status of Refugees ("Convention"). Thus, Mr. Alfred was found not to be a person in need of protection against a risk of persecution, danger of torture, risk to life, or risk of cruel and unusual treatment or punishment.
[2] After commencing this application for judicial review, Mr. Alfred moved for an order staying his pending removal from Canada. On November 5, 2004, a judge of this Court dismissed the motion for a stay finding that, although a serious issue was raised, "the evidence submitted does not establish a prima facie case that the Applicant would suffer irreparable harm because of his own situation; [considering] that irreparable harm must be more than simply the usual consequences of removal and that it must involve the likelihood of jeopardy to the Applicant's life or safety".
[3] As a consequence of the order dismissing the motion for a stay, Mr. Alfred was removed from Canada. As a further consequence, the day before this application was to be heard, counsel for the Minister advised counsel for Mr. Alfred and the Court that she intended to argue that this application is moot. The Court allowed the argument to be raised at the hearing of the application, and counsel for Mr. Alfred did not need to avail himself of the opportunity offered to him to provide written submissions on the issue of mootness. The issue of mootness was, therefore, fully argued at the hearing of the application.
THE ISSUES
[4] As a result, it is necessary for the Court to determine the following issues:
1. Is this application for judicial review moot?
2. If so, should the Court nonetheless exercise its discretion to hear the application?
If the application is not moot, or the Court decides that, while moot, the application should be heard, Mr. Alfred raises the following issues:
3. Were the requirements of procedural fairness violated because Mr. Alfred was invited to make PRRA submissions only in respect of his countries of nationality and habitual residence? He was not told that he was to be removed to the country from which he came to Canada, and so had no opportunity to address submissions to the officer as to the risk he faced if removed to that country.
4. Did the officer err by failing to consider documents before him because the officer erroneously construed subsection 113(a) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("Act")? (Section 113 of the Act is set out in the Appendix to these reasons.)
BACKGROUND FACTS
[5] In my view, it is necessary to set out the underlying facts in some detail.
[6] Mr. Alfred was born in Colombo, Sri Lanka in 1959 and is of Tamil ethnicity. He travelled to Canada in 2001 and on arrival claimed status as a Convention refugee. While the Refugee Protection Division of the Immigration and Refugee Board ("RPD") found Mr. Alfred testified in a forthcoming and a straightforward manner, it also found that he had status as a permanent resident in Botswana. As a result, Mr. Alfred was found to be excluded from Convention refugee status under Article 1E of the Convention (Article 1E renders the Convention inapplicable to persons who are recognized by the competent authorities in the country in which they have taken residence as having the rights and obligations which attach to the possession of the nationality of that country). Additionally, the RPD found Mr. Alfred would not face a danger of torture or risk to his life, or risk of cruel and unusual treatment or punishment, if he returned to Botswana.
[7] As a result of the negative decision of the RPD, Mr. Alfred was notified of his right to apply for protection. The application form provided to him referred to the risks he might be exposed to if returned to his "country of nationality or habitual residence" and required him to list all of the significant incidents that caused him "to seek protection outside of your country of nationality or former habitual residence". Mr. Alfred's PRRA submissions were confined to the risks he faced in Sri Lanka, and what he characterized as new evidence to establish that, irrespective of whether the Article 1E exclusion was correct at the time the RPD rendered its decision, it was no longer correct in that he no longer had status in Botswana. At the time Mr. Alfred submitted his PRRA application, he did not know that he would be removed neither to Sri Lanka nor Botswana, but rather would be removed to the United States.
[8] The officer, in rejecting Mr. Alfred's PRRA application, refused to consider the "new evidence" presented with respect to Mr. Alfred's status in Botswana because, in the officer's view, the evidence could not be considered as being reasonably unavailable or unexpected at the time of the hearing before the RPD. In the officer's view, subsection 113(a) of the Act precluded consideration of this evidence. In the result, the officer found the material before him to be insufficient to establish that Mr. Alfred was not subject to the Article 1E exclusion. The officer went on to note the intent of Citizenship and Immigration Canada to return Mr. Alfred to the United States, but found "there is no evidence before me which would lead me to believe the applicant faces any risks described in [sections 96 or 97 of the Act] in the United States nor is there evidence to show, on a balance, an intent on the part of U.S. authorities to return the applicant to Sri Lanka". The officer went on to conclude that "[b]ased on the totality of the above, I am of the opinion there is no need to consider the evidence presented in support of the alleged risk to the applicant in Sri Lanka at this time".
[9] After Mr. Alfred's request for a stay was dismissed by this Court, he was removed to the United States where he was very briefly held before being returned to Sri Lanka.
[10] In the result, Mr. Alfred was removed to the United States without having had any opportunity to make submissions to the officer with respect to the risk he faced there (including the risk of immediate removal to Sri Lanka). Mr. Alfred was then removed to Sri Lanka in circumstances where the officer had not found it necessary to consider the evidence provided to establish the risk Mr. Alfred faced in Sri Lanka.
CONSIDERATION OF THE ISSUES
1. Is this application moot?
[11] To argue that the application is moot, the Minister relies upon the decision of this Court in Nalliah v. Canada(Minister of Citizenship and Immigration), 2005 FC 759 where, at paragraph 15, the Court wrote:
15 [...] I conclude that any judicial review application directed against a negative PRRA decision is moot where the Applicant for judicial review has been removed from, or has voluntarily left Canada following a finding by a judge of this Court that the Applicant is not entitled to a stay of removal by reason that he or she has failed to meet the "irreparable harm" element of the tripartite test for a stay of removal.
[12] In response, Mr. Alfred argues that Nalliah is distinguishable because Mr. Nalliah had been found to be excluded from refugee protection by virtue of Article 1F(a) of the Convention. As a result, his PRRA application was limited to considering whether he would be subject to a risk of torture, or risk to his life, or a risk of cruel and unusual treatment or punishment (see subsection 113(d) of the Act). In contrast, Mr. Alfred was entitled to have his risk assessed against that ground and the more extensive ground of whether he had a well-founded fear of persecution on Convention grounds. That assessment is broader, and is said to not be co-extensive with the risk of irreparable harm assessed on a motion to stay removal. Hence, Mr. Alfred submits that the negative result on his motion for a stay of removal should not render this application moot.
[13] Neither counsel referred to the decision of this Court in Thamotharampillai v. Canada(Solicitor General),2005 FC 756, a decision issued on the same day as Nalliah, by the same judge. Mr. Thamotharampillai had also sought judicial review from a negative PRRA decision and, like Mr. Alfred, was entitled to have his risk assessed against the factors contained in both sections 96 and 97 of the Act. Based on the identical analysis to that conducted in Nalliah, the Court concluded that Mr. Thamotharampillai's application for judicial review was moot because he had been removed from Canada following a finding that he was not entitled to a stay of removal by reason of his failure to meet the irreparable harm element of the tripartite test for a stay of removal.
[14] In my view, Mr. Alfred's situation cannot be distinguished from that of Mr. Thamotharampillai.
[15] Under the Act, final decisions of this Court cannot be appealed unless a serious question of general importance is certified, and interlocutory decisions may not be appealed at all. Thus, judges of the Court must be particularly careful not to unnecessarily introduce conflict in the jurisprudence of the Court. In Ziyadah v. Canada (Minister of Citizenship and Immigration), [1999] 4 F.C. 152, Mr. Justice Pelletier, then of this Court, considered how the competing interests of the independence of the judiciary and the need for certainty and predictability in the law are reconciled through careful application of the doctrine of stare decisis. Mr. Justice Pelletier adopted the approach articulated by Justice Wilson in Re Hansard Spruce Mills Ltd., [1954] 4 D.L.R. 590 [B.C.S.C.], and adopted by Justice Granger in R. v. Koziolek, [1999] O.J. 657 (Gen. Div.). Justice Wilson had written as follows (at page 591):
But, as I said in the Cairney case, I think the power, or rather the proper discretionary duty of a trial Judge, is more limited. The Court of Appeal, by overriding itself in Bell v. Klein, has settled the law. But I have no power to overrule a brother Judge, I can only differ from him, and the effect of my doing so is not to settle but rather to unsettle the law, because, following such a difference of opinion, the unhappy litigant is confronted with conflicting opinions emanating from the same Court and therefore of the same legal weight. This is a state of affairs which cannot develop in the Court of Appeal.
Therefore, to epitomize what I have already written in the Cairney case, I say this: I will only go against a judgment of another Judge of this Court if:
(a) Subsequent decisions have affected the validity of the impugned judgment;
(b) it is demonstrated that some binding authority in case law, or some relevant statute was not considered;
(c) the judgment was unconsidered, a nisi prius judgment given in circumstances familiar to all trial Judges, where the exigencies of the trial require an immediate decision without opportunity to fully consult authority.
If none of these situations exist I think a trial Judge should follow the decisions of his brother Judges. [underlining added]
[16] When of the view that a prior, final decision cannot be followed, clear reasons should be given and a question certified to allow the Court of Appeal to settle the law.
[17] I am satisfied that, in reaching his decision in Thamotharampillai, my colleague did not ignore any relevant authority or statutory provision. The judgment was fully considered, and essentially consistent with the prior decision of the Court in Figurado v. Canada(Solicitor General)(2005), 262 F.T.R. 219. For the sake of rationality and consistency in the jurisprudence, I therefore adopt the conclusion of the Court in Thamotharampillai. It follows that I find this application for judicial review to be moot.
[18] I now turn to consider whether the Court should, nonetheless, exercise its discretion to hear this application.
2. Should the Court nonetheless exercise its discretion to hear the application?
[19] In Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342, the Supreme Court of Canada established three factors that a court should consider when determining whether to exercise its discretion to hear a matter which is moot. They are: first, whether an adversarial relationship between the parties still exists; second, whether the expenditure of judicial resources is justified; and third, the need for the court to demonstrate a measure of awareness of its proper law-making limitation. Put another way, the third factor requires the court to consider if, in the absence of a live dispute, a decision by the court on the matter would be an intrusion into the functions of the legislative branch of government.
[20] Turning to the first factor, I am satisfied that an adversarial relationship between the parties still exists. It was not until the day before this application was to be argued that the issue of mootness was raised by the Minister. Application records had been filed and counsel for both parties were present in Court. In similar circumstances, Mr. Justice Rothstein, then of this Court, found an existing adversarial context in Ramoutar v. Canada(Minister of Employment and Immigration), [1993] 3 F.C. 370 (T.D.).
[21] The Minister, relying upon the decision of this Court in Nalliah, supra, argues that it is not appropriate for the Court to address this adversarial context because to do so would be to sit in review of the merits of the decision of my colleague who denied Mr. Alfred a stay of removal because Mr. Alfred had failed to establish that he would suffer irreparable harm if removed. The Minister argues that, as the Court of Appeal noted in Canada (Solicitor General) v. Bubla, [1995] 2 F.C. 680, there is no inherent power in one judge to review, either directly or collaterally, the merits of a decision made by a colleague.
[22] In my view, no authority need be cited for that proposition. However, I conclude that the determination that Mr. Alfred had not established irreparable harm is a separate determination from that now before the Court as to the reasonableness or propriety of the negative PRRA decision. They are different in the following respects.
[23] First, while the question of risk was before both the officer and the judge who dealt with the motion for a stay, this is not the question now before the Court. In this application, the Court is confined to determining whether the officer breached the rules of procedural fairness or otherwise committed a reviewable error when he decided to reject the PRRA application.
[24] Second, to the extent that, in the course of reviewing the officer's decision, the Court must consider whether any error arose in the officer's assessment of risk, in my view what the officer was required to consider was qualitatively different from what was relevant and before the Court on the motion for a stay.
[25] In dismissing the motion for a stay, my colleague found no prima facie case that Mr. Alfred "would suffer irreparable harm" because he considered that irreparable harm "must involve the likelihood of jeopardy to [Mr. Alfred's] life or safety". It is settled law that, because a stay is an exceptional remedy, a party seeking a stay must establish, on a balance of probabilities, a clear, convincing and non-speculative risk of harm that cannot be remedied. There is some jurisprudence to the effect that an applicant for a stay must go so far as to establish jeopardy to a person's life or jeopardy (for example, Calderon v. Canada(Minister of Citizenship and Immigration) (1995), 92 F.T.R. 107). Other jurisprudence applies a less stringent test of irreparable harm (for example, Calabrese v. Canada(Minister of Citizenship and Immigration) (1996), 115 F.T.R. 213). The test for irreparable harm, particularly as expressed in its more stringent form, and as applied in this case on the motion for a stay, is not the test the officer was obliged to apply when conducting the PRRA. Therefore, the test for irreparable harm is not the test, the application of which is to be reviewed by the Court on this application. The differences between what must be established to show irreparable harm on a motion for a stay, and what is necessary in order to obtain a favourable PRRA include the following:
(i) A person may establish themselves to be in need of protection if they come within the definition of a Convention refugee. One may fall within that definition without being able to establish irreparable harm in the sense of a likelihood of jeopardy to one's life or safety in at least two circumstances: first, where country conditions have changed but compelling reasons exist, arising out of past persecution, torture, treatment or punishment, for refusing to avail oneself of state protection; and second, where persecution is established on the basis of the cumulative effect of conduct that is, by itself, harassment but not persecution.
(ii) The existence of irreparable harm must be established on a balance of probabilities. On the other hand, the assessment of the likelihood of future persecutory treatment is to be based on the lower standard of a reasonable possibility.
(iii) The existence of irreparable harm is to be assessed only from the time of the motion for a stay until the underlying application for judicial review is determined. On the other hand, risk is to be assessed on a PRRA on a forward looking basis that is not so time-limited.
[26] Finally, at the time my colleague dismissed the motion for stay of removal, there was a substantial body of jurisprudence, in the context of motions to stay removal, to the effect that removal pending determination of an application for judicial review of a negative PRRA decision would not render the underlying application moot. See, for example: Kim v. Canada(Minister of Citizenship and Immigration) (2003), 33 Imm. L.R. (3d) 95 (T.D.); Buchting v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 1216; Torres v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 153; and Singh v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 214 (There is also subsequent jurisprudence to the same effect, notably the decision of Mr. Justice Evans in Selliah v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 1200 (C.A.) where he refused a stay of removal on the ground that removal would not render nugatory the appeal from a decision upholding a negative PRRA).
[27] Consistent with this jurisprudence, and on the facts of this case implicit in the conclusion on the motion for a stay that irreparable harm was not established, was the underlying assumption that dismissing the motion for a stay would not render the application for judicial review moot. In that circumstance, declining now to hear the application for judicial review would collaterally contradict the assumption upon which the stay was dismissed by my colleague.
[28] These considerations illustrate, I believe, that the Court may judicially review the negative PRRA assessment without incidentally reviewing or collaterally attacking the decision that Mr. Alfred had not established irreparable harm when he moved for a stay of his removal.
[29] Moving to the second factor, concern for judicial economy, I am not satisfied that having prepared for the hearing of this application before the issue of mootness was raised, and having heard full argument on all of the issues, judicial resources will be inappropriately utilized if the application is determined on its merits. This is particularly so where, as discussed below, the Minister concedes that the requirements of procedural fairness were breached by the officer in reaching his decision, and where the consequence to Mr. Alfred of allowing the decision to stand include that, as a result of the execution of the removal order, Mr. Alfred cannot return to Canada unless so authorized (see: subsection 52(1) of the Act). I note in this regard that in the prior case of Figurado, supra, the Minister took the position that there was no impediment to having a PRRA decision redetermined while the applicant remained out of Canada, and took the further position that if successful on such redetermination, the Minister would facilitate the applicant's entry to Canada.
[30] As to the final factor, I am unable to conclude that, even in the absence of a live controversy, a decision on the merits in this case could reasonably be seen to be an intrusion by the Court into the functions of the legislative branch. That this is so was implicit, I believe, in the position taken by the Minister in Figurado, particularly as explained at paragraphs 12, 13, 14 and 44 of that decision.
[31] It follows that I exercise my discretion to decide the underlying application for judicial review on its merits.
3. Were the requirements of procedural fairness violated?
[32] In oral argument, counsel for the Minister conceded that the requirements of procedural fairness were violated when the officer received pertinent information, not known to Mr. Alfred, and failed to convey that information to Mr. Alfred. That information was that Citizenship and Immigration Canada intended to remove Mr. Alfred to the United States. Having conceded this breach, the Minister argues that the error was "remedied" when Mr. Alfred applied for a stay of removal and placed evidence and arguments before this Court that dealt with the risk he faced if removed to the United States.
[33] I respectfully disagree. The usual consequence of any breach of procedural fairness is that the resultant decision is set aside and remitted for redetermination. There is a limited exception where the reviewing court is satisfied that sending the matter back for redetermination would inevitably result in precisely the same decision. See, for example, Yassine v. Canada(Minister of Employment and Immigration), (1994) 172 N.R. 308 (F.C.A.) at paragraphs 9 and 10. However, except in exceptional circumstances, it is not appropriate to speculate about whether the ultimate decision would have been any different had the requirements of procedural fairness been met.
[34] As previously noted, when deciding the existence of irreparable harm on a motion to stay removal, the Court is not conducting a pre-removal risk assessment and a number of different considerations apply. For the reasons set out above, one cannot, in my view, conflate a proper pre-removal risk assessment into a decision as to whether irreparable harm is made out on a motion for stay of removal. For this reason, I am not persuaded that sending the matter back for redetermination would inevitably result in the same decision. This is particularly so where Mr. Alfred was returned to Sri Lanka, but the officer deliberately declined to consider the risks Mr. Alfred faced in Sri Lanka.
[35] It follows that the application for judicial review will be allowed.
4. The proper interpretation of subsection 113(a) of the Act.
[36] Given my finding with respect to procedural fairness, it is not necessary for me to deal with this issue. However, as the matter may well arise again in the course of redetermining the PRRA application, I did consider whether to deal with what constitutes new evidence. However, whether information was previously reasonably available, or whether it is reasonable to have expected such information to have been put before the RPD, is in large part of question fact. In my view, better information could have been provided to the officer as to why the information placed before the officer qualified as new evidence within the scope of subsection 113(a) of the Act. I would anticipate that Mr. Alfred will do so in the course of the redetermination. If, after this, the dispute again arises, there will be better evidence upon which the Court may judicially review the officer's decision.
CONCLUSION AND CERTIFICATION OF A QUESTION
[37] It was agreed that counsel would have the opportunity to make submissions with respect to the certification of a question with the benefit of these reasons. Therefore, counsel for the Minister has seven days from receipt of these reasons to serve and file submissions with respect to the certification of a question. Following receipt of those submissions, counsel for Mr. Alfred may serve and file responding submissions within seven days. Within three days of receipt of those submissions, counsel for the Minister may serve and file any reply submissions.
[38] Following consideration of those submissions, an order will issue allowing the application for judicial review and dealing with certification of a question.
"Eleanor R. Dawson"
______________________________
Judge
Ottawa, Canada
August 18, 2005
APPENDIX
Section 113 of the Immigration and Refugee Protection Act:
| 113. Consideration of an application for protection shall be as follows: (a) an applicant whose claim to refugee protection has been rejected may present only new evidence that arose after the rejection or was not reasonably available, or that the applicant could not reasonably have been expected in the circumstances to have presented, at the time of the rejection; (b) a hearing may be held if the Minister, on the basis of prescribed factors, is of the opinion that a hearing is required; (c) in the case of an applicant not described in subsection 112(3), consideration shall be on the basis of sections 96 to 98; (d) in the case of an applicant described in subsection 112(3), consideration shall be on the basis of the factors set out in section 97 and (i) in the case of an applicant for protection who is inadmissible on grounds of serious criminality, whether they are a danger to the public in Canada, or (ii) in the case of any other applicant, whether the application should be refused because of the nature and severity of acts committed by the applicant or because of the danger that the applicant constitutes to the security of Canada.
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113. Il est disposé de la demande comme il suit : a) le demandeur d'asile débouté ne peut présenter que des éléments de preuve survenus depuis le rejet ou qui n'étaient alors pas normalement accessibles ou, s'ils l'étaient, qu'il n'était pas raisonnable, dans les circonstances, de s'attendre à ce qu'il les ait présentés au moment du rejet;
b) une audience peut être tenue si le ministre l'estime requis compte tenu des facteurs réglementaires;
c) s'agissant du demandeur non visé au paragraphe 112(3), sur la base des articles 96 à 98;
d) s'agissant du demandeur visé au paragraphe 112(3), sur la base des éléments mentionnés à l'article 97 et, d'autre part : (i) soit du fait que le demandeur interdit de territoire pour grande criminalité constitue un danger pour le public au Canada,
(ii) soit, dans le cas de tout autre demandeur, du fait que la demande devrait être rejetée en raison de la nature et de la gravité de ses actes passés ou du danger qu'il constitue pour la sécurité du Canada.
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FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-8955-04
STYLE OF CAUSE: ANTON ALFRED V. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: WINNIPEG, MANITOBA
DATE OF HEARING: JUNE 16, 2005
APPEARANCES:
ALIYAH RAHAMAN FOR THE RESPONDENT
SOLICITORS OF RECORD:
DAVID MATAS
BARRISTER & SOLICITOR FOR THE APPLICANT
WINNIPEG, MANITOBA
JOHN H. SIMS, Q.C.