Date: 20050622
Docket: IMM-3853-04
Citation: 2005 FC 885
BETWEEN:
ABEL BERHANUE
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
[1] Abel Berhanue came to Canada from Ethiopia. He claimed to be and was found to be a Convention refugee. He then did what he should do, which is to file for permanent residence within 180 days thereof. In applying on his behalf the refugee law office said Mr. Berhanue was unable to pay the required processing fee of $550. The Minister was asked to waive that fee pursuant to section 25 of the Immigration and Refugee Protection Act which allows him or her on humanitarian and compassionate considerations to examine the circumstances and to grant "an exemption from any applicable criteria or obligation of this Act..."
[2] The application was originally returned because it was incomplete (which was subsequently rectified) and because proof of payment of the "cost recovery" fee was not provided.
[3] Mr. Berhanue seeks judicial review of that decision which he characterizes as one "wherein the Immigration officer ignored and refused [his] request to be exempt from the cost recovery fees..."
[4] Since then, however, some friends were kind enough to lend him the money, the fee has been paid, his application for permanent residence has been approved in principle and he is currently going through the various steps in the process, such as a medical and security clearance. If all goes well he will be granted permanent resident status. If he is not granted such status, it is not because he was late submitting his fee.
[5] Consequently, the Minister has taken the position that the application is moot and there is no reason why this Court, in the exercise of its judicial discretion, should nevertheless hear it.
[6] Furthermore, even if the processing fee had not been paid, the Minister submits that the application is wrong in law because there was no decision made by a person of authority whether to waive the fee or not. He also submits that the issue is not justiciable in that the refugee lawyers supporting the application are really seeking a change in policy.
[7] Since the Federal Court is a circuit court and judicial reviews are heard at special sittings, I took the mootness issue under reserve and then heard argument on the other points. If I did not, and then decided either that the point is not moot or that it is moot but should nevertheless be heard, a new special sitting would have to be arranged. That is not a good exercise of judicial economy.
MOOTNESS
[8] The leading case is that of the Supreme Court in Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342. As more recently succinctly summarized in Doucet-Boudreau v. Nova Scotia (Minister of Education), [2003] 3 S.C.R. 3, by Iacobucci and Arbour JJ., at paragraph 17:
17 The doctrine of mootness reflects the principle that courts will only hear cases that will have the effect of resolving a live controversy which will or may actually affect the rights of the parties to the litigation except when the courts decide, in the exercise of their discretion, that it is nevertheless in the interest of justice that the appeal be heard (see Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342, at p. 353) .
[9] Counsel for Mr. Berhanue submits the case is not moot. Although he has not asked for a refund of the $550, he might be in position to do so should he obtain a favourable decision.
[10] I am satisfied that the case is moot. This case does not deal with an application for a refund, but rather with a requested waiver of a fee. That issue is no longer "live". If Mr. Berhanue is minded to seek a refund, he might do so under sections 23 and following of the Financial Administration Act, R.S.C. 1985, c. F-11, and Regulations thereunder.
DISCRETION TO HEAR
[11] In Borowski and Doucet-Boudreau, supra, the Supreme Court outlined the three prime criteria for the courts to consider in deciding whether to exercise discretion to hear a moot case as:
"(1) the presence of an adversarial context;
(2) the concern for judicial economy; and
(3) the need for the Court to be sensitive to its role as the adjudicative branch in our political framework."
(Doucet-Boudreau, paragraph 18.)
[12] This case is fully adversarial and has been fully argued. I also accept that apart from ongoing efforts on behalf of refugees to have the policy with respect to cost recovery or processing fees waived or reduced, the argument before me is based on current law, section 25 of the Immigration and Refugee Protection Act. Other decisions of the Minister under section 25 are subject to an application for leave and for judicial review.
[13] However, as interesting as the submissions on behalf of Mr. Berhanue are, in the exercise of my discretion I have decided not to hear the case.
[14] Any decision I would come to would not benefit Mr. Berhanue. He does not need a court order to apply for a refund.
[15] The point raised is novel, so it is entirely foreseeable that whatever decision I might have reached on the merits other judges of the Federal Court may view things differently. There is no appeal to the Federal Court of Appeal unless a question of general importance is certified. In order for the decision, or the reversal thereof, to have significant meaning I would have to certify a question of general importance in a moot case.
[16] I am also concerned that it is certainly arguable that the decision under review was not a decision at all. It is arguable that a more appropriate remedy would have been one akin to a writ of mandamus which would oblige the Minister to come to a decision. That is the manner in which applicants for permanent residence or citizenship, who are faced with inordinate delays, seek redress from this Court. Even if the present proceedings could be reconstituted, although costs are not usually awarded in these matters, it might be open in the circumstances for the Minister to seek costs from Mr. Berhanue.
[17] Finally, I was assured that this case is important because there are many other refugees who are not able to pay the processing fee and find themselves in somewhat of a limbo. They cannot be returned to their country, but on the other hand not being permanent residents will be unable to sponsor family members, and their ultimate goal of citizenship is severely hampered. It would be more appropriate that the issues raised in this case be canvassed in another in which the cost recovery or processing fee has not been paid.
[18] For these reasons, the application for judicial review shall be dismissed.
[19] There is no serious question of general importance for certification.
"Sean Harrington"
Judge
Ottawa, Ontario
June 22, 2005
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3853-04
STYLE OF CAUSE: ABEL BERHANUE
AND
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: JUNE 16, 2005
REASONS FOR ORDER : HARRINGTON J.
DATED: JUNE 22, 2005
APPEARANCES:
Carole Simone Dahan FOR APPLICANT
Marissa B. Bielski FOR RESPONDENT
Martin E. Anderson
SOLICITORS OF RECORD:
Refugee Law Office FOR APPLICANT
Toronto, ON
John H. Sims, Q.C. FOR RESPONDENT
Deputy Attorney General of Canada