Date: 20050527
Docket: IMM-1963-04
Citation: 2005 FC 756
BETWEEN:
PAKEERATHAN THAMOTHARAMPILLAI
Applicant
and
THE SOLICITOR GENERAL FOR CANADA
Respondent
INTRODUCTION
[1] These reasons follow the hearing of an application for judicial review of a decision of a Pre-Removal Risk Assessment Officer (the "Officer") wherein the Officer determined that the Applicant would not be subject to a risk of torture, risk to life or risk of cruel and unusual treatment or punishment if returned to Sri Lanka, his country of nationality. The decision under review is dated the 13th of January, 2004.
BACKGROUND
[2] The Applicant is a Tamil, a citizen of Sri Lanka and is from the north of Sri Lanka. He was born in April of 1971 and is therefore now thirty-four (34) years of age. The Applicant came to Canada as a landed immigrant in 1991, sponsored by his brother who had earlier been granted Convention refugee status here in Canada. In 1996, the Applicant pleaded guilty to possession of heroin for the purpose of trafficking and was sentenced to eight (8) years imprisonment. In August of 1997, he was declared to be a danger to the public by the Minister of Citizenship and Immigration. He was ordered deported from Canada in October of 1997. In 1999, the Applicant brought an action for a declaration that his removal to Sri Lanka would be in violation of his rights under sections 7 and 12 of the Canadian Charter of Rights and Freedoms[1]. Pending the outcome of that action, he was successful in obtaining a stay of the deportation order issued against him[2]. The Applicant's action was discontinued by him on the 1st of June, 2001.
[3] In June of 2001, a Post-Determination Refugee Claimants in Canada officer concluded that the Applicant faced personalized risk if returned to Sri Lanka at that time. A year later, however, his application for permanent residence on humanitarian and compassionate grounds was denied. That decision was set aside in July, 2003, with this Court directing that a fresh determination along with a fresh risk assessment be performed.[3]
[4] On the 1st of August, 2003, the Applicant's parole on his sentence for possession for the purpose of trafficking was suspended and a warrant was issued for his arrest due to his having violated the terms of his parole. On the 24th of November, 2003, the Applicant's application for landing on humanitarian and compassionate grounds was again refused. The decision here under review followed.
[5] An application for stay of removal of the Applicant from Canada pending disposition of this application for judicial review was denied by Order of this Court dated the 19th of April, 2004. Reasons for denial of the stay followed the next day[4]. While my colleague Justice Mosley who denied the stay of removal found there to be a serious issue to be tried on the current application for judicial review, he concluded that the Applicant had not established that he would suffer irreparable harm if deported to Sri Lanka in the circumstances then prevailing. He wrote:
In my view, having carefully considered the evidence submitted by the Applicant and the PRRA officer's decision, the applicant has not established that he would suffer irreparable harm if deported to Sri Lanka in the current circumstances. The objective evidence considered by the PRRA officer was that the country conditions had changed significantly since the 2001 risk assessment, based on 1999 and 2000 reports, was conducted. He concluded that the applicant could live safely in Colombo among the large Tamil population in that city. The applicant has offered nothing to challenge that conclusion other than vague speculation that he would be labelled a Tamil gang member by the authorities by reason of his criminal conviction and perceived associations with the LTTE. The applicant has been in this country since 1991. There was no evidence offered to support a finding that he would be of interest to the Sri Lankan authorities. Irreparable harm cannot be speculative or based on a series of possibilities: ... [citation omitted]
[6] In the event, the Applicant was deported to Sri Lanka.
THE ISSUES ON THIS APPLICATION FOR JUDICIAL REVIEW
[7] In the Applicant's Memorandum of Fact and Law, the issues are identified in the following terms:
- Did the officer err in law by applying the wrong burden of proof?
- Did the officer err in law because she failed to consider the fact that a previous positive determination had been made in the assessment of risk?
[8] At hearing, counsel for the Applicant abandoned the first issue in light of the recent decision of the Federal Court of Appeal in Li v. Canada (Minister of Citizenship and Immigration)[5]. At the close of the hearing, the Court raised with counsel the issue of mootness, particularly in light of the decision of my colleague Justice Martineau in Figurado v. Canada (Solicitor General)[6] ("Figurado"). Counsel were invited to provide written submissions on the issue of mootness and on the further issue of certification of a question. Those submissions have been received and reviewed by the Court. I will first deal with the issue of mootness and what I consider to be an interrelated issue, that being the earlier decision of my colleague Justice Mosley rejecting an application for stay of removal of the Applicant to Sri Lanka on the ground of failure to establish that he would suffer irreparable harm by reason of such removal.
ANALYSIS
a) Mootness
[9] In Figurado, Justice Martineau had before him an application for judicial review of a decision of a PRRA officer with respect to a citizen of Sri Lanka who, like the Applicant herein, had been denied a stay of removal pending determination of the application for judicial review but who, once again like the Applicant herein, was granted leave in respect of his application for judicial review. Justice Martineau wrote at paragraph [8] of his reasons:
The applicant seeks to have the PRRA decision set aside and asks that the matter be remitted for redetermination before a different officer. However, in the meantime, on February 16, 2004, this Court dismissed the applicant's motion requesting a stay of the enforcement of the removal order until the present judicial review application could be heard and decided. The Motions Judge considered there was no serious issue raised. The applicant has since been removed from Canada. That said, on September 17, 2004, the Applications Judge granted leave for judicial review.
[10] Thus, while the circumstances that were before Justice Martineau were similar to those on this application for judicial review, they differed in that a stay of removal in that matter was denied on the basis of no serious issue to be tried while here, a serious issue was determined to exist but irreparable harm was determined not to have been established.
[11] The leading case on mootness is the decision of the Supreme Court of Canada in Borowski v. Canada (Attorney General)[7] where Justice Sopinka, for the Court, wrote at page 353:
The doctrine of mootness is an aspect of a general policy or practice that a court may decline to decide a case which raises merely a hypothetical or abstract question. The general principle applies when the decision of the court will not have the effect of resolving some controversy which affects or may affect the rights of the parties. If the decision of the court will have no practical effect on such rights, the court will decline to decide the case. This essential ingredient must be present not only when the action or proceeding is commenced but at the time when the court is called upon to reach a decision. Accordingly if, subsequent to the initiation of the action or proceeding, events occur which affect the relationship of the parties so that no present live controversy exists which affects the rights of the parties, the case is said to be moot. The general policy or practice is enforced in moot cases unless the court exercises its discretion to depart from its policy or practice. The relevant factors relating to the exercise of the court's discretion are discussed hereinafter.
The approach in recent cases involves a two-step analysis. First it is necessary to determine whether the required tangible and concrete dispute has disappeared and the issues have become academic. Second, if the response to the first question is affirmative, it is necessary to decide if the court should exercise its discretion to hear the case. The cases do not always make it clear whether the term "moot" applies to cases that do not present a concrete controversy or whether the term applies only to such of those cases as the court declines to hear. In the interest of clarity, I consider that a case is moot if it fails to meet the "live controversy" test. A court may nonetheless elect to address a moot issue if the circumstances warrant. [emphasis added]
[12] As did Justice Martineau on the basis of an extensive analysis in Figurado, I consider that this matter is moot in that it fails to meet the "live controversy" test. Justice Martineau wrote at paragraph [41]:
The fact that PRRA applicants receive a statutory stay of removal under section 232 of the IRPA Regulations is indicative of the legislative intent to have PRRAs completed before applicants are to be returned to face the risks they allege. The PRRA's fundamental purpose is to determine whether or not a person can safely be removed from Canada without being subject to persecution, torture or inhumane treatment. This purpose ceases to exist upon removal. Further, if the applicant returned and suffered persecution, torture or inhumane treatment, the redetermination of the PRRA may not have any practical effect. In this context, it is understandable that judges of various jurisdiction have stated that in such cases, where a serious issue is raised, a stay should be granted to prevent irreparable harm. As was decided by Lane J. of the Ontario Court (General Division) in Suresh v. R. ..., where "the evidence shows that [the applicant] will almost certainly be detained and questioned and exposed to the risks of torture and extra-judicial execution ... there is a strong probability that it will be impossible for the Canadian courts to influence the situation at all. His application will become moot, for any relief he might obtain would be unenforceable". ... It follows that the refusal by the Court to grant an applicant a stay pending the determination of his judicial review application "decides the whole case against him" and certainly constitutes an irreparable harm in such circumstances. [citation omitted]
[13] Clearly my colleague Justice Mosley did not share Justice Martineau's view that failure to grant a stay on facts such as those now before the Court "...certainly constitutes an irreparable harm in such circumstances." On the facts of this matter, I share the position of Justice Mosley. Justice Martineau continued in paragraph [43] of his reasons in Figurado:
... The primary purpose of an application for protection made under section 112 of the IRPA is not to gain permanent resident status or to obtain a permanent resident visa once removal has been affected [sic]. It certainly becomes more difficult, if not impossible, for Canada to effectively protect an individual who is outside its boundaries pending a redetermination of an application for protection following the Court's conclusion that a negative PRRA decision should be set aside. Therefore, I find that there is considerable force in the applicant's counsel's submission that any ensuing judicial review application directed against a negative PRRA decision becomes somewhat moot once an individual is removed from Canada. ...
[14] I agree entirely with Justice Martineau's conclusion in the last sentence of the foregoing quotation except that I am not sure whether there is any such thing as "somewhat moot". 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 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.
[15] In Freitas v. Canada (Minister of Citizenship and Immigration)[8], I wrote at paragraph [29], in the context of a judicial review of a negative Convention refugee determination decision:
Against this overarching and clear human rights object and purpose as the background to this matter, I adopt the position of counsel for the applicant. In the absence of express words on the face of the Act requiring me to do so, I am not prepared to read the right conferred on the applicant herein by subsection 82.1(1) of the Act in such a manner that it is rendered nugatory by the performance by the respondent of her duty to execute a removal order as soon as reasonably practicable. Nor am I prepared to have the applicant's right indirectly rendered nugatory by the rendering of a decision of this Court that confers a meaningless right to a redetermination by the CRDD. I determine this application not to be moot in that it continues to present a live controversy. I am satisfied that this conclusion is consistent with the decision of Rothstein J. in Ramoutar, ... . [citation omitted]
[16] I am satisfied, on the basis that what is here before the Court is an application for judicial review of a PRRA decision rather than of a Convention refugee determination decision, this matter is distinguishable from the foregoing, particularly in circumstances where, as here, there has been a finding by this Court that the Applicant will not suffer irreparable harm by reason of return to Sri Lanka.
[17] I turn then to the second step in the analysis in mootness situations, determination of whether, notwithstanding a finding of mootness, the Court should nonetheless exercise its discretion to hear the case. In Borowski, supra, the Supreme Court of Canada outlined the following factors for a court to consider when deciding whether or not to exercise its discretion to hear a matter:
- first, whether an adversarial context still exists;
- secondly, the concern for judicial economy; and
- thirdly, the need for the Court to demonstrate a measure of awareness of its proper law-making function.
[18] While an adversarial context might be argued with some force to continue to exist on the facts of this matter, I am satisfied that any such adversarial context is not one that it is appropriate for me to address. In Canada (Solicitor General) v. Bubla[9], Justice of Appeal Strayer wrote at paragraph [16] of his reasons:
... There is no inherent power in one judge to review the merits of a decision of another judge of coordinate jurisdiction. Nor is the decision of a superior court judge open to review in collateral proceedings. While it may be open to the judge who disposes of an application for leave to reconsider the matter himself in certain limited circumstances, it is not open to another judge to sit on appeal from that decision. The hearing of an application for judicial review is not an occasion for hearing an appeal from the decision to grant leave to seek that judicial review. Therefore the learned Trial Judge should have declined to deal with the attack by Bubla's counsel on the validity of the order of MacKay J. granting leave.
[19] By analogy, I am satisfied that it would not be open to me, if I were to hear this judicial review, and in the absence of qualitatively significant evidence properly before the Court that was not before Justice Mosley, to sit in review of the merits of the decision of my colleague that the Applicant herein, on the material that was then before him, had not established that he would suffer irreparable harm if deported to Sri Lanka in the then current circumstances. I am satisfied that such would be the essence of any decision sending the negative decision of the PRRA Officer that is here under review back for reconsideration and redetermination by a different PRRA Officer.[10]
[20] In light of my conclusion with regard to the first factor, I need not address the second factor relating to the exercise of my discretion to hear this matter, that is to say, the concern for judicial economy. I will, however, briefly address the third factor which is the need for this Court to demonstrate a measure of awareness of its proper law-making function.
[21] Section 232 of the Immigration and Refugee Protection Regulations[11] provides for a stay of removal where a PRRA application is made, which continues generally speaking, until the PRRA application is rejected if such be the case. Such was the case on the facts of this matter. It is noteworthy that the same Regulations do not provide for a continuation of the stay where an application for judicial review of a PRRA decision is made, whether or not leave is granted on that application. Thus, the Governor-in-Council, acting under authority granted by Parliament, saw fit not to extend the section 232 stay to circumstances such as those underlying this application for judicial review. In the result, it remained open to my colleague Justice Mosley to deny a discretionary judicial stay and, when he did so, to the Respondent to remove the Applicant notwithstanding the Applicant's allegation of serious risk of irreparable harm.
[22] For this Court to now override the impact of Justice Mosley's determination not to grant a stay and the Respondent's resulting removal of the Applicant to Sri Lanka, would arguably amount to the Court usurping a law making function of the Governor-in-Council that the Governor-in-Council clearly chose not to exercise. Justice Mosley found the Applicant's evidence failed to demonstrate that he would suffer irreparable harm if removed to Sri Lanka. In such circumstances, for the Court to nonetheless hear this application for judicial review and, if the judicial review were granted, to refer the matter back to a different PRRA Officer for determination of the issue of risk would, I am satisfied, be inappropriate as an encroachment on the proper law-making function of the Governor-in-Council.
[23] In the result, the Court declines to exercise its discretion to hear this application for judicial review, notwithstanding its mootness.
[24] In light of the foregoing, the Court will not examine the sole substantive issue properly before it, that being the issue of whether or not the PRRA Officer erred in law because she allegedly failed to consider the fact that a previous positive determination had been made in the assessment of the risk to the Applicant.
[25] The issue of whether or not the decision under review was made in a manner that violated the principles of natural justice and the principles of fundamental justice under section 7 of the Canadian Charter of Rights and Freedoms in that the decision was made by a tribunal that allegedly lacked institutional independence or was subject to institutional bias was not raised on this application for judicial review notwithstanding that it has been raised and in fact argued on applications for judicial review of similar decisions. That issue will not be addressed in the context of this matter. It is addressed in reasons issued contemporaneously with these reasons in Say et al v. The Solicitor General of Canada.[12]
CERTIFICATION OF A QUESTION
[26] Counsel for the Applicant proposed the following questions for certification on this application for judicial review:
- Is a Pre-Removal Risk Assessment officer required to consider a prior positive risk assessment found by another risk assessment officer in the context of a humanitarian and compassionate decision?
- Is an application for judicial review of a Pre-Removal Risk Assessment moot after an individual has been removed from Canada?
[27] Counsel for the Applicant urged that both of these questions transcend the interests represented in this particular application and thus are of general importance, that they are serious questions and that they would be determinative on appeal of my decision herein.
[28] Counsel for the Respondent urged that the first proposed question for certification should not be certified as it would not be determinative. Given my decision not to determine the substance of this application, I share the representation of counsel for the Respondent. Counsel for the Respondent urged that the second question proposed for certification is too general to be determinative on an appeal of this decision. While I agree with the position taken by counsel for the Respondent, a variation of the proposed question will be certified as the Court is satisfied that it is a serious question of general importance that, as varied, would be determinative of an appeal. The second question will be rewritten in the following terms:
- Is an application for judicial review of a Pre-Removal Risk Assessment moot where the individual who is the subject of the decision has been removed from Canada after an application for stay of removal has been rejected on the grounds that the Applicant has failed to establish that such removal would subject him to irreparable harm and, further, if it is moot, is it open to the Trial Court to decline to exercise its discretion to hear the application for judicial review, notwithstanding its mootness?
CONCLUSION
[29] In the result, this application for judicial review will be dismissed. A question, in the terms just recited, will be certified.
_____________________________
J.F.C.
Ottawa, Ontario
May 27, 2005
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-1963-04
STYLE OF CAUSE: PAKEERATHAN THAMOTHARAMPILLAI
Applicant
- and -
SOLICITOR GENERAL OF CANADA Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: WEDNESDAY APRIL 14, 2005
REASONS FOR ORDER
AND ORDER BY: Gibson, J.
DATED: May 27, 2005
APPEARANCES BY: Ms. Brena Parnes
For the Applicant
Mr. Lorne McClenaghan
For the Respondent
SOLICITORS OF RECORD: Ms. Brena Parnes
Barrister & Solicitor
Waldman & Associates
281 Eglinton Avenue East
Toronto, ON M4P 1L3
For the Applicant
John. H. Sims, Q.C.
Deputy Attorney General of Canada
For the Respondent
[1] Part I of the Constitution Act, 1982, (R.S.C. 1985, Appendix II, No. 44), being Schedule B to the Canada Act, 1982 (U.K.), 1982, c. 11.
[2] Thamotharampillai v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 246 (T.D.)(Q.L).
[3] Thamotharampillai v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 1058 (T.D.)(Q.L).
[4] [2004] F.C. 583.
[5] (2005), 41 Imm. L.R. (3d) 157, leave to appeal to the Supreme Court of Canada denied, [2005] S.C.C.A. No. 119.
[6] [2005] F.C. J. No. 458 (Q.L.).
[7] [1989] 1 S.C.R. 342.
[8] [1999] 2 F.C. 432 (F.C.T.D.).
[9] [1995] 2 F.C. 680 (F.C.A.), (not cited before me).
[10] To the same effect see Guzman v. Canada (MCI) [2002] F.C.J. No. 25 at paragraph [16] (F.C.T.D.), and Zhu v. Canada (MCI) [1995] F.C.J. No. 1396 at paragraph [8] (F.C.T.D.).
[11] SOR/2002 - 227.
[12] 2005 FC 739.