Federal Court Decisions

Date: 20080303

Docket: IMM-1046-07

Citation: 2008 FC 274

Ottawa, Ontario, March 3, 2008

PRESENT:     The Honourable Mr. Justice O'Reilly

BETWEEN:

ALMIR KOLENOVIC

Applicant

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR JUDGMENT AND JUDGMENT

[1]               Mr. Almir Kolenovic was scheduled to be removed from Canada to his country of origin, Montenegro, in March 2007. He had asked an immigration enforcement officer to defer his removal, given that he had an outstanding application to re-open his unsuccessful claim for refugee protection, had requested a second pre-removal risk assessment, had recently submitted an application for humanitarian and compassionate relief, was receiving treatment for post traumatic stress disorder, and was afraid to return to Montenegro. The officer refused. Mr. Kolenovic submits that the officer erred and asks me to order the officer to reconsider.

[2]               Subsequent to the request for deferral, Justice Roger Hughes granted Mr. Kolenovic a stay of execution of the removal order pending a decision on his application to re-open his refugee claim. On August 8, 2007, the Immigration and Refugee Board (IRB) refused that application.

[3]               Mr. Kolenovic did not attend the hearing of this application for judicial review on January 16, 2008. Nor did he communicate with the Court to request an adjournment or explain his absence. Counsel for the respondent described unsuccessful attempts to serve Mr. Kolenovic with a Book of Authorities on the day prior to the hearing. In the circumstances and with the agreement of the respondent, I undertook to decide this application on the basis of the materials filed. Attached is a transcript of the proceedings on January 16, 2008.

[4]               The respondent’s position is that these proceedings are moot, given that Mr. Kolenovic, in effect, has already obtained the relief he was seeking from the enforcement officer – he was permitted to remain in Canada to pursue his application before the IRB. I agree with the respondent that this application for judicial review is moot and will exercise my discretion not to decide it.

I.  Issue

[5]               Is this application for judicial review moot, given that Mr. Kolenovic was permitted to remain in Canada pending his application to re-open his refugee claim?

II.  Analysis

[6]               Mr. Kolenovic’s principal argument relates to the failure of the officer to grant him a deferral pending a decision of the IRB. Even if I were to conclude that Mr. Kolenovic’s position should prevail, the remedy to which he would be entitled would be a reconsideration of his request for a deferral until the IRB rendered its decision. But the IRB has already rendered its decision. There is no point asking another officer to grant Mr. Kolenovic’s request. These circumstances render this application moot.

[7]               Mr. Kolenovic also argued that the officer erred by failing to consider new evidence of the risk that faces him in Montenegro. This argument appears entirely baseless given that Mr. Kolenovic had already had the benefit of a refugee hearing and a pre-removal risk assessment, and had recently initiated a request for a second assessment. In addition, the enforcement officer did consider the materials Mr. Kolenovic had submitted and concluded that they did not disclose any further risk.

[8]               The remaining question is whether I should exercise my discretion to decide this application notwithstanding that it is moot. I decline to do so. Considering the relevant criteria (see Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342), there remains, in a general sense, an adversarial relationship between the parties, but I do not think the interests of judicial economy would be served by deciding this case. The law governing the discretion available to enforcement officers is well-settled: Kovacs v. Canada (Minister of Public Safety and Emergency Preparedness), 2007 FC 1247. I am doubtful that the facts before me present an occasion to advance the law or provide guidance to other officers even though, to do so, would not take the Court outside of its proper role.

[9]               Therefore, this application for judicial review is dismissed. No question arises for certification.

JUDGMENT

THIS COURT’S JUDGMENT IS that

1.                  The application for judicial review is dismissed;

2.                  No question of general importance is stated.

“James W. O’Reilly”

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:                                          IMM-1046-07

STYLE OF CAUSE:                          ALMIR KOLENOVIC v. MCI

PLACE OF HEARING:                    TORONTO, ONTARIO

DATE OF HEARING:                      January 16, 2008

REASONS FOR JUDGMENT

AND JUDGMENT:                          O’REILLY J.

DATED:                                             March 3, 2008

APPEARANCES:

SOLICITORS OF RECORD: