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Federal Court |
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Cour fédérale |
Ottawa, Ontario, March 17, 2010
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for judicial review of the decision of an Officer with the Minister of Public Safety and Emergency Preparedness dated October 9, 2008, wherein the Officer refused the Applicant’s Pre-Removal Risk Assessment (PRRA) application. The Applicant seeks the following relief: that the decision of the Minister be set aside and the matter be referred back for re-determination by a differently constituted panel.
[2] For the reasons set out below this application has been rendered moot by the removal of the Applicant from Canada. There is no longer a live issue between the parties and the Court declines to exercise its discretion to decide the matter on the merits (see Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342; [1989] S.C.J. No. 14).
I. Background
[3] The Applicant is a citizen of Ethiopia that has been to Canada six times. She has a Canadian born daughter who is not a party to this application.
[4] On her fifth visit to Canada in May 2006, the Applicant made a refugee claim. She withdrew this claim in October 2007 and opted not to have a Pre-Removal Risk Assessment (PRRA) conducted. The Applicant voluntarily left Canada for Ethiopia in December 2007. Approximately one month later, the Applicant left Ethiopia for the Unites States. She did not make a refugee claim in the United States. In February 2008, the Applicant applied to extend a visitor’s visa previously issued to her for entry into Canada. The request was denied.
[5] The Applicant made a second refugee claim in July 2008. This second claim was rejected pursuant to subsection 101(1)(c) of the Immigration and Refugee Protection Act, R.S. 2001, c. 27 (IRPA). The Applicant was invited to submit a PRRA and did so based on domestic violence and her membership in a particular political group. The PRRA application was refused on October 9, 2008. The Applicant sought leave for judicial review of the PRRA Officer’s decision.
[6] The Applicant was ordered to be removed on January 8, 2009 and the Applicant brought a stay of her removal to this Court. On January 7, 2009, Justice Michael Kelen dismissed the stay on the basis that there was no irreparable harm (Mekuria v. Canada (Citizenship and Immigration Canada), IMM-5290-08 (January 7, 2009). The Applicant was removed from Canada.
[7] On December 14, 2009, the Applicant’s application for leave was granted.
II. Analysis
[8] The parties agree that this matter is moot. The Respondent argued this point in their Memorandum of Fact and Law and the Applicant stated at paragraph 3 of their Further Memorandum of Argument that “The Applicant is no longer in Canada. Accordingly, the matter is moot”. As stated above, I agree.
[9] As set out in Borowski, above, the Court has the discretion to decide the matter even if it is moot. In Borowski, above, the Supreme Court of Canada set out three issues to consider when determining if the Court should exercise this discretion. These can be summed up 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.
[10] The Applicant argues that the Court should exercise its discretion based on the best interests of the Applicant’s Canadian born child. The Applicant argues further that the destination of removal was the United States when the stay of removal was argued. The Applicant is now in Ethiopia and it is in the interests of justice to hear the case as the focus of the irreparable harm was not the harm in Ethiopia but in the United States.
[11] The Respondent argues that the Court should not exercise its discretion. I agree
[12] In declining to exercise my discretion, I rely on this Court’s decisions in Rana v. Canada (Minister of Citizenship and Immigration), 2010 FC 36, Sogi v. Canada (Minister of Citizenship and Immigration), 2007 FC 108; [2007] F.C.J. 158, Perez v. Canada (Minister of Citizenship and Immigration), 2008 FC 663; 328 F.T.R. 290, Ero v. Canada (Minister of Citizenship and Immigration), 2002 FCT 1276; 226 F.T.R. 311. In these cases, the Court was faced with similar issues as here – that the Applicant had been removed from Canada prior to the hearing of their application for judicial review.
[13] In this matter, I am satisfied that an adversarial context still exists between the parties. However, the existence of an adversarial context does not outweigh the other two issues set out in Borowski, above.
[14] These issues, the conservation of judicial resources and the importance of not departing of the courts role as the adjudicative branch, were discussed by Justice Luc Martineau in Perez, above. I agree with his conclusions and apply them to this case. Specifically, that a moot issue should not unduly take up judicial resources, that a re-determination order may establish a new category of persons in need of protection, that what was once a legal action of the government (the enforcement of the removal order) may become illegal afterwards simply by judicial dicta, and that a hearing of the judicial review in this instance may, in essence, amount to an indirect review of the merits of Justice Kelen’s discretionary decision with regard to the stay.
[15] A further consideration is that I cannot grant a practical remedy in this case - while I may set aside the decision of the Officer, I cannot order a new PRRA be undertaken (see Ero, above, at paragraphs 26-27). The purpose of a PRRA, as set out in paragraph 31 of Sogi, above, is to assess the risks before the removal, not after.
[16] In this case, the Applicant’s daughter is a Canadian citizen and is not under any removal order. While it is normally best for children to remain with their parents, I note that the child has immediate family in Canada who can care for her, and have already done so.
[17] At the time of the stay application, the Applicant was to be deported to the United States. The fact that the United States subsequently sent the Applicant to Ethiopia is beyond the reach of this Court and does not persuade me that I should exercise my discretion to hear the matter.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that:
1. this application is dismissed; and
2. there is no order as to costs.