Nalliah v. Canada (Minister of Citizenship and Immigration), 2005 FC 759

Date: 20050527

Docket: IMM-9071-04

Citation: 2005 FC 759

BETWEEN:

                                                   VIVEKANANTHAN NALLIAH

                                                                                                                                            Applicant

                                                                           and

                           THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                        THE SOLICITOR GENERAL OF CANADA

                                                                                                                                      Respondents

                                                        REASONS FOR ORDER

GIBSON J.:

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") dated the 29^th of September, 2004 in which the Officer determined that the Applicant would not be subject to risk of torture, risk to life or risk of cruel and unusual treatment or punishment if returned to Sri Lanka, his country of nationality or habitual residence.

[2]                This application for judicial review was one of three such applications, heard together at Toronto on the 25^th and 26^th of April, 2005, in which the issue of institutional bias or lack of independence and impartially on the part of Pre-Removal Assessment Officers during the period from the 12^th of December, 2003 to the 8^th of October, 2004 when such Officers were situated, in an organizational sense, within the Canada Border Services Agency (the "CBSA") of the Government of Canada, was raised. That issue is addressed in reasons for decision in one of the other two matters, Chea Say et al v. The Solicitor General of Canada^[1], which will be released contemporaneously with these reasons. Those reasons as they relate to the institutional bias issue are incorporated by reference into these reasons.

BACKGROUND

[3]                The Applicant is a Tamil citizen of Sri Lanka from the north of that island nation. He arrived in Canada in 1999 and made a claim for Convention refugee protection. That claim was rejected in June of 2002. The Convention Refugee Protection Division determined the Applicant to be excluded from refugee protection by virtue of Article 1F(A) of the United Nations Convention Relating to the Status of Refugees, that is to say, it found the Applicant to be a person with respect to whom there are serious reasons for considering that he had committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes. The Convention Refugee Determination Division went on to find that, if the Applicant had not been excluded from refugee protection, he would have been recognized as a Convention refugee.

[4]                The Applicant applied for a Pre-Removal Risk Assessment alleging the following: while he was in Sri Lanka, he was subjected to extortion by government-related agencies. At the same time, he was harassed by Tamil Tigers who demanded farm produce from him and forced him to work for them. He complied with the demands of the Tamil Tigers believing that he would be killed if he did not comply. To escape from the Tigers, the Applicant fled to Colombo. While in Colombo, he was arrested by the police, taken to a police station and detained for nearly three (3) weeks during which time he was tortured, photographed and fingerprinted. The Applicant was only released upon payment of a bribe. As a condition of his release, he was required to report to the police every second day. When he complied with the reporting requirement, he was held overnight and once again ill-treated. He was required to provide the police with information concerning the Tamil Tigers. Faced with that requirement, and fearing for his life, he left Sri Lanka for Canada.

[5]                Following the negative decision in respect of his PRRA application, this application for judicial review was commenced. At the same time, arrangements for removal of the Applicant from Canada were finalized. The Applicant sought a stay of the execution of those removal arrangements. His removal was scheduled to the United States. He expressed a preference, if he were to be removed from Canada, that the removal be to Sri Lanka.

[6]                The Applicant's application for a stay of removal was rejected. While my colleague Justice Snider found there to be a serious issue to be tried on this and like applications for judicial review, she concluded that the risk of irreparable harm to which the Applicant alleged he would be subjected was purely speculative. Further, my colleague determined that the "balance of convenience" favoured removal of the Applicant.^[2]

[7]                Removal arrangements were finalized. The Applicant has, on his own initiative, returned to Sri Lanka.

THE ISSUES

[8]                Only one issue on this application for judicial review is identified in the Memorandum of Fact and Law filed on behalf of the Applicant. It is stated in the following terms:

Was the Applicant's PRRA decision made in violation of natural justice and the principles of fundamental justice under section 7 of the Canadian Charter of Rights and Freedoms^[3], in that the decision was made by a tribunal that lacked institutional independence?

[9]                At the opening of the hearing of this application for judicial review, the Court raised the issue of whether or not this application for judicial review was moot. Counsel requested leave to deal with the issue of mootness in written submissions. Leave was granted. The written submissions have been received and reviewed by the Court. For the reasons that follow, the Court concludes that this application for judicial review is moot and declines to exercise its discretion to nonetheless deal with the substantive issue raised by the Applicant since that issue arises in the context of the two other applications for judicial review heard together with this application. On those applications for judicial review, the Applicants remained in Canada. Thus, the question of mootness did not arise in those matters.

ANALYSIS

1)         Mootness

[10]            In Figurado v. Canada (Solicitor General)^[4] ("Figurado"), my colleague 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.

[11]            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.

[12]            The leading case on mootness is the decision of the Supreme Court of Canada in Borowski v. Canada (Attorney General)^[5] 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]

[13]            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]

[14]            Clearly my colleague Justice Snider 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 Snider. 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. ...

[15]            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, 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.

[16]                In Freitas v. Canada (Minister of Citizenship and Immigration)^[6], 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]

[17]            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 removal or voluntary return.

[18]            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.

[19]            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^[7], 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.

[20]            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 Snider, to sit in review of the merits of the decision of my colleague that the Applicant herein, on the material that was then before her, 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.^[8]

[21]            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.

[22]            Section 232 of the Immigration and Refugee Protection Regulations^[9] 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 Snider to deny a discretionary judicial stay and, when she did so, to the Respondent to remove the Applicant notwithstanding the Applicant's allegation of serious risk of irreparable harm.

[23]            For this Court to now override the impact of Justice Snider's determination not to grant a stay and the resulting departure 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 Snider found the Applicant's evidence failed to demonstrate that he would suffer irreparable harm if removed. 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.

[24]            In the result, the Court declines to exercise its discretion to hear this application for judicial review, notwithstanding its mootness.

CONCLUSIONS

[25]            The Court declines to determine this matter and it will thus be dismissed. If the Court were to hear the matter, given the sole issue raised that is referred to earlier and given the Court's reasoning and conclusion with respect to that issue in Chea Say et al v. The Solicitor General of Canada, earlier referred to and incorporated by reference into these reasons, this application for judicial review would be dismissed.

CERTIFICATION OF A QUESTION

[26]            Counsel for the Applicant and for the Respondents jointly proposed certification of the following question on this matter:

Did the Pre-Removal Risk Assessment Unit, under the Canada Border Services Agency, possess the requisite degree of institutional independence such that natural justice and fundamental justice were respected?

[27]            I am satisfied that the jointly proposed question is a serious question of general importance and that an answer to the question would be clearly determinative on any appeal from the order reflecting my conclusions incorporated by reference herein if my conclusions on the issue of mootness were found to be in error. The question proposed will be certified.

[28]            Counsel for the Applicant proposed the following question for certification on the issue of mootness:

-               Is an application for judicial review of a Pre-Removal Risk Assessment moot after an individual has been removed from Canada?

[29]            Counsel for the Applicant urged that the foregoing question transcends the interests represented in this particular application and thus is of general importance, that it is a serious question and that it would be determinative on an appeal of my decision herein.

[30]            Counsel for the Respondent urged against certification of the foregoing question. 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 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 or has left 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?

[31]            The foregoing two questions, that is to say the jointly proposed question and the rewritten question regarding mootness, will be certified.

_____________________________

                       J.F.C.

Ottawa, Ontario

May 27, 2005

FEDERAL COURT

NAME OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                           IMM-9071-04

STYLE OF CAUSE:                           Vivekananthan Nalliah v.

The Solicitor General for Canada

PLACE OF HEARING:                     Toronto, Ontario

DATE OF HEARING:                       April 25 and 26, 2005

REASONS FOR ORDER:                GIBSON J.

DATED:                                              May 27, 2005

APPEARANCES:

Lorne Waldman

Leigh Salsberg

Brena Parnes

Toronto, Ontario

FOR APPLICANT(S)

Marie-Louise Wcislo

Anshumala Juyal

Rhonda Marquis

Angela Marinos

Toronto, Ontario

FOR RESPONDENT(S)

SOLICITORS OF RECORD:

Waldman and Associates

Toronto, Ontario

FOR APPLICANT(S)

John H. Sims, Q.C.

Deputy Attorney General of Canada

FOR RESPONDENT(S)