[1] Mr. Da Silva applies for judicial review of a decision of immigration enforcement officer, dated March 25, 2003. In that decision, the officer denied the applicant's request for deferral of his removal pending final disposition of his application for permanent residence from within Canada on humanitarian and compassionate grounds (the "H & C application"). A motion for a stay of the removal order was dismissed on March 26, 2003 and Mr. Da Silva was removed the same day to Portugal. This was his third removal from this country due to a lengthy history of criminal convictions.
[2] The respondent has moved for dismissal of the application on the ground that it is now moot due to the applicant's removal from the country and because his H & C application has been dismissed in the interim. Accordingly, there is no longer a live dispute between the parties. The applicant argues that a live controversy remains because he has filed an application for judicial review from the negative H & C decision.
[3] In the alternative, the applicant argues that even if the Court were to find that the matter is now moot, I should exercise my discretion to make a decision on the merits of his case.
[4] It is important to emphasize that this is not a challenge to the legitimacy of the removal order itself, but only to the officer's decision as to the timing of the removal order, in not exercising her limited discretion to defer removal.
[5] Applying the first stage of the two-step analysis set out by the Supreme Court of Canada in Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342, I find that the matter between the parties is moot. In Borowski, supra, Justice Sopinka 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.
[6] The tangible and concrete dispute between the parties in this case has disappeared, that is, whether the officer erred in the exercise of her limited discretion in making the decision not to defer the timing of the applicant's removal until after he had received a decision on his H & C application. This issue has now become academic, given that he has been removed from Canada. Moreover, the reason for which deferral was sought no longer exists as the decision on the H & C application has been rendered. The fact that the applicant has sought judicial review of that decision is not sufficient, in my view, to keep this application alive.
[7] The second branch of the analysis set out in Borowski, supra, involves a decision as to whether this Court should exercise its discretion to hear and decide the judicial review, despite it being moot. The Supreme Court of Canada identified certain factors to consider when determining whether a moot case should still be heard such as: (1) the continued existence of an adversarial relationship between the parties and (2) whether hearing and deciding the case justified the expenditure of judicial resources.
[8] Having regard to the above factors, I do not find this an appropriate case to exercise my discretion to decide an otherwise moot application. The adversarial relationship, in relation to the decision being challenged, is no longer apparent. I can see no "collateral consequences" of the outcome of this judicial review for the applicant that would be one way of extending the adversarial relationship between him and the Minister: see Borowski, supra, at 359. The fact that a moot decision may have "collateral consequences" for an applicant was analysed in the immigration context in Ramoutar v. Canada (Minister of Employment and Immigration), [1993] 3 F.C. 370 (T.D.). There, Justice Rothstein (as he then was) stated at paragraph 14:
In this case, a decision very damaging to the applicant is now part of the applicant's record for immigration purposes. That decision could have an adverse effect on the applicant in any further proceedings he may wish to bring under Canada's immigration laws ... It is quite conceivable that this decision could have a bearing on the success of the applicant's application. In these circumstances, a decision decided by reference to the wrong standard of proof and without affording the applicant procedural fairness, could potentially prejudice the applicant in the future.
[9] In my opinion, the decision not to defer removal of the applicant's deportation is not one that is so damaging that it would have an adverse effect on his future immigration proceedings. Such damage to his record with the immigration authorities had already been done by other actions of the applicant, unrelated to the decision under review, such as twice previously returning to Canada without the proper permission, resulting in two prior removals from Canada, and the commission of his extensive criminal record in Canada. Moreover, there is no justification for the expenditure of judicial resources to decide this moot application.
[10] Therefore, I find this application for judicial review moot and I will not deal with the merits. Accordingly, it is dismissed. No question for certification having been proposed, none is certified.
ORDER
THIS COURT ORDERS that this application for judicial review is dismissed. No question is certified.
"Richard G. Mosley"
J.F.C.
FEDERAL COURT
Name of Counsel and Solicitors of Record
DOCKET: IMM-2039-03
STYLE OF CAUSE: JOSE JOAQUIM DA SILVA
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
DATE OF HEARING: AUGUST 19, 2004
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
AND ORDER BY: MOSLEY J.
DATED: AUGUST 19, 2004
APPEARANCES BY:
Ms. Wennie Lee
FOR THE APPLICANT
Ms. Mielka Visnic
FOR THE RESPONDENT
SOLICITORS OF RECORD:
The Law Firm of Wennie Lee
North York, Ontario
FOR THE APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada
FOR THE RESPONDENT
FEDERAL COURT
Date: 20040819
Docket: IMM-2039-03
BETWEEN:
JOSE JOAQUIM DA SILVA
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
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