Date: 20100601
Docket: IMM-1724-09
Citation: 2010 FC 593
Ottawa,
Ontario, June 1, 2010
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
Deisy Julieth DUITAMA GOMEZ, Edison
Giovanni AMORTEGUI,
Daniel Alejandro AMORTEGUI DUITAMA, and Laura Sofia AMORTEGUI
Applicants
and
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondents
REASONS FOR JUDGMENT
[1]
The applicants filed an Application
for Leave and for Judicial Review on April 7, 2009 stating therein that they sought
review of “the decision rendered by the Minister of Citizenship and Immigration
… in respect to a request for an exemption under s. 25 of [the Immigration
and Refugee Protection Act, R.S.C. 2001, c. 27 (Act)].” They state that
they were notified of that decision on April 7, 2009.
[2]
The applicants, through the steps
set out, tried to engineer a decision upon which to base this application for
judicial review. The applicants wrote to the Minister of Citizenship and
Immigration and to the Pre-Removal Risk Assessment (PRRA) Unit in Toronto on
April 7, 2009, seeking an exemption from the provisions of subsection 101(1)(c)
of the Act which, because of the facts set out below, prevented them from
making a refugee claim. They closed their correspondence with this statement
which was bolded in the original:
Please be
advised that if there is no response to this request by 3:00 pm today, it will
be interpreted as a deemed refusal and an Application for Judicial Review will
be initiated.
[3]
There was no response from the
Minister within the short time period unilaterally set by the applicants and
they immediately filed this application for leave and for judicial review.
[4]
Notwithstanding the applicants’
characterization of the Minister’s non-decision as a “deemed decision”, it is
not such in law. A deemed decision may form the basis of an application or
action; however, to be properly described as such, there must be a legislative
provision that specifically prescribes a time for making a decision, after
which it expressly provides that silence will be deemed to be a decision. An
example of such a deeming provision may be found in subsection 10(3) of the Access
to Information Act, R.S.C. 1985, c. A-1 which provides as follows:
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10. (3) Where the head of a government
institution fails to give access to a record requested under this Act or a
part thereof within the time limits set out in this Act, the head of the
institution shall, for the purposes of this Act, be deemed to have refused to
give access.
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10. (3) Le défaut de communication totale ou
partielle d’un document dans les délais prévus par la présente loi vaut
décision de refus de communication.
|
Justice
Dubé, in X v. Canada (Minister of National Defence)
(1990), 41 F.T.R. 16 (T.D.) expressed the view that deeming provisions such as
that found in subsection 10(3) of the Access to Information Act, signal
Parliament’s intent that that Act not be “frustrated by bureaucratic
procrastination: foot-dragging equates refusal.”
[5]
There is no deeming provision in
the Act relating to requests made pursuant to section 25. An applicant cannot
create a reviewable decision simply by dictating to the Minister that a failure
to respond within a unilaterally imposed time frame will be deemed a refusal
sufficient to ground an application for judicial review.
[6]
The respondents did not oppose
this application on the basis that there was no reviewable decision made;
rather they took the position that this application was moot. Their submissions
with respect to the character of the “decision” under review were tied to their
argument that “reviewing a non-decision in a factual vacuum” would involve the
Court in a speculative exercise that ought to be avoided, particularly when Charter
issues are raised.
[7]
During the hearing of this
application and through a Direction issued subsequently, the Court requested
the parties’ submissions as to whether what the applicants characterized as the
Minister’s deemed decision was subject to judicial review under section 18.1 of
the Federal Courts Act. The applicants submitted that it was; the
respondents submitted that it was not.
[8]
For the reasons that follow, I am
of the view that the non-decision of the Minister in these circumstances is not
a matter falling within section 18.1 of the Federal Courts Act and thus
this application may be dismissed on that basis. In my view, the circumstances
of this case do not warrant the exercise of the Court’s overriding authority to
amend the applicants’ notice of application in order to bring them within the
scope of s. 18.1 of the Federal Courts Act. I am further of the view
that even if the matter was justiciable under section 18.1, or the notice of
application was amended to bring the matter under section 18.1, the application
is moot and does not meet the requirements necessary to warrant a hearing on
the merits despite its mootness.
Background
[9]
Deisy Julieth Duitama Gomez, her
husband, Edison Giovanni Amortegui, and their children, Daniel Alejandro
Amortegui Duitama and Laura Sofia Amortegui Duitama, are citizens of Columbia. They
state that they fear persecution at the hands of the Revolutionary Armed Forces
of Colombia (FARC).
[10]
It is not necessary for the matters
under consideration in these Reasons to outline the applicants’ allegations
regarding the mistreatment they say they experienced in their country of
origin. I am prepared to assume, without deciding, that if the allegations of
the family are true, Mrs. Duitama Gomez has a prima facie claim for protected
person status under either section 96 or section 97 of the Act.
[11]
The applicants fled Colombia in
October 2008. The family entered the United States of America (U.S.) and
joined Mrs. Duitama Gomez’s mother in New
York where she was living after having fled
there from Colombia at an earlier date.
[12]
Rather than make a claim for asylum in the U.S., the applicants
waited three months and then, on January 21, 2009, proceeded to the Canada-U.S.
border, entered Canada, and attempted to file a claim for refugee status.
[13]
Under the Canada-U.S. Safe
Third Country Agreement (STCA), persons seeking refugee protection must
make a claim in the first country into which they arrive (U.S. or Canada). Refugee
claimants arriving from the U.S. at the Canada-U.S. land border are only
allowed to pursue refugee claims in Canada if they fall within an exception in the STCA. No
exception applied to the applicants. Accordingly, pursuant to section
101(1)(e) of the Act and the STCA the applicants were found ineligible to make
a refugee claim and an exclusion order was issued against them on January 26,
2009. As a consequence, the applicants were returned to the U.S. on that
date and the U.S., under the STCA, accepted their return. Mr.
Amortegui Duitama was detained upon return to the U.S.. The
remaining applicants sought the assistance of an immigration legal aid clinic.
[14]
What happened next is a matter of
debate between the parties. The applicants state that “no [U.S.] Application
for Asylum and for Withholding of Removal (Form I-589) was ever prepared or
filed” on behalf of the family. The applicants state that they were given a
hearing date of April 30, 2009 as part of deportation proceedings. The
respondents take the position that the family filed a claim for asylum and that
they were given an April 30, 2009 hearing date as part of that application
process. For the present purposes, it is unnecessary to resolve this dispute.
[15]
Once Mr. Amortegui Duitama was
released from detention in the U.S., the applicants entered Canada illegally
at an unknown point, and proceeded to the Citizenship and Immigration office in
Hamilton, Ontario, where on February 16, 2009 they again attempted to make an
inland refugee claim.
[16]
Pursuant to section 101(1)(c) of
the Act, the applicants were ineligible to make a claim for refugee status
because their prior claim had been determined to be ineligible because of the
STCA, and it was therefore not referred to the Refugee Protection Division.
The applicants were arrested and placed in immigration detention. The
applicants were given a PRRA application on March 2, 2009 which they submitted
on April 1, 2009.
[17]
On April 3, 2009, during an
immigration detention review hearing, the applicants were informed that their
PRRA application had been suspended. They were advised that that the PRRA had
been initiated in error and that pursuant to section 112(2)(d) of the Act they
were ineligible to apply for protection under the PRRA process because their PRRA
application was brought within six months of leaving Canada after their initial
refugee claim had been determined ineligible. Subsection 112(2)(d) of the Act provides
as follows:
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112. (2) Despite
subsection (1), a person may not apply for protection if
…
(d)
in the case of a person who has left Canada since the removal order came into force, less than six months have
passed since they left Canada after
their claim to refugee protection was determined to be ineligible, abandoned,
withdrawn or rejected, or their application for protection was rejected.
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112. (2) (2) Elle n’est pas admise à
demander la protection dans les cas suivants:
…
(d) dans le cas contraire, six mois ne se
sont pas écoulés depuis son départ consécutif soit au rejet de sa demande
d’asile ou de protection, soit à un prononcé d’irrecevabilité, de désistement
ou de retrait de sa demande d’asile.
|
No
judicial review application was brought with respect to the April 3, 2009
decision to suspend the PRRA that was given to the applicants.
[18]
On April 6, 2009, the applicants
were given notice that they would be removed to Bogota, Colombia, on April 9,
2009. This resulted in the letter of April 7, 2009 from counsel for the
applicants to the Minister requesting a section 25 exemption from subsections
101(1)(c), 101(1)(e) and 112(2)(d) of the Act.
[19]
The applicants submitted that their
removal to Colombia, without an assessment of the risk they faced, would
violate the principle of non-refoulement. As noted earlier, they stated
that if they did not receive a response by 3 p.m. that same day they would
consider the Minister’s silence “a deemed refusal” and would initiate an
application for judicial review immediately. The applicants did not receive a
response and so they immediately commenced this application for judicial
review. They also brought a motion to stay the scheduled removal to Colombia based
on the pending judicial review application of this alleged decision. This stay
motion was adjourned when the respondents agreed to cancel the scheduled
removal.
[20]
On July 27, 2009, six months after
the applicants had first been removed from Canada, the respondents notified
the applicants that they could initiate a PRRA application. Presumably this
action was taken because the bar to a PRRA application in subsection 112(2)(d)
of the Act had expired through the passage of time. The applicants filed their
PRRA application and made submissions before the due date of August 26, 2009, in
which they provided notice that further evidence was to follow.
[21]
On October 7, 2009 a negative PRRA
decision was rendered before the applicants had filed their additional evidence.
This evidence included a letter from Amnesty International and a psychological
assessment of Mrs. Duitama Gomez. The negative decision was provided to the
applicants on November 3, 2009. The applicants sought leave to judicially
review this decision (Court File No. IMM-5799-09). The Court records indicate
that Justice Mactavish granted leave on April 14, 2010 and that the application
is scheduled to be heard on July 13, 2010.
[22]
The applicants state that they
have learned that subsequent to their February 16, 2009 entry into Canada, the
government of the U.S. was contacted by the Canadian government with a request
to accept the return of the applicants to the U.S. Apparently, the U.S. took the
position that neither the STCA or the Reciprocal Arrangement applied and it
refused this request. The U.S. government then took steps to terminate the applicants’
immigration proceedings in the U.S. The consequence of these steps is not clear to the Court
but it appears that the applicants cannot be returned to the U.S. and, if
removed from Canada, they can only be returned to Colombia.
Issues
[23]
The parties have raised a number
of issues in their memoranda and further memoranda. In my view, the real issues
in dispute are the following:
1.
Whether the non-decision of the
Minister is justiciable pursuant to section 18.1 of the Federal Courts Act;
2.
Whether the Court should exercise
its inherent jurisdiction to permit the amendment of the notice of application
so as to properly bring it within the scope of s. 18.1 of the Federal Courts
Act;
3.
Whether the application for
judicial review is moot regardless of the answer to issues 1 and 2;
4.
If the application is moot, should
the Court nevertheless exercise its discretion to hear the case on its merits;
and
5.
If the Court exercises its
discretion to hear the application, is subsection 101(1)(c) of the Act, in the
applicants’ circumstances, of no force or effect because it would permit the refoulement
of the applicants to their country of origin without a risk assessment and
therefore be inconsistent with section 115 of the Act, Canada’s international
human rights obligations, and section 7 of the Charter of Rights and
Freedoms.
[24]
When this application came on for
hearing the parties were informed that the Court would address the last issue at
a later date and then only if it was determined that the application was not
moot or, if moot, the Court determined that it would exercise its discretion to
hear the application on its merits. As previously noted, subsequent to the
hearing the parties were canvassed and provided submissions on the first issue.
Analysis
1. Is
this application justiciable?
[25]
The jurisdiction of the Federal
Court on a judicial review application is circumscribed by section 18.1 of the Federal
Courts Act which is reproduced in Annex A to these Reasons.
[26]
The applicants submit that the
application as constituted falls within this Court’s jurisdiction for the
following six reasons which are taken from their Further Submissions:
(i)
“[T]his court has taken
jurisdiction in numerous cases of requests to defer removal whereby a deadline
is set, not met and a deemed refusal has taken place and that deemed refusal is
the subject matter of the judicial review.” The applicants cite Wang v.
Canada (Minister of Citizenship and Immigration), 2001 FCT 148 and Simoes
v. Canada (Minister of Citizenship and Immigration) (2000), 187 F.T.R. 219 in support of this submission.
(ii)
“[T]he fact that CBSA cancelled
the Applicants’ removal indicates that there is a proper decision under
review.”
(iii)
“[T]he wording of s. 72(1) [of the
Act] is very broad and contemplates the issues raised.”
(iv)
The deemed refusal of the Minister
is a “decision, order, act or proceeding” within the meaning of section 18.1 of
the Federal Courts Act. The applicants rely on this Court’s decision in
Markevich v. Canada, [1999] 3 F.C. 28 (T.D.).
(v)
“The administrative action
undertaken by the Minister is reviewable as it affects the rights and interests
of the Applicants. Furthermore, as the Applicants’ only recourse in the face
of the deemed refusal is judicial review, and given the issues at stake it is
submitted that, as in Markevich, it would be a serious gap in this
Court’s supervisory jurisdiction if it did not entertain this judicial review.”
(vi)
In the alternative, …[section
18.1(5)(b) of the Federal Courts Act gives the Court] the authority and
jurisdiction to repair any perceived defect in the decision by declaring the
Respondent’s alleged “non-decision” as a decision, bringing it within the ambit
of a deemed refusal.” The applicants cite and rely upon this Court’s decision
in Gallardo v. Canada (Minister of Citizenship and Immigration), 2006 FC 1331 and Tathgur v. Canada
(Minister of Citizenship and Immigration), 2007 FC 1293.
[27]
I find none of these submissions
to be persuasive.
[28]
With respect to the applicants’
first submission, neither Wang nor Simoes involved a deemed
refusal as the basis of the judicial review application. The decisions under
review in Wang and Simoes were decisions of immigration officers
denying requests to defer removal from Canada: See Wang at para. 2 and 3 and Simoes
at para 5 and 6. Those applications were not founded on a deemed refusal – in
each case there was an actual refusal and in each case that refusal constituted
the decision under review. Further, and I question the accuracy of their assertion,
even if “this court has taken jurisdiction in numerous cases of requests to
defer removal whereby a deadline is set, not met and a deemed refusal has taken
place" a previous decision made without jurisdiction cannot constitute a
legal basis for continuing that error.
[29]
With respect to the applicants’
second submission, it is true that the respondents cancelled the applicants’
removal but all that proves is that there was a decision made to remove them;
the cancellation had nothing to do with the Minister’s deemed refusal of their
request for a risk assessment.
[30]
With respect to the applicants’
third submission, although subsection 72(1) of the Act provides that “judicial
review by the Federal Court with respect to any matter – a decision,
determination or order made, a measure taken or a question raised – under the
Act is commenced by making an application for leave to the Court” that
provision does not give the Court jurisdiction; it merely provides that an
applicant must first obtain leave from this Court if the matter falls under
subsection 72(1) if the Act. Further, the Minister’s non-decision is not a
“decision, determination or order made, [or] a measure taken.” It may be that
the applicants have raised a question under the Act, but all that this
subsection provides is that they must first obtain leave; it does not
independently establish that this Court has jurisdiction over the subject matter
of the leave or that the application for leave is properly framed.
[31]
With respect to the applicants’
fourth submission, the decision in Markevich does not assist the
applicants in the application as they have framed it. In Markevich
Justice Evans, as he then was, held that section 18.1(3) of the Federal
Courts Act gives this Court jurisdiction to review a “decision, order, act
or proceeding of a federal board, commission or other tribunal” and that this
jurisdiction did not require that there be a decision or order to effect review,
an act or proceeding was sufficient.
[32]
The applicant in Markevich had
been sent a letter by Revenue Canada advising him that he owed an amount in
unpaid taxes that had previously been written off by Revenue Canada as
uncollectible. Justice Evans held that although the letter was not written in
the exercise of a statutory power, it nevertheless signified that an official
of Revenue Canada had determined to try to collect the outstanding
sums. Accordingly, he found that the letter constituted an administrative
action by a person having statutory powers and it therefore constituted an “act
or proceeding” and was reviewable.
[33]
In this case, the Minister was taking steps to proceed with the
applicants’ removal despite their request for an exemption. That action might suggest
that a decision was made with respect to the exemption request but only if the
action to remove followed the exemption request; it did not.
[34]
It could be said that taking steps to proceed with the applicants’
removal constitutes either an act or a proceeding which could ground an
application under section 18.1 of the Federal Courts Act. However, the
application as framed does not directly challenge their removal; rather, it
challenges the Minister’s “decision” not to accede to the applicants’ request
for an exemption from the provisions of the Act. At best, this may be a
relevant consideration if the Court were to exercise its discretion to amend
the application, but it does not make the application, as currently drafted,
justiciable.
[35]
With respect to the applicants’
fifth submission, while I agree with the applicants that there must be some
avenue they can take to get their issue before the Court, I do not agree with
them that the avenue they have selected is the only one or even that it is the
preferred one. I share the view of the respondents that the applicants “could
have properly brought an application for mandamus.” The applicants
could also have sought judicial review of the decision to rescind their PRRA
when they were informed of this decision on April 3, 2009. Either would have
been a proper avenue to get this matter before the Court. Once filed, the
applicants could also have sought a stay of removal pending the final
determination of that application.
[36]
Normally a mandamus
application is launched because the delay has been significant: See for
example the decision of this Court in Shahid v. Canada
(Minister of Immigration), 2010 FC
405 in which the applicants’ permanent resident application had not yet been
processed after nearly nine years. As set out by the Court of Appeal in Apotex
Inc. v. Canada (Attorney General), [1994] 1 F.C. 742 (C.A.) one of the
tests for the granting of mandamus is that there has been a prior demand
for performance of the duty and a “reasonable time to comply” has passed,
unless there has been a direct refusal to act. However, a short delay in
performing the duty may be sufficient to ground mandamus in
circumstances where requiring a longer time for reply would be inappropriate as
it would effectively remove from the applicant the right he is seeking. Such a
circumstance, in my view, would be the situation faced by the applicants.
[37]
With respect to the applicants’
sixth submission, section 18.1(5)(b) of the Federal Courts Act does not
give the Court the authority or jurisdiction to declare the Minister’s
non-decision to be a decision in order to regularize this proceeding. The
purpose of this provision is to allow the Court to save an application that is
technically irregular: See, as examples, Bastanfar v. Canada
(Minister of Citizenship and Immigration) (1996), 35 Imm. L.R. (2d) 29 (F.C.T.D.) and Canadian Cable Television
Association v. American College Sports Collective of Canada Inc., [1991] 3 F.C. 626 (C.A.). The defect here goes far
beyond a mere technicality.
2. Whether
the Court should permit the amendment of the application?
[38]
Even if I have the jurisdiction to
reframe this application into an application for mandamus or otherwise
bring it within the scope of section 18.1 of the Federal Courts Act, I
would not do so because it would serve no purpose for these applicants. For
the reasons that follow I am of the view that this application is moot. Even
if the Minister was ordered at this time to consider the applicants’ request
for an exemption, the reality is that they have already had the benefit of a
PRRA, which was effectively what was sought by them in the letter that was
directed to the Minister on April 7, 2009.
3. Is this application moot?
[39]
The applicants submit that their
application is not moot because a live controversy still exists between the
parties. They submit that the PRRA decision that was rendered is fundamentally
flawed, was interfered with by the Department of Justice, and was made by a biased
decision-maker.
[40]
The respondents submit that this
application is moot because the applicants have been given the very remedy that
they sought on this judicial review – a PRRA assessment.
[41]
An assessment of whether an
underlying application is moot involves a two-step analysis as outlined by the
Supreme Court in Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342 at 353:
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.
[42]
The first part of the test has
been coined the “live controversy” step: Borowski, supra at 354.
The Court of Appeal in Baron v. Canada (Minister of Public Safety and Emergency
Preparedness), 2009 FCA 81 at paras.
26-38 explained that when looking at the first step of the test it is necessary
to properly characterize the issue in dispute. Proper characterization
requires that one ask what the parties were seeking in their initial request to
the Minister.
[43]
The applicants’ initial request
was for a humanitarian and compassionate exemption from the provisions of the
Act that deemed them ineligible to claim refugee status or to make a PRRA
application. The essence of their request was access to a risk assessment,
either before the RPD or a PRRA Officer, prior to being removed to Columbia.
[44]
The applicants have now submitted
their PRRA application and a decision has been rendered on that application.
Leave to judicially review that decision has been granted and a date set for
the hearing on the merits (Court File No. IMM-5799-09). I agree with the
respondents that this fully settles the live controversy between the parties,
thereby rendering the application moot.
[45]
In Baron, supra at
para. 37, the Court of Appeal explained that it is not necessarily the passing
of an event that renders an application moot; it is whether the passing of the
event has nullified the practical effect of any potentially positive judicial
review decision. In this case, the applicants sought an order requiring the Minister
to re-determine his “decision” which, if it was positive, would permit the
applicants to make a PRRA application. In the words of the respondents, “the
applicants have obtained the very relief they have been seeking throughout the
present litigation.” When the respondents offered the applicants the
opportunity to file a PRRA application and a decision was rendered on that
application, the live controversy ceased to exist. This application for
judicial review is therefore moot.
4. Should the Court exercise its discretion to
hear the application on its merits?
[46]
The applicants submit that this
Court should exercise its discretion to hear the moot application because the
factors for exercising that discretion have been met. They claim that an
adversarial relationship still exists because they still dispute the
reasonableness of the deemed refusal to re-instate their first PRRA
application. The applicants contend that the expenditure of judicial resources
is warranted because the situation faced by the applicants continues to occur
and has thus far evaded review by this Court. The applicants submit that a decision
on the merits would not overstep the Court’s proper adjudicative role and would
be of assistance to immigration officials and persons in circumstances similar
to the applicants.
[47]
The respondents submit that there
is no continuing adversarial relationship between the parties, that this case
does not raise issues of public importance that are evasive of judicial review,
and that there is no social cost to not hearing the application on its merits.
They further submit that the presence of the Charter argument militates
against hearing this case on its merits, given that it is moot.
[48]
As a preliminary matter, the
respondents object to the applicants’ further affidavit evidence. This
objection would have been dealt with in a more fulsome manner if the application
had been heard on its merits. They submit that these affidavits contain
opinion and belief statements, rather than statements based on personal
knowledge, legal argument, hearsay statements, and lack relevance.
[49]
In Rex v. Nat Bell Liquors
Limited, [1922] 2 A.C. 128 (P.C.), which was discussed by the Court of
Appeal in Gitxsan Treaty Society v. Hospital Employees'
Union, [2000] 1 F.C. 135
(C.A.), the Privy Council held that new evidence was permissible on
judicial review where it went to the jurisdiction of the decision-maker to make
the decision and not to the merits of the decision itself.
[50]
In this case, the further
affidavits do not go to the merits of the decision, they go to the question of
mootness and more particularly to the question of whether this Court should
exercise its discretion to hear an otherwise moot matter on its merits.
Accordingly, they may be considered for that limited purpose. Nonetheless, I
agree with the respondents that aspects of these further affidavits violate the
rules of evidence. To the extent that these affidavits are hearsay, or
statements of opinion and belief, and not statements based on personal
knowledge, they are not proper.
[51]
In Borowski the Supreme
Court laid out three factors that this Court is to consider when determining
whether to exercise its discretion to hear an application that is moot: (1)
the existence of an adversarial context, (2) the concern for judicial economy,
and (3) the proper role of the court in relation to the legislative sphere. The
Supreme Court instructed that these are factors to consider but not an airtight
legal test. Accordingly, judges ought to exercise their discretion judicially
and “with due regard for established principles” that underscore the outlined factors.
[52]
Despite the submissions of the
applicants, I am not convinced that an adversarial relationship continues to exist
between the parties. The applicants no longer have a stake in the outcome of
this application. The order that they sought was the re-instatement of their
PRRA; this has occurred and a decision has been rendered. There are no
collateral consequences to this application that will affect the applicants in a
manner that is not academic. The persons most interested in the hearing of
this application on its merits are potential claimants who face the same
ineligibility scenario as the applicants faced in this case; that is not
sufficient to sustain the adversarial context. The lack of an ongoing
adversarial context militates against hearing this application on its merits.
[53]
In Borowski at 361, the
Supreme Court stated that in considering the second factor, “the economics of
judicial involvement are weighed against the social cost of continued
uncertainty in the law.” The applicants assert that the social cost is the
potential violation of the principle of non-refoulement, and the impact
this violation has on the people unlawfully returned to their place of origin
as well as on Canada’s requirement of meeting its international human
rights obligations. While correct, the Court must engage in the balancing
exercise dictated by the Supreme Court.
[54]
One might argue, with some merit,
that the return of even one person contrary to the principle of non-refoulement
and the potential risk to that person is sufficient to warrant the Court’s
intervention. In situations where a person cannot be returned to a safe third
country, “removal from Canada to the home country without the benefit of a risk
assessment … opens the door to the possibility of Canada indirectly running
afoul of its international obligations”: Canada (Citizenship &
Immigration) v. Zeng, 2010 FCA 118 at para. 21. However, in my view, the Court
must consider both the circumstances in which that possibility arises and the
frequency of occurrence.
[55]
The circumstances before the Court arise because
of an extremely unusual fact situation. All of the following must occur:
1. The claimant must have traveled from his
country of origin to a safe third country. A safe third country is a
country that has been deemed to be safe pursuant to the Regulations on the
basis that individuals can seek and receive appropriate refugee protection in
that country. Subsection 102(2) of the Act sets out the criteria for Canada
designating a country as a safe third country. The U.S. has been so
designated.
2. The
claimant, having failed to make a refugee claim in the U.S., must cross over
the border into Canada and attempt to make a refugee claim in Canada.
3. Pursuant
to the STCA and the Reciprocal Agreement between Canada and the U.S., the claim
is ineligible to be referred to the Refugee Protection Division and the
claimant is returned to the U.S. where, if he has not already done so, he may
make a refugee claim.
4. The
claimant must once again cross the border into Canada and seek to make an
application for a PRRA within a period that is less than six months since the
date he was first removed from Canada to the U.S.
5. The U.S.
authorities must then refuse the claimant re-entry to the U.S.
[56]
It is only if all of those circumstances
have been met that it is possible that the claimant may be removed from Canada to his
country of origin without an assessment of risk having been performed.
[57]
It is reasonable to expect that
the vast majority of persons needing protection will make an application at
their earliest opportunity and in the first country they enter. In this case,
the applicants had family in the U.S.. Ms. Duitama Gomez’ mother and uncle left Colombia
and travelled to the U.S. on a visa in 1997. Since then her mother has lived
in New York continuously except for having travelled occasionally to Colombia to see
her children. The applicants fled Colombia in October 2008 and travelled to New York to the
home of Ms. Duitama Gomez’ mother. They did not enter Canada until
more than three months had passed. In an affidavit filed in Court File No. IMM-5799-09
Ms. Duitama Gomez says that during this period the applicants received medical
treatment and rested.
[58]
The explanation offered as to why
the applicants did not choose to remain in the U.S. is best set out in Ms.
Duitama Gomez’ affidavit filed in support of the judicial review application in
Court File No. IMM-5799-09 wherein she states that “we came to the Canadian
border to make a refugee claim as my husband’s godfather lived here and he
encouraged us to seek protection here.” In this application she swore an
affidavit in which she says that “although my mother was in the U.S., I wanted
to put as much distance between us and Colombia.”
[59]
The explanation as to why these
applicants failed to seek protection in the U.S. after their return, but rather
again travelled to Canada, is poorly explained in the record. Ms. Duitama
Gomez in her affidavit filed in this application says that after Canada turned
them away in January and they were returned to the U.S., her husband was
arrested and detained and “now we were really terrified that we would be
deported to Colombia [and] we felt there could only be safety for us in Canada.”
[60]
The U.S. has a refugee protection
system comparable to that in Canada and it is therefore reasonable to expect that the
majority of claimants who fear persecution in their country of origin who are
returned to the U.S. under the provisions of the STCA are likely to make their
claim for protection there and not to return again to Canada.
[61]
This expectation is supported by
the fact that the record reveals only two other cases in the previous four
years where claimants have re-entered Canada after being removed under the
STCA. They are set out in an affidavit of Gloria Nafziger, Refugee Coordinator
of Amnesty International Canada.
[62]
The first involved Mr. JZG and his
family. They fled Colombia and arrived in the U.S. on June 1, 2006. Shortly
after their arrival they approached the Canadian embassy in New York City
seeking travel visas to enter Canada; they were refused. Nonetheless, they sought refugee
protection at the Canadian border. Like these applicants they were found
ineligible due to the STCA and subsection 101(1)(e) of the Act. They were
issued removal orders and returned to the U.S. They entered Canada clandestinely around July 26, 2006 and made a refugee
claim at a CIC office on August 3, 2006. On August 17, 2006 they were informed
that they were not eligible to make a refugee claim or to make a PRRA
application. They requested an opportunity to file a PRRA application. They
subsequently filed submissions in support of a PRRA and in June 2009 received a
positive PRRA.
[63]
The second involved the Torres
family from Colombia. They travelled to New York City on September 14,
2009 and on September 19, 2009 attempted to enter Canada and make
a refugee claim. They were ineligible to do so and were returned to the U.S. the next
day. They illegally re-entered Canada on October 16, 2009 and on October 20,
2009 attempted to make a refugee claim at London, Ontario. They were found to be ineligible and a deportation
order issued which was to be carried out on November 21, 2009. A motion for a stay
their removal was filed (Court File No. IMM-5356-09). Prior to the motion
being heard, the removal order was cancelled. The Minister, pursuant to
section 25 of the Act, permitted the claimants to file a PRRA application.
[64]
Accordingly, including the present
matter, there is evidence before the Court of three situations where, as a
result of the conduct of the applicants in re-entering Canada after removal
rather than seeking protection in the U.S., the applicants have been exposed to the possibility
of refoulement. There is no evidence before the Court that any person
who requested a risk assessment has ever been removed from Canada without
having a risk assessment.
[65]
The conduct of an individual can
provide no justification or support for a nation breaching the non-refoulement
principle; however, it must be noted that the situation that creates the
possibility of refoulement is one where the applicants have twice entered
Canada within a six month period rather than seek protection in the U.S.
[66]
It is relevant when considering
whether to hear this application on its merits to consider that there is no
evidence that any person has been refouled in the circumstances
applicable to these applicants.
[67]
There is a judicial cost to
hearing this case on its merits. There is also arguably such a cost to not
hearing the application on its merits; not in relation to this matter but in
relation to possible similar situations in the future. There has been and may
continue to be judicial resources occupied by the Court on the adjudication of
stay motions and deferral of removal requests that arise from situations having
the unique circumstances at hand. It is submitted that continuing that
uncertainty may mean this particular issue will continue to occur, and will
continue to require judicial resources.
[68]
It is also submitted that these
issues will continue to evade judicial review. It is suggested by the
applicants that once foreign nationals in similar circumstances obtain counsel
and raise the spectre of judicial review on this issue, the immigration
authorities become forthcoming with the availability of a PRRA application. It
is submitted that this alleged evasion, whether deliberate or not, supports the
use of scarce judicial resources in hearing the application on its merits.
[69]
On balance, I find that concerns
for judicial economy tip the balance in favour of not hearing this application
on its merits as the number of similar cases is so few. Accordingly, the
future resources required of the Court if no direction is provided as has been
sought is not likely to be great.
[70]
The third factor to consider is
concerned with how “pronouncing judgments in the absence of a dispute affecting
the rights of the parties may be viewed” by the public, particularly if such
pronouncements are “viewed as intruding into the role of the legislative branch:”
Borowski, at 362.
[71]
The respondents submit that the
discretionary nature of the “decision” favours not hearing the case on the
merits, and further point out that there was no “decision per se but
only a deemed refusal.” The respondents say that if the Court were to hear this
application it “would be reviewing a non-decision in a factual vacuum.” They
rely on Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mine
Tragedy), [1995] 2 S.C.R. 97 for the proposition that courts should not
decide legal issues, especially constitutional issues, if they are not
necessary for the resolution of a case.
[72]
The respondents’ first submission
is without merit. This Court hears judicial review applications of
discretionary decisions, including highly discretionary decisions of senior
members of government, on a regular basis.
[73]
The underlying issue in this case
is whether the application of the impugned provisions, in the circumstances of
this case, violates the principle of non-refoulement. As important as
that question is, I share the respondents’ concern about the appropriateness of
determining Charter arguments in this case. There are sound policy
reasons for exercising prudence in determining Charter issues in applications
where doing so is unnecessary. Despite the able submissions of counsel for the
applicants, I am not convinced that the current situation is one where the Charter
question should be addressed in the absence of a live and continuing dispute
between these parties.
[74]
When the three factors are
considered together, I am of the opinion that they weigh in favour of this
Court not exercising its discretion to hear this application on its merits.
5. Conclusion
[75]
This application is dismissed. A formal
judgment shall issue once the parties have been canvassed, as provided for in
Rule 18(1) of the Federal Courts Immigration and Refugee Protection Rules,
as to whether they wish to request that a serious question of general
importance should be certified. Accordingly, I direct that within seven days
of the issuance of these Reasons, the parties may serve and file any proposed
question for certification, together with any representations thereon. Following
receipt, the Court shall consider these submissions and then issue formal
judgment.
“Russel W. Zinn”
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