Date: 20090505
Docket: IMM-1209-08
Citation: 2009 FC 456
Ottawa, Ontario, May 5, 2009
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
JOSE AGOSTINHO FERREIRA DE
AGUIAR
& MARIA NOEMI DE AGUIAR
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
In March 2008, an immigration enforcement
officer refused to defer the applicants’ removal from Canada. The applicants filed an application for leave and judicial review
of the officer’s decision and asked me to stay their removal until that
application had been decided. I granted their request, granted leave on the application
for judicial review and ultimately heard the applicants’ arguments on the
merits.
[2]
The Minister’s main argument is that this matter
is now moot. At the time the applicants requested a deferral of their removal,
their application for humanitarian and compassionate relief (H&C) was
outstanding. They asked the officer to postpone their removal until their
H&C application had been decided. Since then, the applicants’ H&C has
been turned down (on July 11, 2008). So, the respondent submits that the
question whether the officer should have deferred the applicants’ removal
pending a decision on their H&C is no longer a live issue. I agree. Therefore,
I must dismiss this application for judicial review.
I. Factual
Background
[3]
The applicants arrived in Canada from Portugal in 1986. They filed a refugee claim, but abandoned it and returned
to Portugal. They returned to Canada in 1999 as visitors. They filed for
an H&C and were turned down in 2003. They left Canada briefly but returned and made another refugee claim, which was
dismissed in 2004. They filed a second H&C and an application for a
pre-removal risk assessment (PRRA) in 2005. The PRRA was dismissed in 2006. The
applicants were scheduled for removal in December 2007 but removal was deferred
to March 21, 2008. The applicants then requested another deferral based on the
outstanding H&C. The deferral was denied. It is this last decision that is
the subject of this application for judicial review. The second H&C was
dismissed on July 11, 2008.
II. Is this
case moot?
[4]
In March 2008, I stayed the applicants’ removal
from Canada pending the
disposition of their application for leave and for judicial review. In the
interim, the applicants’ H&C application was dismissed. Accordingly, the
effect of the stay was to accord the applicants the relief that they had
requested from the officer – deferral of their removal until disposition of their
H&C application.
[5]
In these circumstances, the Minister urges me to
conclude that this application for judicial review is moot because the
applicants have already achieved a deferral of their removal beyond the date on
which their H&C was decided, even though the officer had denied them one. Further,
there is no point, the Minister suggests, in deciding whether the officer’s
decision was reasonable since any conclusion I would arrive at would have no
practical effect. The applicants will be re-scheduled for removal no matter
what I decide.
[6]
I agree.
[7]
The question of mootness must begin with a
characterization of the controversy between the parties: Baron v. Canada (Public Safety and Emergency
Preparedness), 2009 FCA 81. Here, on March 11,
2008, the applicants asked for a deferral of their removal to allow them “an
opportunity to remain pending the outcome of [their] H&C Application”. They
attached a variety of materials to their request outlining the medical and
psychological needs of their Canadian niece and her 12-year-old son. This
evidence was relevant to their H&C application.
[8]
As the applicants themselves characterized it,
the issue before the enforcement officer was whether their removal should be
deferred pending the outcome of their H&C. Since the H&C has now been
decided, there is no longer a live controversy between the parties (see Baron,
above at para. 31, citing Amsterdam v. Canada (Minister of Citizenship and Immigration) 2008 FC 244).
[9]
The applicants argue that, even if I were to
find that their application was moot, I should exercise my discretion to decide
the case on its merits in order to give guidance to enforcement officers on the
exercise of their discretion to defer removal. In my view, Justice Marc Nadon of
the Federal Court of Appeal has already provided a great deal of guidance on
this question in Baron, above, and there is no need for me to say
anything more.
[10]
In any case, even if I had concluded that this
case should be decided on its merits, I would have found that the officer’s
decision was not unreasonable. She carefully reviewed all of the material
provided by the applicants, including the information relating to their niece
and her son. I cannot find any basis on which that decision could be
overturned.
[11]
Accordingly, I must dismiss this application for
judicial review. The applicants proposed a question for certification along the
lines of the question addressed by the Federal Court of Appeal in Baron,
above. Given the Court’s recent answer to that question, I need not certify
another one.
JUDGMENT
THIS COURT’S JUDGMENT IS
that
1. The
application for judicial review is dismissed.
2. No question
of general importance arises.
“James
W. O’Reilly”
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