Date: 20090624
Docket: IMM-4861-08
Citation: 2009 FC 662
Toronto, Ontario,
June 24, 2009
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
TIGIST DAMTE
Applicant
and
THE MINISTER OF PUBLIC SAFETY AND
EMERGENCY PREPAREDNESS
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
For
the reasons that follow I am of the view that this application is moot and it
is dismissed.
[2]
On
November 2, 2008 an Enforcement Officer of Canada Border Services Agency
refused to grant an administrative stay of the Applicant’s removal from Canada, scheduled for November
18, 2008 pending a decision on her second Pre-Removal Risk Assessment (PRRA)
application. A judicial stay of the scheduled removal pending the decision on
this application was granted by Justice Lemieux: Damte v. Canada (Minister of Public
Safety and Emergency Preparedness), 2008 FC 1277.
[3]
Ms.
Tigist Damte is an Ethiopian national and failed refugee claimant. Her history
with Canadian immigration authorities is set out in full in Justice Lemieux’s
decision. For present purposes, a brief summary will suffice.
[4]
In
2006, Ms. Damte’s claim that she was arrested and detained in 1998 by Ethiopian
authorities on account of her membership in the Ethiopian Peoples Revolutionary
Party was dismissed for lack of credibility by the Refugee Protection Division
of the Immigration and Refugee Board (RPD). It also rejected her claim to be a
refugee sur place, on account of her participation in Canadian and
American protests against the current regime in Ethiopia, on the basis that Ethiopian
authorities would not be aware of her attendance at North American
demonstrations. Leave to seek judicial review of the RPD decision was denied.
[5]
Within
a year of the RPD hearing, it was reported in the press that the Ethiopian
regime was spying on opposition supporters abroad, in particular by
video-taping anti-government demonstrations and listing participants. However,
this evidence was not included in Ms. Damte’s submissions in support of her
first PRRA in March of 2007, notwithstanding its availability. The first PRRA
officer found that Ms. Damte’s removal would not subject her to risks of
persecution on Convention grounds, or of cruel and unusual treatment or
punishment or death. On October 8, 2008, that determination was upheld as
reasonable on judicial review, in light of the evidence that was before the
officer which, as noted, did not include the reports of Ethiopian authorities
tracking government opponents abroad.
[6]
Ms.
Damte was subsequently ordered deported in February 2008, but her removal was
judicially stayed by Justice Gibson in an Order dated February 11, 2008 (Court
file IMM-549-08) pending the disposition of her application for leave and for
judicial review. As a result, the enforcement order lapsed.
[7]
Ms.
Damte filed a second PRRA application in March of 2008, which was supported by
the evidence regarding Ethiopian surveillance of anti-government demonstrators
in foreign countries.
[8]
In
October of 2008, while the second PRRA application was outstanding, Ms. Damte
was again ordered deported. She requested an administrative stay of her removal
pending the outcome of the second PRRA, noting the “new” evidence relating to
surveillance and emphasizing that it had not yet been considered by anyone
other than Justice Gibson, who had considered it sufficient to establish the
irreparable harm component of the test for granting a stay. On November 3,
2008, the Enforcement Officer declined to authorize the requested administrative
stay, noting the following considerations:
The new evidence in question was not
included in her first PRRA claim made in March 2007. According to counsel, the
evidence was available for submission in June 2006. This evidence was never
submitted in error of counsel on the initial PRRA. The evidence was available
to submit in March 2007. Failure to do so cannot result in a deferral of
removal.
The evidence, which was submitted as proof
of irreparable harm for previously filed litigation was dismissed on 08 October
2008.
[9]
In the
result, the administrative stay was refused by the Enforcement Officer who
noted that a second PRRA does not require that a valid removal be stayed, and
concluded that he had an obligation under the Immigration and Refugee
Protection Act to oversee the removal of Ms. Damte as soon as reasonably
practicable.
[10]
When
the deferral was refused, Ms. Damte sought and obtained a stay from Justice
Lemieux pending the determination of the within application for judicial
review. In his Order, Justice Lemieux raised the possibility that the
Enforcement Officer had erred in refusing to consider the new evidence tendered
by Ms. Damte, and found that the Officer erred in concluding that the new
evidence had been considered in the Court’s Order of October 8, 2008.
[11]
On
June 9, 2009 the Applicant’s second PRRA was refused. Additionally, the same
officer denied her H&C application on June 10, 2009. Regrettably neither
was transmitted to the Applicant or her counsel until the day before this hearing
was scheduled. Given the importance of such decisions, especially when made a
few days prior to a hearing before this Court, the Respondent should urgently
take steps to ensure that such decisions are immediately transmitted to the
applicants and their counsel. Failure to do so puts counsel at a disadvantage
and may result in a postponement of a scheduled hearing.
[12]
At the
hearing scheduled in this application, counsel for the Respondent submitted
that the judicial review application was moot as the second PRRA decision had
been made, and that the Court ought not to hear the matter.
[13]
The
Respondent relies on the decision of the Federal Court of Appeal in Baron v.
Canada (Minister of Public
Safety and Emergency Preparedness), 2009 FCA 81. In that case, the Court of Appeal
indicated that a determination as to whether a live issue exists between
parties is dependant upon the proper characterization of the controversy
between them. Baron involved a review of a refusal to defer removal
pending an H&C application where the H&C determination had not been
made at the time the matter came before the Court, but the removal date had
passed as a stay had been granted. The Court stated that the proper
characterization of the controversy was whether the Applicant should be removed
prior to the happening of a particular event, in that instance prior to the
determination of the H&C application. As the H&C application had not
yet been determined, the Court held that the controversy remained a live one.
[14]
In
this instance, the correct characterization of the controversy between these
parties is whether the Applicant should be removed prior to the decision on her
second PRRA. That decision has now been made and the parties agree that on the
basis of Baron, the controversy between them is moot.
[15]
The
Applicant submits that while there is no longer a live controversy between the
parties, there remains an adversarial relationship between them and that the
Court should exercise its discretion to hear the merits of the application,
notwithstanding the mootness of the issue in the application. In Borowski
v. Canada (Attorney General), [1989] 1 S.C.R. 342 the Supreme Court held
that when deciding whether to exercise discretion to hear a matter,
notwithstanding that it is moot, the judge should consider three factors: (1)
the existence of an adversarial relationship between the parties; (2) the
concern for judicial economy; and (3) the need for the Court not to intrude
into the legislative sphere.
[16]
In the
present matter, the Applicant submits that there remains an adversarial
relationship between the parties. I am not convinced. The Applicant may well
disagree with the decisions on the second PRRA and the H&C application and
has the option to seek leave to review those decisions. That has not yet
occurred. Until she does, it cannot be said that there is any lis
between the parties except for this application, which is moot. The Applicant
submits that the issue giving rise to the adversarial relationship is not
whether the removal should have been deferred but whether the officer, in
making the decision not to defer removal, ought to have considered the new
evidence of video surveillance. I do not accept that as framed, that question
remains “live” in any meaningful sense of the word, as the officer in deciding
the second PRRA did consider the new evidence.
[17]
I am
satisfied that there is no judicial economy to be served by considering the
application on the merits. The Applicant submits that the Court’s decision on
the merits will provide guidance to other enforcement officers faced with a
request for an administrative stay where there is evidence submitted that was
previously available but not considered and thus the decision in this matter
may reduce the number of other proceedings filed with this Court. First, such
situations arise rarely. Second, I agree with the Respondent that an officer’s
decision as to whether to consider “new” evidence is very fact specific and is
dependent on the reasons why the evidence was not previously submitted.
Accordingly, the Court’s guidance, if any, from deciding this matter will be of
little value to other parties.
[18]
A
decision on the merits will clearly not intrude into the legislative scheme.
The Respondent submitted that any decision in this application may impact on a
potential judicial review of the second PRRA decision. I fail to see that
connection as the decisions underlying them are distinct and discrete.
[19]
Weighing
the relevant factors, I come to the view that I ought not to exercise my discretion
to hear the application on its merits. A decision on the merits can have no
impact on these or other potential parties.
[20]
The
Applicant proposed that the Court certify a question which I phrase as
follows: Is there any impediment to an Enforcement Officer, when considering a
deferral request, to consider evidence that was not before the PRRA officer but
which could have been had it been submitted at the earliest opportunity?
[21]
In
order to be certifiable, the question must be a serious question of general
importance which would be dispositive of an appeal. As the only issued
determined herein is whether I ought to exercise my discretion to hear the
application, notwithstanding that the lis is moot, the question as
proposed could not be dispositive of an appeal. No question will be certified.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that the application for judicial review
is dismissed on the ground that it is moot and no question is certified.
“Russel W. Zinn”
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