Docket: IMM-7972-11
Citation: 2011 FC 1527
Ottawa, Ontario,
December 28, 2011
PRESENT: The
Honourable Mr. Justice Zinn
BETWEEN:
|
|
KEMEL
HAZIME
|
|
|
|
Applicant
|
|
and
|
|
|
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION AND THE MINISTER OF PUBLIC SAFETY AND
EMERGENCY PREPAREDNESS
|
|
|
|
Respondents
|
|
|
|
|
REASONS FOR JUDGMENT AND JUDGMENT
[1]
At the conclusion of the hearing I informed the
parties that the application would be dismissed. These are my reasons for that
decision.
[2]
This is an application for judicial review
pursuant to subsection 72(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27, of a decision of the Immigration Division of the Immigration and
Refugee Board (Immigration Division) ordering that Mr. Hazime continue
to remain in detention.
[3]
Mr. Hazime was born in Venezuela. He and his family entered Canada in 2003 and claimed refugee protection. The claim was dismissed
and a Pre-Removal Risk Assessment application was refused. The applicant and
his family did obtain their permanent resident status in 2006 on humanitarian
and compassionate grounds.
[4]
On August 4, 2009, the applicant pled guilty and
was convicted of conspiracy to export a scheduled substance, trafficking of a
scheduled substance and exporting a scheduled substance, namely 20,000 pills of
ecstasy. The applicant was sentenced to four years in prison for each of the
counts to run concurrently, in addition to a mandatory prohibition order.
After serving approximately one and a half years in a minimum security prison,
the applicant was approved for day parole.
[5]
Due to his criminal convictions, the applicant
lost his permanent resident status. On February 9, 2010 a deportation order
was issued and on December 6, 2010 he was detained on immigration hold. He has
since had several detention review hearings, all of which, until the date of
the present application, found that there were reasonable grounds to believe
that he is a “danger to the public” and “is unlikely to appear for ... removal
from Canada.”
[6]
In the decision under review, dated November 7,
2011, the Member found that since there were no real submissions on the flight
risk concern, there was no reason to depart from the previously made findings.
[7]
The Member noted that a new document dated October
26, 2011 highlighted different facts relating to the applicant which favoured a
finding that he was at a low risk to reoffend. According to the Member, this
was not “new” evidence because it merely repeated what other assessments had
already said about the applicant.
[8]
The Member stated that the concern with the
danger to the public finding was that the evidence submitted “offers little
insight as to why crimes were committed and what changes have taken place since
then.” The Member said to the applicant:
You come from a good family. You had a good upbringing. And for
some unknown reason, you suddenly turned to crime after you started working as
a bouncer. You came into contact with some bad influences.
To me this doesn’t make sense. Just coming into contact with some
bad influences isn’t something, in and of itself, for someone that has your
type of background that would automatically lead you to criminal behaviour.
And so, I - - this new evidence really doesn’t give me any new
insight into why the crimes were committed.
There’s no doubt the crimes were committed. You were convicted of
those crimes. And once you’re convicted, there has to be some sort of
rehabilitation which takes place after the conviction.
…
I have no evidence of any real changes.
[9]
The Member found that the new assessment did not
provide him with a meaningful basis to depart from the previous danger to the
public finding.
[10]
The Member then rejected all the bondspersons
suggested by the applicant. The Member found that regardless of the amount of
money provided by these persons, the danger to the public concern was not
offset. He provided an analysis of the bondspersons because he found that the
danger concern could possibly be offset by the relationship and the ability of
the bondsperson to control the person who is detained. The Member determined
that, in light of the circumstances surrounding the past conviction, there was
nothing to suggest that the applicant’s father and cousin could control the
applicant. The Member found that the new bondspersons suggested at the hearing
– the applicant’s friend – was insufficient to offset the danger concern given
that his relationship was not any closer or more meaningful than his father’s,
which had already been rejected by the previous Members. Accordingly, the
Member ordered the continued detention of the applicant.
[11]
After the present application was filed, at the
applicant’s next detention review on November 23, 2011, the applicant was
ordered released from detention.
[12]
The applicant raises three issues with respect
to the decision under review:
1.
Did the Member err in his conclusion that the applicant poses a danger
to the public?
2.
Did the Member err in his conclusion that the applicant poses a flight
risk?
3.
Did the Member err in his assessment of the proposed alternative to
detention as presented by the applicant?
[13]
The applicant also raised the issue of mootness
in his Further Memorandum of Fact and Law in light of his release. He cites Borowski
v Canada
(Attorney General), [1989] 1 S.C.R. 342 [Borowski]
and submits that the application is not moot. He argues that this Court should
decide on the merits of this case because:
i There exists a live controversy between the parties;
that being whether the applicant is a danger to the public and a flight risk;
ii The decision will have an impact on the applicant’s
rights since he was released on very strict conditions, i.e. payment of cash
bonds in the amount of $71,000 which were based on previous detention reviews
such as the one being reviewed; and
iii The decision is part of the applicant’s immigration
record which could have an impact on future immigration determinations will
have an impact on the applicant’s
[14]
The applicant further submits that Justice
Rothstein’s reasoning in Ramoutar v Canada (Minister of Employment and Immigration), [1993] FCJ No 547 [Ramoutar] applies to the present matter:
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.
…
Even if the
case were moot, I would exercise my discretion to decide it. The adversarial
relationship between the parties continues. There are collateral consequences
to the applicant if the decision appealed from is allowed to stand. And this is
not a case in which a decision by this Court could reasonably be considered to
be an intrusion into the functions of the legislative branch of government.
[15]
Finally, the applicant submits that “the
decision was made in the context of a case where decisions were of a recurring
nature but of brief duration, which militates against a strict approach to the
doctrine of mootness.”
[16]
In response, the respondent starts from the
proposition stated by the Federal Court of Appeal in Baron v Canada (Minister of Public Safety
and Emergency Preparedness), 2009 FCA 81 at paras
26-38 [Baron], that the Court must properly characterize the issue in
dispute. In its submission, this requires the Court to determine what the
parties were seeking in their initial request to the Minister. The respondent says
that what the applicant was seeking both at his detention review and in the
present judicial review was to be released from detention. Since the applicant
has been released, the respondent submits that there is no live controversy
between the parties. The respondent also submits that the applicant has not
shown that judicial economy would be served by this Court hearing the
application for leave.
[17]
The respondent cites various cases which dealt
with similar circumstances and found the application to be moot: XXXX v
Canada (Minister of Citizenship and Immigration), 2011 FCA 27; Canada
(Minister of Citizenship and Immigration) v B031, 2011 FC 878; Ameli v
Canada (Minister of Citizenship and Immigration), IMM-297-11 dated May 10,
2011, unreported; and Ismail v Canada (Minister of Citizenship and
Immigration), 2005 FC 1679 [Ismail].
[18]
Additionally, the respondent submits that the
issues raised in the application relate only to factual issues and that a
decision on the merits would provide little guidance to other cases: Halm v Canada (Minister of Employment and
Immigration) (TD), [1995] FCJ No 1565.
[19]
I have concluded that this application is moot
and the Court should not exercise its jurisdiction to hear the case on its
merits. The Supreme Court of Canada in Borowski in discussing the
doctrine of mootness stated:
The doctrine of mootness is part of a general policy that a court
may decline to decide a case which raises merely a hypothetical or abstract
question. An appeal is moot when a decision will not have the effect of
resolving some controversy affecting or potentially affecting the rights of the
parties. Such a live controversy must be present not only when the action or
proceeding is commenced but also when the court is called upon to reach a
decision. The general policy is enforced in moot cases unless the court
exercises its discretion to depart from it.
The approach with respect to mootness involves a two-step analysis.
It is first necessary to determine whether the requisite tangible and concrete
dispute has disappeared rendering the issues academic. If so, it is then
necessary to decide if the court should exercise its discretion to hear the
case. (In the interest of clarity, a case is moot if it does not present a
concrete controversy even though a court may elect to address the moot issue.)
[20]
I agree with the respondent that the issue in
dispute, properly characterized, was the applicant’s release. As he has since
been released that dispute has disappeared.
[21]
However, as noted by the applicant, decisions of
immigration authorities may have a lasting impact on applicants and their
future endeavours. The Federal Court of Appeal in Baron, above at para
44, reiterated three factors that had been identified in Borowski and
should be considered by a Court when deciding if a moot application should be
heard: “(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.”
[22]
The applicant submits that this Court should
intervene because: (1) he does not want a decision that says he is a danger to
the public or a flight risk; and (2) he wants the conditions of his release to
be amended.
[23]
These are not matters in which this Court can
intervene. Even if this Court were to find that the Member’s decision is
unreasonable and set it aside, it could not find that the applicant is not a
danger to the public or a flight risk. It could only send the matter back to
be determined by another Member. Moreover, the present application does not
relate to the unreasonableness of all the other 11 detention review hearings
which found the applicant to be a danger to the public and a flight risk. Those
decisions will remain on the applicant’s file and record with the immigration
authorities. This alone distinguishes the present case from Ramoutar
where there was but one decision that affected the applicant and not a series
of similar decisions.
[24]
As for the applicant’s submission that he wants
the conditions for release amended, I agree with the respondent that the
applicant is free to apply to the Immigration Division to vary the terms of his
release. That is the proper avenue to seek that remedy, not this Court.
[25]
There are also significant similarities between
the case at bar and Ismail. At paragraph 7 Justice Harrington wrote:
I am satisfied the case is moot. The relief sought in the
application was certiorari quashing the 5 May 2005 decision relating to
continued detention and an order for Mr. Ismail's release. That issue is no
longer live, and Mr. Ismail has been released. If he did not like the
conditions of his release, his recourse was to seek leave to have that distinct
decision judicially reviewed.
At paragraphs
11-12 he wrote:
If the Court were to look at the merits, and grant judicial review,
the matter would be referred back to the Board for redetermination. The
redetermination would be whether or not Mr. Ismail should be continued to be
held in detention, a pointless exercise since he has been released. It is not
up to this Court to order the Board to carry on an investigation to determine
whether or not his reputation has been sullied by the Israeli Secret Service
who he says have made "vague allegations associating me with
violence".
In my view, it would not be appropriate for the Court to deal with
this moot case. If Mr. Ismail considers that his Charter rights have been
violated, and his reputation besmirched, perhaps he has other recourses. The
granting of judicial review would do nothing for his cause, and certainly would
do nothing for judicial economy.
[26]
I agree with Justice Harrington and believe that
the same conclusion is warranted in the present matter. Further, the factor of
judicial economy must be weighed against the impact on the applicant. In my
assessment, any finding open to this Court would not have a significant impact
on the applicant and thus there is little or nothing that outweighs the loss of
judicial resources which would be required if the Court were to hear the
application on its merits. Lastly, I see nothing of general importance in the
case and therefore a decision on the merits would provide little or no guidance
to others in the future.
[27]
For these reasons, this application is dismissed.
[28]
The applicant was provided with a brief period
of time to consider whether he wished to propose a question for certification.
He has proposed the following question: “When an applicant seeks judicial
review of a decision made at a detention review, does that judicial review
become moot upon a subsequent decision to release the applicant which relies on
the findings of the decision under review?”
[29]
The respondent opposes certification, stating
that the proposed question “fails to meet the test for certification because it
deals with an issue of well-established law – namely, that release from
detention renders moot an application for judicial review that continues
detention, as the release from detention gives the applicant the concrete
remedy he was seeking in the detention review.”
[30]
No decision has been put to the Court where it
was found, in the circumstances here, that the application was not moot. There
have been instances where, notwithstanding there being no concrete controversy
the Court has decided to deal with the matter on the merits. I agree with the
respondent that the mootness issue in the circumstances faced by the applicant
is well-established. As such, the question proposed does not meet the test for
certification.
JUDGMENT
THIS COURT’S JUDGMENT is that this application is dismissed and no question is
certified.
"Russel W. Zinn"
Email this Content