Date: 20070425
Docket: IMM-2005-06
Citation: 2007 FC 438
Montréal, Quebec, April 25, 2007
PRESENT: The Honourable Mr. Justice Martineau
BETWEEN:
CARLOS
MARIO GONZALEZ-RUBIO SUESCAN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
[1]
The
applicant is a citizen of Colombia who alleges that he
would be in danger of torture, be at risk of persecution, or face a risk to his
life or a risk of cruel and unusual punishment if removed to his country.
However, on March 30, 2006 an immigration officer determined that the
applicant was ineligible to make a claim for refugee protection.
[2]
The
legality of the impugned decision turns on the application of paragraph 101(1)(c)
of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the
Act), which provides that a claim for refugee protection is ineligible to be
referred to the Refugee Protection Division (RPD) of the Immigration and
Refugee Board (IRB) on the ground that a prior claim by the claimant was
determined to be ineligible to be referred to the RPD, or to have been
withdrawn or abandoned, which is the case here.
BACKGROUND
[3]
The
applicant was admitted in the United States on a visitor visa on
October 21, 2004 and authorized to remain there until April 20, 2005.
He did not make a refugee claim in that country. On February 20, 2006,
he presented himself at the Saint-Bernard de Lacolle port of entry on the
Quebec-New York border and made a claim for refugee protection alleging that he
feared persecution in Columbia because he would be persecuted, recruited or
killed by the members of the groups called Autodefensa Unidas de Colombia (AUC)
and Convivir, as well as by a man named Jose Ulises Barrios.
[4]
On
February 21, 2006, an immigration officer determined that his claim was ineligible
for referral to the RPD pursuant to paragraph 101(1)(e) of the Act, as
he had come directly or indirectly to Canada from the United States, a country
designated by the Immigration and Refugee Protection Regulations,
SOR/2002-227 (the Regulations) under paragraph 102(1)(a) of the Act (the
first ineligibility decision). Moreover, the applicant was deemed inadmissible
pursuant to subsection 41(a) and paragraph 20(1)(a) of the
Act. As a result, an exclusion order was issued against him on February 21,
2006. The order provided that the applicant could not enter Canada without the
written consent of the Minister at any time for one year after the enforcement
of the exclusion order.
[5]
The
applicant was removed from Canada and was returned to the United States. It is
important to note that the applicant has never challenged the legality of the
first ineligibility decision and of the exclusion order issued against him on
February 21, 2006.
[6]
On
February 21, 2006, the applicant was returned to the United States from Canada pursuant to
the Safe Third Country Agreement. The same day, he was served a notice to appear
charging him as deportable under subparagraph 237(a)(1)(B) of the Immigration
and National Act, for having remained in the United States beyond his period
of authorized stay, and placed into removal proceedings before an immigration
judge pursuant to section 240 of the Immigration and National Act. The
applicant was then released on his own recognizance pending a final
determination by the immigration judge in his case. At that time, the applicant
indicated his intention to make a claim for asylum in the United
States.
However, the applicant did not appear for his scheduled hearing before an
immigration judge on June 13, 2006 and was ordered removed on the same date.
[7]
In
the meantime, on February 26, 2006, the applicant returned to Canada. He applied
for refugee status the next day at the Citizenship and Immigration Canada
inland office in Montreal. On March 30, 2006, an immigration
officer rendered the impugned decision. This time, the immigration officer determined
that the applicant’s claim was ineligible to be referred to the RPD pursuant to
paragraph 101(1)(c) of the Act, as the applicant had already presented a
prior claim that was determined to be ineligible. The immigration officer also
determined that the applicant had entered Canada illegally,
as he had not obtained the authorization of an officer as required under
subsection 52(1) of the Act. A deportation order was issued on the same
day. Again, it is important to note here that the applicant did not contest the
legality of the deportation order.
[8]
On
April 8, 2006, the applicant requested the removal officer to allow him to
remain in Canada. He alleged
that the United
States
could no longer be considered a safe third country (since he was no longer
eligible to file a claim for protection in that country) and that he feared for
his life if he was deported to Columbia. The applicant
requested that prior to any removal, he be allowed to file a Pre Removal Risk
Assessment (PRRA) application since “the program objective of the PRRA is
policy based and rooted in Canada’s domestic and international commitments to
the principle of non-refoulement” (letter dated April 8, 2006 addressed by
applicant’s counsel to the Canada Border Service Agency (CBSA)). The request
for deferral was refused but no application was made against the decision
rendered by the removal officer. The applicant did not appear for removal at
the assigned date and a warrant for his arrest was issued on
April 6, 2006.
[9]
On
April 13, 2006, the applicant filed a notice of application for leave
and judicial review of the impugned decision. The applicant did not seek from
the Court a stay of the deportation order pending final determination of the
present application. The applicant went underground.
[10]
The
applicant was arrested on October 19, 2006 and released on conditions
at that time. On November 28, 2006, the applicant was notified that
he could make an application for protection to the Minister on the ground that
he would be at risk of persecution, torture, risk to life or risk of cruel and
unusual treatment or punishment in his country. As explained in the affidavits
of Raymond Dubrule and John R. Butt, submitted by the respondent, the applicant
became eligible for a PRRA assessment because more than six months had passed
since he had left Canada after his first claim for refugee protection
was determined to be ineligible.
[11]
The
application for judicial review in the present case first came before the Court
on December 6, 2006, but was adjourned with the consent of counsel in order to allow
the applicant and the respondent to file additional evidence and supplementary
memoranda of law with respect to the constitutional issue raised by the applicant
in his notice of constitutional question filed on November 27, 2006. Moreover, counsel
for the applicant indicated that his client would also make a PRRA application.
[12]
Indeed,
the applicant made a PRRA application sometime in December of 2006. On February 13, 2007,
PRRA officer S. Saliba rejected the applicant’s PRRA application on the basis
that the applicant would not be subject to a risk of persecution, torture, risk
to life or risk of cruel and unusual treatment or punishment if returned to Colombia (the PRRA
decision). The legality of the PRRA decision is now the object of a separate
application for leave and judicial review, which was served and filed on March
12, 2007 (see file IMM-1073-07).
[13]
The
present application came before the Court for a second time on April 3, 2007. In
the meantime, the applicant did not file additional evidence on the
constitutional issue and did not submit a supplementary memorandum of law. That
being said, the respondent filed additional evidence as well as a supplementary
memorandum asking, inter alia, that the present application be dismissed on the
ground of mootness.
ISSUES
RAISED IN THIS PROCEEDING
[14]
First,
the applicant recognizes that the immigration officer who made the impugned
decision on March 30, 2006 correctly applied paragraph 101(1)(c)
of the Act. However, the applicant argues that paragraph 101(1)(c) of
the Act is of no force or effect in his personal situation, because its
application would result in his being deported to Colombia without any
adjudication of his claim for protection, in violation of section 7 of the Canadian
Charter of Rights and Freedoms, Part I of the Constitution Act,
1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11
(the Charter). The applicant asks that the impugned decision be set aside and his
file be returned to an immigration officer for a new decision consistent with
the Court’s declaration that the impugned provision is of no force or effect in
his personal situation. The immigration officer should be further directed by
the Court to refer his claim to the RPD and to make a conditional removal order
(letter signed by applicant’s counsel dated December 7, 2006).
[15]
The
applicant argues in his written memorandum of law dated June 2, 2006 that his constitutional
right not to be removed and to stay in Canada until his claim for protection
can be heard by the RPD is consistent with Canada’s international obligations. Indeed,
Canada is committed
to the principle of non-refoulement. The applicant contends that in Singh v.
Canada (Minister of Employment and Immigration), [1985] 1 S.C.R. 177, the
Supreme Court of Canada found that asylum seekers in Canada were entitled to
the protection conferred by the United Nations Convention Relating to the
Status of Refugees. As such, according to the applicant, the prohibition of
refoulement applies not only to persons who have been formally recognized, but
to all asylum seekers. The applicant submits in his affidavit dated June 1,
2006, that he was denied access to the PRRA program pursuant to paragraphs
112(2)(b) and (d) of the Act; the former because of the first
ineligibility decision, and the latter because he was “removed” from Canada on
February 21, 2006, and less than six months had passed since that time. In his
memorandum of law dated June 2, 2006, the applicant asserts that he “thus
became forever ineligible to access refugee protection in Canada because he
presented himself on one past occasion at a US-Canada land port of entry
seeking refugee protection”. Consequently, paragraph 101(1)(c) of the Act violates
section 7 of the Charter by allowing the “presumptive refoulement” of asylum
seekers (see memorandum of argument dated June 2, 2006 at para. 55).
[16]
For
his part, the respondent submits in his various memoranda of law that the applicant’s
section 7 rights are not engaged. In support of his position, the respondent refers
to a number of cases that have addressed the constitutionality of ineligibility
provisions and found that they do not engage section 7 of the Charter (Berrahama
v. Canada (Minister of Employment and Immigration) (1991), 132 N.R. 202
(F.C.A.); Nguyen v. Canada (Minister of Employment and Immigration),
[1993] 1 F.C.R. 696 (F.C.A); Kaberuka v. Canada (Minister of Employment and
Immigration), [1995] 3 F.C.R. 252 (F.C.T.D.); Jekula v. Canada (Minister
of Citizenship and Immigration), [1999] 1 F.C.R. 266, aff’d (2000), 266
N.R. 355 (F.C.A). However, as a preliminary argument, the respondent submits that
the present application for judicial review is moot. There is no need to
determine today whether or not the applicant should be constitutionally exempted
of the application of the impugned provision. If the applicant seeks further
protection, he must challenge the PRRA decision by way of judicial review,
which is just what the applicant did last March 13, 2007.
[17]
The applicant responds that he did not have the opportunity to
have his claim for protection decided by the IRB, which would have held an oral
hearing. He submits that the PRRA process is flawed as the procedural rights
afforded to applicants for protection pursuant to subsection 112(1) of the Act
do not meet the procedural requirements for refugee claimants established in
Singh cited above.
[18]
Counsel agree that I should dispose of the mootness issue
before deciding the constitutional issue, which will require, as the case may
be, that another hearing date be set.
MOOTNESS
[19]
In
Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342, the Supreme
Court of Canada explained
the legal principles governing the doctrine of mootness:
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.
[20]
The
approach involves a two-step analysis. The first step, also known as the “live
controversy” test, is to determine whether the tangible and concrete dispute
has disappeared and whether the issue has become academic. In the affirmative,
the second step is to decide whether the Court should exercise its discretion
to hear the case. The Court will consider, in this regard, the existence of an
adversarial context, the conservation of judicial resources and the proper
law-making function of the Court. These three factors are general guidelines
and in the exercise of its discretion, the Court may attribute more or less
weight to each factor and may also take into account any other relevant factor
depending on the particular circumstances of the case.
[21]
In
my view, the application is moot and it is not a case where this Court should
exercise its discretion to decide whether the applicant should be
constitutionally exempted from the application of paragraph 101(1)c) of
the Act.
[22]
The
fact is that despite the impugned decision, an assessment of risk has been
conducted in February 2007 by a PRRA officer.
[23]
The
PRRA process emerged as a result of jurisprudence that required a timely risk
assessment to comply with section 7 of the Charter (Figurado v. Canada (Solicitor
General)(F.C.), 2005 FC 347 at para. 40). Indeed, section 112 of the Act
provides that subject to certain requirements, persons with no legal status in
Canada and who are subject to a removal order such as the applicant may make an
application for protection to the Minister on the basis that they are at risk
of persecution, torture, risk to life or risk of cruel and unusual treatment or
punishment in their country of nationality. Subsection 113(c) of
the Act provides that in coming to their decision, the PRRA officer must
consider the application for protection on the basis of sections 96 to 98 of
the Act. These are the same sections that are considered by the IRB in the
context of a refugee determination.
[24]
In
both his original written submissions and his reply, the applicant argued that
he faced immediate removal from Canada without a prior
assessment of the risks he would face in Colombia. In the case
of the applicant, a positive PRRA determination would confer refugee status on
him. As a result, he would become eligible, pursuant to subsection 21(2) of the
Act, to apply for permanent residence.
[25]
In
the case at issue, the applicant asked for a hearing before the PRRA officer,
but as the PRRA officer did not call into question the applicant’s credibility,
no hearing was held, pursuant to section 167 of the Regulations. Since
this case arises out of a concern that the absence of a risk assessment violates
the Charter, any live controversy between the parties has been dissolved by the
PRRA decision.
[26]
The
Court will generally be reluctant to decide cases on a constitutional ground
where the dispute could otherwise be resolved (Adviento v. Canada (Minister
of Citizenship and Immigration), 2003 FC 1430 at para. 53; Phillips v.
Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy), [1995] 2
S.C.R. 97 at paras. 6-11; Baker v. Canada (Minister of Citizenship and
Immigration), [1999] 2 S.C.R. 817 at para. 11).
[27]
The
applicant can no longer be removed to the United States. Moreover, the
respondent, through his legal counsel, has taken an undertaking before this
Court that no attempt will be made to remove the applicant from Canada or
deport him to Colombia until a
final decision has been rendered with respect to the application for leave and
for judicial review made by the applicant against the negative PRRA assessment.
[28]
Accordingly,
there would be no useful purpose in hearing the matter. If the applicant has
any issue with the propriety of the PRRA process, as suggested by the
respondent, he can do so in the context of his most recent application for
leave and for judicial review (file IMM-1073-07). For the sake of judicial
economy, this is a far better procedural option than keeping the present
litigation artificially alive, not to mention the potential for conflicting
decisions.
[29]
In
making the present determination, the Court is also sensitive to its role as
the adjudicative branch in our political framework. I am also taking into
account the past conduct of the applicant. The fact that the legality of the
first ineligibility decision, the exclusion order, as well as the subsequent
deportation order were not challenged has created legal obstacles to the full
assessment of the constitutional issue raised by the applicant. It should also
be remembered that, in this case, the applicant has not asked for a general
declaration of invalidity of the impugned provision. He has only asked for a
constitutional exemption from the application of the impugned provision in his
case.
CONCLUSION
[30]
The
present application must be dismissed on the ground of mootness. An order to
that effect shall issue once I have determined whether a question of general
importance should be certified by the Court. Accordingly, I direct that within
seven (7) days of the issuance of the present reasons for order, the applicant may
serve and file a letter proposing any question for certification, together with
his representations. The respondent may serve and file a reply within seven (7)
days of service of the applicant’s request for certification and representations.
“Luc Martineau”
Montréal,
Quebec
April
25, 2007
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