Date: 20071026
Docket: IMM-150-07
Citation: 2007 FC 1109
BETWEEN:
VAN MUOI VU
Applicant
and
THE MINISTER
OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
GIBSON J.
INTRODUCTION
[1]
These
reasons follow the hearing on the 23rd of October, 2007, at Toronto,
of an application for judicial review of a Decision of an Enforcement Officer
in the Canada Border Services Agency, dated the 4th of January,
2007, refusing to defer the removal of Van Muoi Vu (the “Applicant”) from Canada. Removal of
the Applicant was scheduled for the 8th of January, 2007. The
scheduled removal was subsequently stayed by Order of this Court.
[2]
This
application for judicial review was heard together with another application
brought on behalf of the Applicant seeking judicial review of a negative
decision on an application for landing from within Canada on humanitarian
and compassionate grounds.
BACKGROUND
[3]
The
Applicant is a forty-eight year old male born in Quang Ninh, Vietnam. He entered
Canada on the 22nd
of June, 1992 as a permanent resident, together with this wife and daughter.
The Applicant and his family members were selected abroad out of a refugee camp
in Hong Kong, under the Designated Class, DC 1. The Applicant’s daughter was
born on the 25th of September, 1989 in Hong Kong in the
refugee camp. Both the Applicant’s wife and his daughter are now Canadian
citizens.
[4]
Further,
since arriving in Canada, the Applicant and his wife have parented two
additional children, both born in Canada and therefore Canadian citizens, the
elder born on the 15th of September, 1997 and the younger born on
the 27th of March, 2004.
[5]
Since
arriving in Canada, the
Applicant and his wife have struggled to adapt and to maintain their family unit.
The Applicant has only a grade 10 education from Vietnam and speaks
very little English or French. The Applicant has worked at various jobs,
primarily in restaurants but also as a cleaner, a mechanic apprentice and a
farm hand.
[6]
The
Applicant acquired a significant criminal record. In 1993, he was convicted of
assault and was fined $250.00. More significantly, in 1994, he was convicted
in British
Columbia
of trafficking in a narcotic (heroin) and received a sentence of 9 months imprisonment.
Most significantly, the Applicant was convicted of four offences on the 10th
of June, 2002, the offences being operating a grow-op for which he received a
15 month sentence, possession for the purpose of trafficking for which he
received a 12 month concurrent sentence, illegal use of electricity or gas,
presumably in conjunction with the grow-op, for which he received a 3 month
concurrent sentence and driving with more than 80 mgs. of alcohol in his blood
for which he received a fine and a 1 year driving prohibition.
[7]
In
the result, a Removal Order issued against the Applicant and his removal was
scheduled. The Applicant applied for deferral of his removal and that
application was denied. This application for leave and for judicial review
followed and, based on this application, a stay of the Applicant’s removal was
granted by this Court.
THE ISSUES
[8]
Counsel
for the Applicant urged that the Applicant was denied procedural fairness in
that the decision maker arrived at the decision under review without providing
the Applicant and his solicitor with a reasonable opportunity to complete
submissions for the decision maker’s review. More important in the view of the
Court is the issue of mootness. That issue will be determinative on this
judicial review.
ANALYSIS
Mootness
[9]
In
Higgins v. Canada (Minister of Public Safety and Emergency Preparedness), I reviewed
the issue of mootness on an application for judicial review with the following
background facts similar to those on this application: First in Higgins,
since the time the deferral of removal was denied, the Applicant had remained
in Canada for more than 9 months whereas here the Applicant had remained in
Canada since the denial of his request for deferral for almost 8 months to the
date of hearing of this judicial review; second, in each case, the Applicant
had remained in Canada by reason of a deferral of removal granted by this Court;
and third, in each case, the underlying application for leave and for judicial
review had matured by leave being granted and had thereafter further matured to
the point of hearing.
[10]
In
Higgins, after reviewing the seminal case on mootness, Borowoski v. Canada (Attorney
General). I
determined that application to be moot. I wrote:
It is beyond question
that: first, the removal arrangements made by the Respondent for the Applicant
are no longer relevant; secondly, no removal arrangements for the Applicant are
currently in place; and finally, substantially more evidence is now available
in relation to any disability that the Applicant’s spouse’s nine (9) or ten
(10) year old son might suffer from, his needs in relation to any such
disability and any role that the Applicant plays and is capable of continuing
to play in relation to that son. Further, an application for landing of the
Applicant from within Canada on humanitarian and compassionate
grounds is before immigration authorities and provides a substantially more
appropriate platform from which to determine the best interests of the boy than
does a request for deferral where the issue for consideration is whether removal
at a particular arranged time is “reasonably practicable”. Further, it is
beyond question that, if the Respondent remains determined to remove the
Applicant before his humanitarian and compassionate grounds application is
determined, it would be open to the Applicant to request a new deferral of
removal, based on all of the current circumstances and evidence and, if that
request is denied, a further application for leave and for judicial review
would be open to him together with a further motion before this Court seeking a
stay of removal pending the final determination of that new application for
leave and for judicial review.
The issue of mootness
has been the subject of consideration by this Court in the immigration context
on a number of previous occasions. In at least one of those cases, it has been
applied so that the merits of the application for judicial review were not
heard.
Given the foregoing, and
given the principles of mootness recited above, the Court is satisfied that
consideration of this application for judicial review on its merits would not
have the effect of resolving any controversy affecting the rights of the
parties to this matter. The issue of the timeliness or untimeliness of any
arrangements made in the future to remove the Applicant from Canada would
continue to be a live issue between the parties. It simply is not a live issue
between the parties at this time and in this context.
This application for
judicial review is moot.
Further, against the
criteria governing the exercise of discretion to hear a matter notwithstanding
that it is moot, the Court finds no basis whatsoever to exercise its discretion
to hear this matter.
[11]
With
appropriate modifications to reflect the fact that the Applicant’s application
for landing from within Canada on humanitarian and compassionate grounds has
here been decided by the Respondent, against the Applicant, and is before this
Court on judicial review, simultaneously with this application, I am satisfied
that much the same might be said here. The removal arrangements scheduled for
January of 2007 are clearly no longer relevant. No removal arrangements in
respect of the Applicant are currently in place. The Applicant’s three
children, now all Canadian citizens, remain in Canada and their
best interests have been reviewed and remain open for further review if that is
determined to be appropriate. Finally, if a new removal date for the
Applicants were scheduled, it would again be open to him to apply for deferral
of that removal, based upon the situation that then exists not on the situation
that existed when he earlier applied for deferral of removal and was denied
that deferral.
[12]
I
am satisfied that this application for judicial review is moot.
CONCLUSION
[13]
Based
on the foregoing brief analysis, and based upon the particular facts underlying
this application for judicial review, I am satisfied that this Application is
moot and I decline to exercise my discretion to nonetheless hear it on its
merits. This application for judicial review will be dismissed as moot.
CERTICIATION OF A
QUESTION
[14]
In
Higgins, supra, I certified the following question:
Where an applicant has filed an
application for leave and judicial review of a decision not to defer the
implementation of a Removal Order outstanding against him or her, does the fact
that the applicants’ removal is subsequently halted by operation of a stay
Order issued by this Court render the underlying judicial review application
moot?
[15]
The
same question was certified in Maruthalingam v. Canada (Minister
of Public Safety and Emergency Preparedness), a decision that followed my
reasoning in Higgins.
[16]
Counsel
for the Applicant herein has requested that I certify the same question here.
I will do so.
“Frederick E. Gibson”
Ottawa,
Ontario
October
26, 2007
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