Date: 20080917
Docket: IMM-475-07
Citation: 2008 FC 1045
Vancouver,
British Columbia, September 17, 2008
PRESENT: The Honourable Madam Justice Heneghan
BETWEEN:
RAMNARESH
KATWARU
Applicant
and
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
Introduction
[1]
Mr.
Ramnaresh Katwaru (the “Applicant”) seeks judicial review of the decision of
Lucia Isidro, Enforcement Officer with the Canada Border Services Agency (the
“Enforcement Officer”) made February 9, 2007. In her decision, the Enforcement
Officer refused to defer the removal of the Applicant to Guyana.
Background
[2]
The
Applicant was born in Guyana on September 10, 1974. He came to Canada with his
family as a permanent resident in 1992.
[3]
In
1994, he returned to Guyana where he married on December 25, 1994. The
marriage had been arranged by his parents and the parents of his bride. The
Applicant returned to Canada on January 5, 1995, together with his
wife.
[4]
A
male child was born to the Applicant and his wife in August 1995. According to
a statement of the Applicant submitted as part of the H & C application
that he submitted in January 2005, the child was born prematurely and was
hospitalized for four months following his birth.
[5]
The
child died in February 1996; as a result, the Applicant was convicted in 1998 of
manslaughter. The Applicant was also convicted of uttering threats and assault
upon his first wife.
[6]
The
Applicant appealed the convictions. The conviction for manslaughter was set
aside and following a new trial, he was again found guilty of manslaughter
in 2002. The convictions for assault and uttering threats were also set aside
and after a new trial, the Applicant was again convicted of assault. He was
sentenced to a term of four years and seven months imprisonment upon the
manslaughter conviction, with a term of three months concurrent for the assault
conviction.
[7]
A
deportation order was issued against the Applicant on April 3, 2003. In 2005,
he received a negative decision upon his Pre-Removal Risk Assessment (“PRRA”)
application. An application for leave for judicial review of that negative PRRA
was denied on May 5, 2006.
[8]
The
Applicant’s removal was originally scheduled for February 7, 2007, and he
requested a deferral of removal pending a decision on his application pursuant
to subsection 25(1) of the Immigration and Refugee Protection Act, S.C.
2001 c. 27 (“IRPA”), that is, an “humanitarian and compassionate (“H & C”)
application, which he had filed in January 2005.
[9]
The
Applicant also filed a motion for a stay of removal in the event that his
request for a deferral was refused. On February 6, 2007, Justice Gibson granted
an interim stay of removal pending a decision on the Applicant’s request to
defer removal. That decision was made on February 9, 2007. On February 15,
2007, Justice Gibson granted a stay of removal pending disposition of this
application for leave and judicial review. The removal had been scheduled for
February 19, 2007. In his Order, Justice Gibson noted that another risk
assessment has been initiated by the Respondent and remains outstanding.
[10]
By
Order made on October 26, 2007, leave was granted to bring this application for
judicial review. The matter initially came for hearing on January 22, 2008 and
was adjourned until March 3, 2008 to allow the parties the opportunity to
address the issue of mootness in light of the decision in Higgins v. Canada
(Minister of Public Safety and Emergency Preparedness) (2007), 64 Imm. L.R.
(3d) 98.
[11]
By
a Direction issued on June 18, 2008, the parties were given the opportunity to
address the decisions in Palka v. Canada (Minister of
Public Safety and Emergency Preparedness), 2008 FC 342 and Baron
v. Canada (Minister of
Public Safety and Emergency Preparedness) (2008), 69 Imm. L.R.
(3d) 293 since each of these decisions dealt with the issue of mootness
relative to the refusal of an enforcement officer to defer execution of a
removal order and were released on March 13, 2008, that is after the March
3 hearing. The further submissions on the issue of mootness were presented by counsel
for the parties on June 24, 2008.
The Decision
[12]
In
her notes to file, the Enforcement Officer found that there were no impediments
to the Applicant’s removal. She noted that the Applicant had been convicted of
manslaughter, assault and threatening bodily harm in 1999 and that he was
convicted again of assault in 2003. She noted his submissions referred only to
convictions for manslaughter and assault.
[13]
The
Enforcement Officer recorded that the Applicant had been granted a stay of
removal in 2006 and that he was denied leave to commence an application
for judicial review relative to the negative PRRA decision that had been made
in 2006. She noted that the 2006 PRRA decision did not assess risk to the
Applicant if he were returned to Guyana.
[14]
The
Enforcement Officer acknowledged the Applicant’s outstanding H&C
application and said that this was not a basis upon which to defer removal. She
further observed this process of application would likely be delayed due to the
Applicant’s criminal conviction and the requirement of rehabilitation or a
pardon.
Submissions
i)
The
Applicant’s Submissions
[15]
The
Applicant submits that the within application for judicial review is not moot,
notwithstanding the fact that this removal from Canada was stayed
by an Order of this Court. Referring to the decision in Borowski v. Canada (Attorney
General),
[1989] 1 S.C.R. 342, he argues that the dispute concerns the execution of the
removal order prior to the determination of his H&C application. Since this
issue is not resolved, there is a live issue between the parties.
[16]
Alternatively,
the Applicant submits that if the application is found to be moot, the Court
should exercise its discretion to hear the matter on the merits. He argues that
the Enforcement Officer committed several errors in rejecting his request for
deferral, including misapprehension of the evidence, a failure to consider the
unavailability of appeal rights, and the failure to consider his personal
circumstances.
[17]
Further,
he submits that the Enforcement Officer engaged in speculation about a delay in
the processing of his H&C application.
ii) The Respondent’s
Submissions
[18]
The
Respondent also argues that the within application for judicial review is not
moot. He submits that a refusal to defer removal becomes moot in only two
circumstances, as follows:
1. Where
the basis for the deferral request has been resolved prior to the hearing of
the judicial review application, relying upon the decisions in Da Silva v.
Canada (Minister of Citizenship and Immigration), 2004 FC 1154; Kovacs
v. Canada (Minister of Public Safety and Emergency Preparedness) (2008), 68
Imm. L.R. (3d) 218; and Surujdeo v. Canada (Minister of
Public Safety and Emergency Preparedness), 2008 FC 76;
2. Where
no stay of removal has been granted and the applicant was removed prior to the
hearing of the application for judicial review, relying on the decisions in Da
Silva, above; Tran v. Canada (Minister of Public
Safety and Emergency Preparedness) (2007), 58 Imm. L.R. (3d) 93.
[19]
In
any event, the Respondent takes the position that the Enforcement Officer
committed no reviewable error in refusing to defer the Applicant’s removal.
Discussion and
Disposition
[20]
In
its recent decision in Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190,
the Supreme Court of Canada identified two standards of review, that
is correctness and reasonableness. In Mauricette v. Canada (Minister of
Public Safety and Emergency Preparedness), 2008 FC 420, Justice Shore
concluded that the appropriate standard of review for a refusal to defer
removal is that of reasonableness. That standard will apply in this case.
[21]
The
first issue to be addressed, however, is whether this application for judicial
review is moot. The leading case on mootness is the decision of the Supreme
Court of Canada in Borowski where Justice Sopinka said the following at paragraphs
15 and 16:
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
approach in recent cases involves a two-step analysis. First it is necessary to
determine whether the required tangible and concrete dispute has disappeared
and the issues have become academic. Second, if the response to the first
question is affirmative, it is necessary to decide if the court should exercise
its discretion to hear the case.
[22]
The
first question to be considered is whether a live controversy exists between
the parties. In my opinion, the answer must be “no”. The subject of the
application for judicial review is the negative decision of the Enforcement
Officer to defer the removal of the Applicant that was scheduled for February
19, 2007. That date has passed. The removal did not take place because it was
stayed as the result of the Order of Justice Gibson made on February 15, 2007.
[23]
The
next question is whether this Court should exercise its discretion to hear the
matter, notwithstanding the finding that this judicial review application is
moot. In Borowski, Justice Sopinka observed that the underlying
rationale for the doctrine of mootness may guide a Court in deciding whether or
not to exercise its discretion in any event. He said the following at paras.
31, 34 and 40:
The first rationale for the policy and
practice referred to above is that a court’s competence to resolve legal
disputes is rooted in the adversary system …
…
The second broad rationale on which the
mootness doctrine is based is the concern for judicial economy … The concern
for judicial economy as a factor in the decision not to hear moot cases will be
answered if the special circumstances of the case make it worthwhile to apply
scarce judicial resources to resolve it.
…
The third underlying rationale of the
mootness doctrine is the need for the Court to demonstrate a measure of
awareness of its proper law-making function. The Court must be sensitive to its
role as the adjudicative branch in our political framework. Pronouncing
judgments in the absence of a dispute affecting the rights of the parties may
be viewed as intruding into the role of the legislative branch.
[24]
In
Baron, Justice Dawson noted that the validity of the removal order is
not affected following the disposition of an application for judicial review of
a refusal to defer execution of the removal order; see para. 30. The same
applies here. The Applicant remains subject to removal and, in my opinion, this
satisfies the requirement that a live controversy exists between the parties.
[25]
In
Borowski, Justice Sopinka noted that when the special circumstances of a
case make it worthwhile to apply a court’s scarce judicial resources, the concern
for judicial economy is answered. The Applicant argues that since he has no
right to appeal to the Immigration Appeal Division (the “IAD”) under IRPA
relative to the deportation order against him, his only recourse was to follow
the H & C application process, as directed by the Federal Court of Appeal
in Powell v. Canada (Minister of Citizenship and Immigration) (2005),
339 N.R. 189 (F.C.A.).
[26]
I
am satisfied that the outstanding H&C application, which was found by the
Federal Court of Appeal to be an adequate alternative process when an appeal to
the IAD is unavailable, constitutes special circumstances.
[27]
Finally,
there is the third issue, that is, the existence of some public interest that
would favour the exercise of discretion. I note the remark by Justice Dawson in
Baron about the absence of any written policy that may inform
enforcement officers in the exercise of their discretion pursuant to subsection
48(2) of IRPA. In my opinion, the opportunity to provide some guidance meets the
requirements of the third criterion.
[28]
I
agree with the Applicant’s submissions that the Enforcement Officer
misunderstood the evidence relative to his criminal conviction. He had been
convicted only once for the offence of assault, not twice. The original
conviction was granted and the Applicant was tried for a second time for that
offence. Her finding in that regard, that the Applicant had been convicted
twice for the offence of assault, is not reasonable.
[29]
The
Enforcement Officer also erred in concluding that the Applicant had been
granted a stay of removal in January 2006, and that leave had been denied with
respect to his application for leave to commence an application for judicial
review of the negative PRRA decision.
[30]
The
Enforcement Officer clearly misunderstood the facts that were presented by the
Applicant. This casts doubt on her appreciation of the Applicant’s personal
circumstances which are always a relevant consideration for those persons
seeking the benefits that are available under IRPA.
[31]
Further,
I agree with the Applicant’s submissions that the Enforcement Officer
improperly fettered her discretion by failing to appreciate his individual
circumstances, as discussed in Prasad v. Canada (Minister of Citizenship and
Immigration) (2003), 28 Imm. L.R. (3d) 87.
[32]
Insofar
as the Enforcement Officer was authorized to exercise a statutory discretion
under subsection 48(2) of IRPA, the decision in Maple Lodge Farms Ltd. v. Canada,
[1982] 2 S.C.R. 2 is relevant. In this decision, the Supreme Court of
Canada provided guidance in the review of decisions made by those vested with a
statutory power to make discretionary decisions, saying the following at page 7:
In construing statutes such as those
under consideration in this appeal, which provide for far-reaching and
frequently complicated administrative schemes, the judicial approach should be
to endeavour within the scope of the legislation to give effect to its
provisions so that the administrative agencies created may function
effectively, as the legislation intended. In my view, in dealing with
legislation of this nature, the courts should, wherever possible, avoid a
narrow, technical construction, and endeavour to make effective the legislative
intent as applied to the administrative scheme involved. It is, as well, a
clearly-established rule that the courts should not interfere with the exercise
of a discretion by a statutory authority merely because the court might have
exercised the discretion in a different manner had it been charged with that
responsibility. Where the statutory discretion has been exercised in good
faith and, where required, in accordance with the principles of natural
justice, and where reliance has not been placed upon considerations irrelevant
or extraneous to the statutory purpose, the courts should not interfere. …
[33]
In
Poyanipur v. Canada (Minister of
Citizenship and Immigration) (1995), 116 F.T.R. 4, Justice Simpson
observed that an enforcement officer enjoys a discretion to assess whether it
would be reasonable to defer removal pending a decision on an H & C
application. It is well-established that the mere existence of an outstanding
H&C application is not sufficient, by itself, to give rise to a stay of
removal but it is a factor that may be considered.
[34]
In
my opinion, having regard to the decision of the Federal Court of Appeal in Powell,
the existence of an outstanding H & C application is highly relevant
when it is the only means of redress, that is in the absence of a right to
appeal from a deportation order.
[35]
In
the circumstances of this case, I am satisfied that the Enforcement Officer
failed to fully consider all the evidence before her, including the Applicant’s
fears of being at risk if returned to Guyana.
[36]
Insofar
as the Enforcement Officer was authorized to exercise discretion, she erred in
doing so by failing to have regard to the evidence before her.
[37]
In
the result, the application for judicial review is allowed and the decision of
the Enforcement Officer is quashed.
[38]
Counsel
for the Respondent asked that a question be certified, pursuant to subsection
74(d) of IRPA, which is the same question that was certified in Higgins.
Accordingly, the following question will be certified:
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 applicant's removal is subsequently halted by operation of a Stay Order
issued by this Court render the underlying judicial review application moot?
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that the
application for judicial review is allowed and the decision of the Enforcement
Officer is quashed. The following question is certified:
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 applicant's removal is subsequently halted by operation of a Stay Order
issued by this Court render the underlying judicial review application moot?
“E.
Heneghan”
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