Date:
20130327
Docket:
IMM-3135-12
Citation:
2013 FC 318
Ottawa, Ontario,
March 27, 2013
PRESENT: The
Honourable Mr. Justice O'Reilly
BETWEEN:
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ANOUSHEH ABBAS-NEJAD
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
I. Overview
[1]
The
Immigration Appeal Division (IAD) of the Immigration and Refugee Board found Mr
Abdollah Abbas-Nejad, a citizen of Iran, to be medically inadmissible to Canada based on his heart condition. The IAD upheld a visa officer’s decision to turn down
his application for permanent residence. The officer’s decision was based on a
medical officer’s opinion that Mr Abbas-Nejad might reasonably be expected to
cause excessive demand on Canadian health services. The IAD found that the
officer’s reliance on the medical opinion was reasonable, and therefore
rejected the appeal. Mr Abbas-Nejad and his wife, Ms Fatemeh Jafarian, had been
sponsored by his daughter, Ms Anousheh Abbas-Nejad.
[2]
Ms
Abbas-Nejad was granted leave to seek judicial review of the IAD’s decision
but, regrettably, her father passed away prior to the hearing.
[3]
The
Minister argues that the judicial review is now moot. Counsel for Ms
Abbas-Nejad argues that there are some issues before the Court that are either
not moot, or that I should exercise my discretion to decide certain issues notwithstanding
their mootness.
[4]
I
am satisfied that most of the issues raised on this application for judicial
review are moot. The exception is the humanitarian and compassionate analysis
(H&C) relating to Mr Abbas-Nejad’s wife. I will, therefore, allow this
application for judicial review solely in respect of that issue.
[5]
The
issues are:
1. Is this
application for judicial review moot?
2. If
so, should I exercise my discretion to decide some or all of the issues
notwithstanding that they are moot?
II. The IAD’s decision
[6]
The
IAD hearing took place in August 2011. Mr Abbas-Nejad testified by telephone,
and his daughter appeared in person. The Minister supplied written submissions,
but did not appear at the hearing.
[7]
The
IAD, in its written decision, noted its arrangement with the Minister,
according to which the Minister will not participate in a hearing before the
IAD where the only issues involve H&C considerations. However, the Minister
will be invited to make supplementary written submissions if new issues arise
at the hearing or the legal validity of the decision on medical inadmissibility
is put in issue. Since Ms Abbas-Nejad raised issues relating to the legal
validity of the underlying decision finding Mr Abbas-Nejad medically
inadmissible, the IAD invited the Minister to make supplementary submissions.
The Minister submitted six pages of argument and 58 pages of documentary
evidence.
[8]
The
IAD invited Ms Abbas-Nejad to respond to the Minister’s supplementary submissions
and she did so.
[9]
The
IAD concluded that Mr Abbas-Nejad was medically inadmissible to Canada because of his coronary artery disease.
III. Issue One – Is this
application for judicial review moot?
[10]
Mr
Abbas-Nejad passed away in late December 2012. The Minister submits that this
application for judicial review is, therefore, moot.
[11]
Clearly,
the question whether Mr Abbas-Nejad is medically inadmissible to Canada is moot. And there is no suggestion that I should consider that issue
notwithstanding that it is moot.
[12]
However,
Ms Abbas-Nejad argues that I should answer the following questions,
notwithstanding the fact that the main issue before me is moot:
• does
the agreement between the IAD and the Minister offend principles of fundamental
justice or raise a reasonable apprehension of bias?
• where
the opinion of a specialist who has examined an applicant for permanent
residence does not accord with the opinion of an immigration medical officer,
should the latter defer to the former?
[13]
In
my view, both of these issues are moot. The first raises an issue of natural
justice relating to the process by which the IAD reached its decision on
medical inadmissibility. The second raises a question about the reasonableness
of the IAD’s treatment of the evidence. Given that the issue of Mr
Abbas-Nejad’s medical inadmissibility is itself moot, so too are issues
relating to the IAD’s process of arriving at its decision and its analysis of
the evidence before it.
[14]
There
remains, however, one issue that was before the IAD and is not now moot. That
is the question whether there were H&C factors supporting Ms Jafarian’s
application for permanent residence. The IAD focussed on the issue of medical
inadmissibility and H&C considerations relating to Mr Abbas-Nejad’s
application. But it never expressly addressed Ms Jafarian’s application. In the
present circumstances, that part of the IAD’s task takes on special
significance. In my view, given the failure of the IAD to deal with it, its
negative conclusion cannot be considered reasonable.
IV. Issue Two – Should I
exercise my discretion to decide some or all of the issues notwithstanding that
they are moot?
[15]
Ms
Abbas-Nejad submits that I should decide the issues of fairness and
reasonableness described above even if they are, strictly speaking, moot. In
considering whether to deal with issues that are moot, I must consider whether
there remains an adversarial relationship between the parties, whether it is
worth expending scarce judicial resources in deciding them, and whether
pronouncing on the issues would take the Court outside of its adjudicative
function into a legislative role (Borowski v Canada (Attorney General),
[1989] 1 S.C.R. 342).
[16]
These
factors suggest that I should decline to decide the moot issues. At this point,
Ms Abbas-Nejad no longer has any stake in the outcome of this proceeding (other
than in the narrow sense described above). Whether the IAD proceeded fairly or
unreasonably in respect of her father’s application will have no effect on that
application. Further, the issues raised are significant and would require
considerable time and effort to decide. In particular, the fairness issue is a
novel one, so far as I am aware, and deciding it would require the Court to set
a precedent. In my view, it would be preferable to consider that issue in a
live case, where the IAD’s conduct might have had a real effect on the outcome.
Finally, to decide the issues raised here would amount to the Court issuing
declarations on legal questions in the abstract. In my view, the Court should
hesitate to do so unless the issues cry out for an answer to guide the
resolution of other disputes. That is not the case here. The issues raised may
wall arise in other cases and that is where they should be decided, not by
declaring what the law should be in the context of a moot case.
[17]
Therefore,
I will not decide the issues presented by Ms Abbas-Nejad.
V. Conclusion and
Disposition
[18]
For
the most part, this case is moot, and the circumstances do not warrant deciding
the issues raised. However, the IAD never considered whether Ms Jafarian’s
circumstances merited relief on humanitarian and compassionate grounds;
therefore, I will remit this matter to the IAD to deal with that question.
Neither party proposed a question of general importance for me to certify, and
none is stated.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1.
The
application for judicial review is allowed in part;
2.
The
matter is returned to the IAD to deal with the humanitarian and compassionate
factors arising in Ms Fatemeh Jafarian’s application for permanent residence.
“James W. O’Reilly”
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