Date:
20140306
Docket:
IMM-994-13
Citation:
2014 FC 219
Ottawa, Ontario,
March 6, 2014
PRESENT: The
Honourable Mr. Justice Manson
BETWEEN:
|
|
VICTOR AZHAEV
|
|
|
|
Applicant
|
|
and
|
|
|
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
|
|
|
|
Respondent
|
|
|
|
|
REASONS FOR JUDGMENT
AND JUDGMENT
[1] This is an application
for judicial review of the decision of S. Behrue, an Inland Enforcement Officer
[the Officer], pursuant to subsection 72(1) of the Immigration and Refugee
Protection Act, SC 2001, c 27 [the Act]. The Officer dismissed the
Applicant’s claim for a deferral of his removal from Canada.
I. Issue
[2]
A. Is
this judicial review moot?
i.
If
so, should the Court nevertheless exercise its discretion to hear the merits of
the requested review?
II. Background
[3]
The
Applicant is an Israeli citizen. He first entered Canada on December 16, 2008,
on a six-month temporary residence permit. On June 22, 2009, he made a claim
for refugee protection. His claim was refused by the Refugee Protection Division
of the Immigration and Refugee Protection Board on April 10, 2012, and leave to
the Federal Court was denied on July 3, 2012.
[4]
The
Applicant made an Application for Permanent Residence under the Spouse or
Common-Law Partner in Canada Class [Permanent Residence Claim] on July 20,
2012.
[5]
On
January 15, 2013, the Applicant was notified that he was the subject of an
in-force removal order and was asked to attend the Canadian Border Services
Agency [CBSA] office in Toronto on January 31, 2013.
[6]
On
January 24, 2013, the Applicant’s Permanent Residence Claim was approved in
principle.
[7]
On
January 26, 2013, the Applicant married Svetlana Batyrshina, the sponsor
indicated in his Permanent Residence Claim.
[8]
On
January 30, 2013, CBSA officers did a bond compliance check. The Applicant was
not living at his stated address.
[9]
On
January 31, 2013, the Applicant attended CBSA offices and admitted that he was
in fact living in a common-law relationship with another woman and his marriage
with Ms. Batyrshina was one of convenience.
[10]
On
February 2, 2013, the Applicant was notified he was scheduled for removal on
February 7, 2013.
[11]
On
February 4, 2013, the Applicant’s Permanent Residence Claim was rejected.
[12]
On
February 6, 2013, the Applicant requested a deferral of his removal for either
30-60 days or until he had an opportunity to have a judicial review of the
refusal of his Permanent Residence Claim heard by the Federal Court. The
Applicant’s request for a deferral was rejected the same day by the Officer and
the Applicant immediately launched a judicial review of the Officer’s decision.
This decision is the subject of the instant application.
[13]
In
his refusal letter, the Officer stated:
The Canada Border Services Agency (CBSA) has an
obligation under section 48 of the Immigration and Refugee Protection Act to
carry out removal orders as soon as possible. Having considered your request, I
do not feel that a deferral of the execution of the removal order is
appropriate in the circumstances of this case.
[14]
On
February 7, 2013, Justice John A. O’Keefe granted a stay of the Applicant’s
removal until the instant application was heard or leave denied.
[15]
On
February 19, 2013, the Applicant applied for judicial review of the February 4,
2013, rejection of his Permanent Residence Claim.
[16]
On
June 25, 2013, Chief Justice Paul S. Crampton refused leave for judicial review
of the Applicant’s Permanent Residence Claim.
[17]
I
find that based on the facts before me, the matter is moot for the reasons that
follow.
III. Analysis
[18]
The
Applicant argues that the Court may exercise discretion where there is still an
adversarial relationship between the parties, if deciding the issues is in
consideration of the judicial economy, and if it would not result in the court
intruding into the legislative sphere (Borowski v Canada (Attorney General),
[1989] 1 S.C.R. 342 [Borowski]).
[19]
The
Applicant suggests there is still an adversarial relationship, as the Applicant
and Respondent have different positions on how much time the Applicant should
have to liquidate his assets prior to his removal from Canada.
[20]
The
Applicant also asserts that he has “exigent personal circumstances” which
warrant a deferral being granted (Canada (Minister of Public Safety
and Emergency Preparedness) v Shpati, 2011 FCA 286, at para 44; Ramada v
Canada (Solicitor General), 2005 FC 1112, at para 3). These exigencies include
the failure of the Officer to consider the best interests of the Applicant’s
son (Kolosovs v Canada (Minister of Citizenship and Immigration), 2008
FC 165, at para 7) and language difficulties which led to the denial of his
Permanent Residence Claim.
[21]
The
basis of the Applicant’s February 6, 2013, deferral request was to allow the
Applicant to remain in Canada until 30-60 days had elapsed from the date of the
deferral decision or until a judicial review of his Permanent Residence Claim
was heard. As both the time requested has elapsed and the Applicant’s
application for judicial review of his Permanent Residence Claim has been
denied at the leave stage, a judicial review of the Officer’s deferral decision
is now moot, as there is no live controversy to be resolved based on the
original controversy between the parties (Borowski, above, at
para 15).
[22]
While
this Court has room to exercise its discretion to hear the merits of the
instant application, as guided by the principles in Borowski, I disagree
with the Applicant that there is an adversarial context remaining in this
matter. In Borowski, the Court discussed an adversarial context
as one where “collateral consequences” arise in related proceedings. For
example, if the resolution of an issue in an otherwise moot proceeding
determines the availability of liability or prosecution in a related proceeding
between the parties, there remains an adversarial context between them. In the
instant application, no collateral consequences will arise as a result of
whether the Officer erred in his decision.
[23]
The
second factor enunciated in Borowski, that of judicial economy, weighs
against the Applicant as well. In one sense, judicial economy is related to
being mindful of expending scarce judicial resources to hear an academic
argument (Borowski at para 34). This is not relevant in the instant
application, as Court resources have already been allocated. However, Borowski
does refer to judicial economy in another way: to resolve ongoing uncertainty
in the law to facilitate the expeditious resolution of similar cases in the
future (Borowski at para 35). The Applicant’s argument for this Court to
exercise its discretion is based largely on this principle. He argues that it
will help future litigants, including himself, to develop the jurisprudence on
what “personal exigencies” justify a deferral of removal. However, the Court in
Borowski at para 36 specifically warned against the application of this
factor in the manner suggested by the Applicant:
The mere fact, however, that a case raising the same
point is likely to recur even frequently should not by itself be a reason for
hearing an appeal which is moot. It is preferable to wait and determine the
point in a genuine adversarial context unless the circumstances suggest that
the dispute will have always disappeared before it is ultimately resolved.
[24]
I
find that this factor also weights against hearing the instant application.
[25]
The
third principle in Borowski is not relevant in this case.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1.
This
Application is dismissed;
2.
No
question is to be certified.
"Michael D.
Manson"
Email this Content