Vaziri v. Canada (Citizenship and Immigration), 2007 FCA 150

Date: 20070412

Docket: A-451-06

Citation: 2007 FCA 150

CORAM:       LÉTOURNEAU J.A.

                        EVANS J.A.

                        SHARLOW J.A.

BETWEEN:

HOMAYOUN VAZIRI; HASSAN VAZIRI

Appellants

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

Dealt with in writing without appearance of parties.

Judgment delivered at Ottawa, Ontario, on April 12, 2007.

REASONS FOR JUDGMENT BY:                                                                          SHARLOW J.A.

CONCURRED IN BY:                                                                                       LÉTOURNEAU J.A.

                                                                                                                                        EVANS J.A.

Date: 20070412

Docket: A-451-06

Citation: 2007 FCA 150

CORAM:       LÉTOURNEAU J.A.

                        EVANS J.A.

                        SHARLOW J.A.

BETWEEN:

HOMAYOUN VAZIRI; HASSAN VAZIRI

Appellants

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR JUDGMENT

SHARLOW J.A.

[1]               The respondent, the Minister of Citizenship and Immigration, has moved to dismiss this appeal for mootness. The appellants Homayoun Vaziri and Hassan Vaziri concede that the appeal is moot, but they argue that the Court should exercise its discretion to hear the appeal despite its mootness.

[2]               Homayoun Vaziri is a Canadian citizen. He applied in August of 2003 to sponsor a visa application by his father, Hassan Vaziri. That sponsorship application was delayed because the Minister had adopted a policy of setting targets for visa approvals by class and giving higher priority to sponsorship applications involving spouses and children. In 2005, Mr. Vaziri sought and was granted leave to commence an application for judicial review to seek an order compelling the Minister to render a decision on his sponsorship application.  His application was heard on September 5, 2006 by Justice Snider. She framed the issues as follows:

1.      In the absence of regulations enacted under subsection 14(2) of the Immigration and Refugee Protection Act, does the Minister act without authority in setting targets for visa approvals by class and establishing procedures that prioritize sponsored applications within the family class?

2.      Have the applicants met the test for mandamus?

The application for judicial review also included a request to convert the application into an action so that it could be certified as a class action, but that aspect of the application was not addressed by Justice Snider, I assume because it was not argued.

[3]               Justice Snider rendered her decision on September 29, 2006. She concluded that the Minister had acted lawfully in setting priorities as he had done. She also concluded that Mr. Vaziri had not made out a case for mandamus because there had been no undue delay in the processing of Mr. Vaziri’s sponsorship application, and because there was an adequate alternative remedy (an application for a temporary resident visa for his father). She was also satisfied that in any event the application was likely to be processed in early 2007, so that an order of mandamus would have little practical effect. Justice Snider dismissed the application for judicial review, but certified a question to permit this appeal to be commenced. The Minister issued a visa to Mr. Vaziri’s father in February of 2007, rendering this appeal moot.

[4]               In my view, the Court should not exercise its discretion to hear this moot appeal.

[5]               First, I am not satisfied that a sufficient adversarial context continues to exist. It is not suggested that there are any collateral consequences of the decision under appeal that would affect the rights of Mr. Vaziri or his father. I appreciate that Mr. Vaziri may have a personal interest in this Court’s assessment of the legality of the Minister’s policy, but that is not the kind of adversarial context that can justify hearing a moot appeal. I also appreciate that Mr. Vaziri’s counsel represents a number of other applicants whose cases raise the same point. However, although Justice Snider described this matter as a “test case”, the Minister has not agreed that a successful appeal in this case would determine those other proceedings. On the contrary, the Minister asserts, I think correctly, that the mandamus applications in the other cases would have to be determined on their own facts, even if this Court were to find that the Minister’s priority policy was not lawful.

[6]               Second, I am not satisfied that judicial economy would be served by hearing this moot appeal. Again, that is because each of the other cases would have to be assessed on its own merits regardless of this Court’s determination of the legality of the Minister’s priority policy. Counsel for the appellants asserts that there are as many as 100,000 people who may be affected by this decision. That may be so, but that means only that there may potentially be a large number of cases that must each be assessed on its own merits. It does not assist the appellants in this case.

[7]               For these reasons, I would allow the motion of the Minister to dismiss this appeal as moot.

“K. Sharlow”

“I agree

            Gilles Létourneau J.A.”

“I agree

            John M. Evans J.A. ”

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                                                              A-451-06

STYLE OF CAUSE:                                                              HOMAYOUN VAZIRI; HASSAN VAZIRI v.

                                                                                                THE MINISTER OF CITIZENSHIP AND IMMIGRATION

MOTION DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES

REASONS FOR JUDGMENT BY:                                     SHARLOW J.A.

DATED:                                                                                 April 12, 2007

WRITTEN REPRESENTATIONS BY:

SOLICITORS OF RECORD: