Docket: A-159-20
Citation: 2022 FCA 33
| CORAM:
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WEBB J.A.
MACTAVISH J.A.
LEBLANC J.A.
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| BETWEEN:
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| FREDERIC HAKIZIMANA
MARIE ROSE NIYONZIMA
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| Appellants
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| and
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| CANADA (PUBLIC SAFETY AND EMERGENCY PREPAREDNESS)
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| Respondent
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REASONS FOR JUDGMENT
LEBLANC J.A.
[1] This is an appeal from a decision of the Federal Court dated January 17, 2020 (2020 FC 63, 2020 CarswellNat 1126 (WL Can)), dismissing the appellants’ application for judicial review of a decision of a Canada Border Services Agency officer (the Officer) who determined that the appellants were ineligible for refugee protection on the basis of paragraph 101(1)(d) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act). Paragraph 101(1)(d) provides that a claim for refugee protection is ineligible to be referred to the Refugee Protection Division (the RPD) if “the claimant has been recognized as a Convention refugee by a country other than Canada and can be sent or returned to that country”
.
[2] As will be explained below, this matter is now moot and should be dismissed on that basis.
[3] The appellants, who are husband and wife, are citizens of Burundi and members of the Tutsi minority. In 2015, fearing for their lives, they fled Burundi and eventually moved to Uganda, where they were granted refugee status. However, they assert that while in Uganda, they continued to face persecution at the hands of Burundian militias.
[4] In the spring of 2018, the appellants fled Uganda and travelled to Canada, where they sought refugee protection. Their claim was found ineligible for referral to the RPD because they had been recognized as Convention refugees by a country other than Canada—i.e. Uganda—and could be sent or returned to that country.
[5] The appellants challenged that decision before the Federal Court, arguing that the Officer had misapplied paragraph 101(1)(d). More particularly, they argued that they should not have been found ineligible for refugee protection in Canada on the basis of their refugee status in Uganda, given their fear of persecution there. They insisted that the Officer’s interpretation of paragraph 101(1)(d) was unreasonable because it conflicts with Canada’s international obligations not to send individuals back to countries where they have a well-founded fear of persecution, and also conflicts with the fundamental purposes of the Act, which include saving lives and protecting persons subject to persecution.
[6] On January 17, 2020, the Federal Court dismissed the appellants’ application for judicial review. It held that it was reasonable on the part of the Officer to interpret paragraph 101(1)(d) of the Act as applying to persons who fear persecution in the country where they have refugee status because there are means of protecting these persons other than granting them refugee status. The Federal Court noted that no steps had been taken to return the appellants to a country where they have a well-founded fear of persecution and that therefore, any potential infringement of the principle of non-refoulement was speculative.
[7] The appellants urge this Court to “adopt a new interpretation of paragraph 101(1)(d) that properly aligns with Parliament’s intent […], principles of procedural fairness, international law, and the plain language of the provision itself.”
(Appellants’ Memorandum at para. 9). Although they acknowledge that “previous case law”
supported the Officer’s interpretation of paragraph 101(1)(d), they claim that this jurisprudence is premised on the Act’s predecessor, which explicitly provided for an alternative risk assessment for individuals in their situation (Appellants’ Memorandum at para. 8). According to the appellants, things are different now under the Act. They contend that although Parliament, through subsection 115(1) of the Act, has incorporated into Canadian law the principle of non-refoulement arising from Article 33 of the Convention relating to the Status of Refugees, July 28, 1951, 189 U.N.T.S. 137 (entered into force on April 22, 1954, accession by Canada on June 4, 1969) (the Refugee Convention), subsection 112(1) of the Act no longer allows for a risk assessment to be carried out for individuals who have been found ineligible to file for refugee protection under paragraph 101(1)(d).
[8] A few days prior to the hearing of this appeal, counsel for the respondent brought to the Court’s attention, “in the interests of transparency, given possible procedural impacts”
, that the appellants had submitted an application for permanent residence based on humanitarian and compassionate grounds (the H&C application). Counsel specified that the H&C application had received stage 1 approval, but advised that it was unknown when the final determination would be made.
[9] At the beginning of the hearing, the Court sought the views of the parties on whether it should proceed with the appeal, given this new information. The Court decided to hear the matter, but asked to be kept apprised of any development regarding the H&C application.
[10] On January 21, 2022, the Court was informed that the appellants’ H&C application had received final approval. As a result, the Court directed the parties to make submissions on why this appeal should not be dismissed on the basis that it is moot.
[11] It is trite that the application of the mootness doctrine involves a two-step analysis. The first step requires an assessment of whether the tangible and concrete dispute between the parties has disappeared. The Court must determine whether there is still a “live controversy”
. If there is no longer a live controversy between the parties, the second step of the analysis requires the Court to decide whether it should nevertheless exercise its discretion to hear the case (Heiltsuk Horizon Maritime Services Ltd. v. Atlantic Towing Limited, 2021 FCA 26, [2021] F.C.J. No. 172 (QL/Lexis) at para. 74, citing Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342, 57 D.L.R. (4th) 231 at 353 (Borowski)).
[12] The appellants contend that despite their newly acquired permanent resident status, a tangible and concrete legal dispute subsists between the parties because they were not given the opportunity to seek Convention refugee status as a result of the ineligibility decision. They claim that permanent residents are more vulnerable to loss of status and deportation than Convention refugees are. Acquiring permanent resident status, they say, is one thing, but it does not resolve the underlying issue in this appeal, which concerns their eligibility to the greater protection of Convention refugee status.
[13] This argument is bound to fail as it collides with two recent decisions of this Court in which it was held that a grant of permanent residence on humanitarian and compassionate grounds renders an underlying judicial review relating to refugee status moot: N.O. v. Canada (Citizenship and Immigration), 2016 FCA 214, [2016] F.C.J. No. 963 (QL/Lexis) (N.O.) and Abel c. Canada (Citoyenneté et Immigration), 2021 CAF 131 (Abel). In N.O., the appellant was challenging the refusal, by the RPD, to reconsider an application to reopen the appellant’s refugee claim. The appellant wanted her refugee claim to be reopened on the basis that she had been forced by her co-refugee claimants not to testify about the sexual abuse she had suffered from a member of her family while in her country of nationality. The Court determined that the appellant’s appeal would have “no practical effect on her situation”
as she “no longer ha[d] the threat of deportation hanging over her”
, adding that while the appellant could, at some point, lose her permanent resident status, this was speculative and did not justify proceeding with an appeal otherwise moot (N.O. at para. 4).
[14] In Abel, the appellant had been excluded from refugee protection on the basis of Article 1E of the Refugee Convention, as he had been granted permanent resident status by his former country of residence. The issue in that case concerned the moment at which the appellant could be considered as having lost that status so that he could be relieved from the application of Article 1E and be permitted, thereby, to seek refugee status in Canada.
[15] A few weeks prior to the hearing, the appellant was granted permanent resident status in Canada. As in N.O., the Court ruled that the appellant’s appeal was now moot as he could no longer be deported from Canada. It reiterated that the mere fact the appellant could eventually lose his permanent resident status did not justify proceeding with the appeal (Abel at para. 12).
[16] The appellants urge the Court to override these two decisions on the basis that they do not properly account for the fundamental differences between permanent resident status and Convention refugee status. This argument must fail as well.
[17] It is trite that in the interests of certainty, consistency and predictability of the law, the Court normally follows its prior decisions (Miller v. Canada (Attorney General), 2002 FCA 370, 220 D.L.R. (4th) 149 at para. 9 (Miller)). It is only in “exceptional circumstances”
that it will overrule the decision of another panel. This will generally occur when “the previous decision is manifestly wrong, in the sense that the Court overlooked a relevant statutory provision, or a case that ought to have been followed”
(Miller at paras. 9-10).
[18] None of this can be said of N.O. or Abel. The appellants’ argument that refugee status would provide greater protection against removal was considered, but rejected, in Abel. As the Court noted in that case, permanent resident status confers essentially the same rights as Canadian citizenship, and protects those who hold it from refoulement in another country (Abel at para. 16). Here, the appellants’ newly acquired permanent resident status protects them from being removed to Uganda, Burundi, or any other country. Furthermore, there is no evidence on record suggesting that the appellants could face inadmissibility proceedings or deportation at some point in the foreseeable future.
[19] As the respondent points out, a claim that a live controversy or concrete dispute subsists based on a factual matrix that does not exist, can hardly be sustained.
[20] Having decided that the present matter is moot, the issue is now whether the Court should nevertheless exercise its discretion and decide the case, which is what the appellants are urging the Court to do. This issue requires the consideration of the following factors: (i) the absence or presence of an adversarial context; (ii) whether there is any practical utility in deciding the matter or if it is a waste of judicial resources; and (iii) whether the Court would be exceeding its proper role by making law in the abstract, a task reserved for Parliament (Canadian Union of Public Employees (Air Canada Component) v. Air Canada, 2021 FCA 67, [2021] F.C.J. No. 286 (QL/Lexis) at para. 9 (CUPE); see also Borowski at 358-363).
[21] Again, in both N.O. and Abel, the Court held that the factors that would justify hearing the appeal despite its mootness were absent. Despite this, the appellants submit, based on the fact that they came very close to being removed from Canada without any risk assessment, in spite of raising a fear of persecution, that “it is in the interest of justice for this appeal to be decided considering the fundamentally important nature of the legal issue and the high cost of leaving the issue undecided”
(Appellants’ Arguments Regarding Mootness at para. 13). They claim that the confusion they experienced regarding the interpretation of paragraph 101(1)(d) “will continue to wreak havoc upon future refugee claimants”
and calls out for a decision on the merits from this Court (Appellants’ Arguments Regarding Mootness, at paras. 17-18). Deciding this case on the merits, they say, would preserve precious judicial resources, as the appeal has already been heard and the issue it raises will certainly arise again if the matter is left unresolved.
[22] Similar arguments were considered, but dismissed, in Abel, where, as here, the matter was heard on the merits before being dismissed as moot. As the Court stated, vague references to the possibility of cases raising the same question at some point in the future are insufficient to justify the Court’s intervention (Abel at para. 19). The Court noted that it has, on many occasions, declined to decide moot issues notwithstanding the importance these issues may have had (Abel at para. 22). Furthermore, as was the case in Abel, the issue raised in the present appeal is not one which is elusive of appellate review (Abel at para. 19; see also N.O. at para. 5). In sum, the considerations advanced by the appellants in favour of deciding this appeal despite its mootness are outweighed by the need for the sound use of judicial resources.
[23] Finally, the appellants claim, based on the Federal Court’s decision in Thamotharampillai v. Canada (Solicitor General), 2005 FC 756, 274 F.T.R. 146 (Thamotharampillai), that there is no risk for the Court, in deciding the present matter on its merits, of usurping the law-making function of the legislative branch. I note that in that case, the Federal Court found the matter before it (a judicial review application of a negative pre-removal risks assessment) to be moot and declined to hear it despite its mootness. In deciding not to hear it, the Court was satisfied that hearing the appeal would “encroach[] on the proper law-making function of the Governor-in-Council”
(Thamotharampillai at para. 22). I fail to see how this decision assists the appellants. This is even more so since the appellants are silent on how this decision might assist them.
[24] Ultimately, the appellants are urging the Court to create a legal precedent. However, as recently reaffirmed by the Court, it is not the Court’s task to interpret legislation in a case with no practical consequences “just to create a legal precedent”
, as this would amount to “a form of law-making for the sake of law-making.”
(CUPE at para. 13).
[25] In the end, the principles governing the doctrine of mootness, as interpreted and applied by this Court, do not militate in favour of this Court exercising its discretion to decide this appeal on its merits.
[26] I would therefore dismiss the appeal, without costs.
"René LeBlanc"
“I agree.
Wyman W. Webb J.A.”
“I agree.
Anne L. Mactavish J.A.”
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