Docket: IMM-11546-23
Citation: 2024 FC 1808
Vancouver, British Columbia, November 14, 2024
PRESENT: Mr. Justice Diner
BETWEEN: |
EMILY OWIE |
OSASOGIE IVAN OWIE |
NELSON OSAIVBIE OWIE |
KELLY ESEOSA OWIE |
WHITNEY IMUETINYANOSA OWIE |
Applicants |
and |
THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent |
JUDGMENT AND REASONS
I. Overview
[1] The Respondent filed a motion in writing, dated October 10, 2024, pursuant to Rule 369(1) of the Federal Courts Rules, for an Order:
a)granting the Application for Leave and for Judicial Review [ALJR];
b)setting aside the decision of the Senior Immigration Officer [Officer] rendered on August 11, 2023 [Decision], and referring the matter back to the tribunal for reconsideration and re-determination in accordance with the law;
c)providing the Applicants with an opportunity to make additional submissions; and
d)awarding no costs to either party.
[2] The Applicants, in their responding motion record filed October 21, 2024, oppose the motion brought by the Respondent, arguing that the Respondent failed to respond to all of the arguments raised in the Applicants’ Further Memorandum of Argument.
[3] After review of the submissions contained in the Parties’ motion records, I directed that a hearing be set down in order for the Parties to expand upon certain aspects of the underlying motion and matter which were unclear in the written submissions and motion records, and/or required elaboration from the underlying judicial review. The oral arguments by both Parties were heard on November 4, 2024.
[4] I pronounced my Judgment in this matter at the conclusion of hearing of this motion, promising these formal reasons to follow.
II. Reasons
[5] The Respondent agreed that there were three fundamental errors in the underlying Pre‑removal Risk Assessment [PRRA] Decision, as asserted by the Applicants in this judicial review. At the hearing of the motion, the Respondent expanded on those three errors, beyond the vague explanations set out in the motion materials. The three fundamental errors are summarized as follows:
The Officer erred by failing to conduct a proper internal flight alternative [IFA] analysis pursuant to the test set out in Rasaratnam v Canada (Minister of Employment and Immigration), 1991 CanLII 13517 (FCA), [1992] 1 FC 706 (CA) and Thirunavukkarasu v Canada (Minister of Citizenship and Immigration), 1993 CanLII 3011 (FCA), [1994] 1 FC 589 (CA), and failed to conduct and assess the first and second prong of the IFA test. Rather, the Respondent acknowledges that the Officer made a general assessment on the IFA issue. In addition, the Officer did not explicitly identify a proposed IFA city that would be available to the Applicants, but rather made general references to cities and regions in Nigeria.
The Officer unreasonably applied the state protection analysis, in terms of failing to sufficiently assess personal and objective country condition evidence that was available to the Officer. The Officer also unreasonably considered whether state protection was adequate to the Applicants on an operational level, given the circumstances of the claimants.
The Officer gave the hospital report of May 28, 2014 low probative value due to the fact that the abductors were not named in that hospital report. The Officer unreasonably, however, failed to provide any explanation or justification as to why failing to name the abductors would result in low probative value for the said medical report.
[6] Counsel for the Respondent argues that, by conceding that their client made three fundamental errors in the underlying PRRA Decision, this judicial review application has been rendered moot.
[7] I entirely agree. The three errors that the Respondent has conceded to have occurred in the Decision are determinative in warranting reconsideration of the PRRA application, without needing to make findings on the other points raised by the Applicants.
[8] Despite its mootness, the Applicants requested the Court hear and decide the judicial review application on its merits, given parts of the arguments made upon judicial review that the Applicants felt went unaddressed in the Respondent’s agreement to send the matter back for redetermination by a different officer. Prior to the motion hearing, the Parties were directed to Yusuf v Canada (Minister of Public Safety and Emergency Preparedness), 2024 FC 1454 [Yusuf], a recent decision of the Court that neither party had raised in their written materials. I see no reason not to rely on and adopt Justice Norris’s comments at paragraphs 20-21 and 25 of Yusuf:
[20] The respondent now moves for an order allowing the application on the basis of its consent. While the applicant opposes this motion, the parties do agree on this much: the … decision is unreasonable, it should be set aside, the matter should be remitted for redetermination, and, if the matter is to be redetermined, the applicant should have an opportunity to provide further evidence and submissions to the new decision maker. This agreement renders all of these issues moot: there is no longer a live controversy over them that the Court must resolve (Borowski v Canada (Attorney General), [1989] 1 S.C.R. 342 at 353-54).
[21] These are not the only issues raised in the underlying application for judicial review, however. The applicant raises other matters that are not the subject of agreement between the parties. Nevertheless, I am satisfied that it would not be a sound use of limited judicial resources to allow the application to proceed to a hearing and disposition in the usual manner. This is because the additional issue the applicant wishes to pursue concerning the reasonableness of the decision is also moot. Furthermore, it is plain and obvious that the preconditions for the additional relief the applicant is seeking are absent.
[…]
[25] […] The respondent has not suggested that the next decision maker will be constrained in any way by the earlier determination. As well, concerns over judicial economy weigh decisively against the Court addressing this question despite its mootness (Borowski, at 360-61). As the Federal Court of Appeal has emphasized, “mootness in judicial reviews has assumed new prominence in light of the recent encouragement given to reviewing courts to avoid needless hearings” (Public Service Alliance of Canada v Canada (Attorney General), 2021 FCA 90 at para 6).
[9] These legal principles, and indeed the factual situation, reviewed in this extract of Yusuf are equally apropos in this case. Indeed, constraints on the judiciary are particularly pronounced in a year where the Court is expected to receive 24, 000 or so immigration ALJRs. To put that number in perspective, it would mean nearly a 50% increase over 2023 filings at the Court, and a quadrupling of the average volume over the five years immediately prior to the pandemic.
[10] After all, the Federal Courts Rules, SOR/98-106 [Rules], are guided by the general interpretation provision which stipulates that:
General principle
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Principe général
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3 These Rules shall be interpreted and applied
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3 Les présentes règles sont interprétées et appliquées :
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(a) so as to secure the just, most expeditious and least expensive outcome of every proceeding; and
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a) de façon à permettre d’apporter une solution au litige qui soit juste et la plus expéditive et économique possible;
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(b) with consideration being given to the principle of proportionality […]
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b) compte tenu du principe de proportionnalité […]
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[11] The Federal Court of Appeal has noted repeatedly that judges are encouraged to apply the Rules in ways that prevent, eliminate or minimize conduct that causes delay and cost (see for instance Lukács v Canada (Public Safety and Emergency Preparedness), 2023 FCA 55 at para 9 and Viiv Healthcare Company v Gilead Sciences Canada, Inc, 2021 FCA 122 at para 18).
[12] As in this case, where Respondent’s counsel - which is also directly impacted by this surge in immigration matters as the representative of the Minister and of the public interest - is willing to not only concede that errors were made by the Officer but also to specify the precise nature of those errors for the record, proceeding to a full hearing of the application is simply not warranted. It would add to inefficiencies, delays and costs, rather than minimize them. As a result, I will not exercise my discretion under Borowski v Canada (Attorney General), [1989] 1 S.C.R. 342 to hear the matter despite its mootness (see para 25 of Yusuf in the extract above at paragraph 9 of these Reasons).
[13] I accept the Applicants’ frustration that this is the third time their matter has come before this Court via an ALJR. I note, however, that on the two previous occasions, the litigation was resolved between counsel when they discontinued proceedings before this Court and the Applicants agreed to refile their PRRA application. As a result, neither of these two prior instances resulted in any order from the Court, including any observations about the deficiencies of those prior decisions.
[14] Applicants’ counsel argued for costs under Rule 22 of the Federal Courts Citizenship, Immigration and Refugee Protection Rules, SOR/93-22 based on two special reasons he feels are present, namely (a) this was the third PRRA that was made, and also because (b) his client had to bring a stay motion, with the Respondent arguing that a serious issue did not exist, but then subsequently conceded that there was indeed a serious issue, including during this motion.
[15] Regarding (a), this Court has been clear that special reasons do not arise merely because the Minister elected to exercise his statutory right to challenge an application for judicial review of a decision and is not successful (Shekhtman v Canada (Citizenship and Immigration), 2018 FC 964 at para 44). Justice Turley recent reiterated this principle at paragraphs 28–29 of Godday v Canada (Citizenship and Immigration), 2023 FC 1360, finding that returning a humanitarian and compassionate application for a fourth time due to overlooking key evidence (as in part occurred in this Decision) did not qualify as special reasons warranting costs.
[16] Regarding (b), the Applicants received their PRRA refusal on September 13, 2023, and filed their ALJR the same day. They received their Direction to Report on September 26, 2023, with their deportation scheduled for October 17 2023. They filed their stay of deportation motion before this court on October 4, 2023. Justice Fuhrer of this Court heard and issued the stay order on October 10 2023. The Applicants only subsequently perfected their ALJR on October 13, which was after the stay proceedings. That was Respondent’s counsel’s first opportunity to see the Applicants’ Record. I see nothing inappropriate in the conduct of Respondent’s counsel, who less than two weeks after receiving the record, submitted an offer to settle. In today’s proceedings, a year later, Respondent’s counsel has continued to act in a matter that facilitates rather than hinders the most just, expeditious and efficient result.
[17] Given these circumstances and for the reasons explained above, I decline to issue costs. Having so decided, I have provided specificity in my Judgment to ensure the three errors made in the PRRA Decision are not repeated. Should that happen, the Applicants will have a solid basis to seek special costs in the event of future litigation.
III. Conclusion
[18] After considering the various elements of fact and law argued before the Court in this motion, the Respondent will be granted the relief requested, namely that the that the ALJR is granted, the matter will be returned for redetermination by a different PRRA officer for the three reasons set out herein, the whole without costs.
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