Date: 20040714
Docket: IMM-3119-03
Citation: 2004 FC 950
Vancouver, British Columbia, July 14, 2004
Present: THE HONOURABLE MR. JUSTICE BEAUDRY
BETWEEN:
MAHADEVAN SINNADURAI
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
AMENDED REASONS FOR ORDER AND ORDER
(amending my Reasons for Order and Order dated July 2, 2004)
[1] This in an application for judicial review of the decision of the Refugee Protection Division of the Immigration Refugee Board (Board) dated April 3, 2003, wherein the Board determined that the Applicant was not a Convention refugee nor a person in need of protection.
[2] The Respondent's motion to dismiss the application for judicial review is granted for the following reasons.
[3] In his application for judicial review of the contested decision, the Applicant alleged a well-founded fear of persecution of the Sri Lankan Armed Forces and the Liberation Tigers of Tamil Elam (LTTE) because of his race, nationality, political opinions and membership in a particular social group, namely Tamil from Jaffna. He also alleged that he is a person in need of protection.
[4] On September 27, 1998, the Applicant arrived in Canada. On June 28, 1999, the Convention Refugee Determination Division (CRDD) found that the Applicant was not credible and did not have a well-founded fear of persecution. On October 29, 1999, this Court dismissed the Applicant's application for leave. On November 20, 2001, the Applicant went to the United States. He returned to Canada on February 20, 2002. He claimed refugee status the same day. Leave application was granted following the negative decision of April 3, 2003.
[5] Because the Applicant stayed in the United States for a period of about three months before coming to Canada in February 2002, the Respondent, in conformity with paragraph 231(3)b) of the Immigration and Refugee Protection Regulations, SOR/2002-227, began to take steps to remove the Applicant to the United States.
[6] The evidence provided by the Respondent confirms the fact that the Applicant voluntarily left Canada on his own for Sri Lanka and purchased his airline ticket with a valid passport obtained in February 2004. The Applicant's departure was confirmed on March 4, 2004.
[7] The Respondent argues that the Applicant's actions have rendered the matters raised in his application wholly academic. It would therefore be appropriate for this Court to exercise its discretion to decline to hear the matter, by summarily dismissing the application for judicial review.
[8] On the other hand, counsel for the Applicant filed an affidavit from the Applicant's niece in which she states that she knew that her uncle was afraid to return to the United States because a deportation order was made against him there to be returned to Sri Lanka. She also adds that her uncle called her a while ago and told her that he was in Singapore. She is not sure of his status in Singapore but do know that Sri Lankans do not need a visa and that they can stay there for 15 days. Afterwards, they can go to Malaysia. It is her impression that her uncle selected the flight to Colombo so that he may have a transit through Singapore to stay there. She does believe that her uncle will return to Canada if he is successful with his refugee claim.
[9] The Applicant has twice asked Canada for protection because if he were to be returned to Sri Lanka, he would be mistreated and possibly killed. By voluntarily purchasing his airline ticket, obtaining on his own a valid passport from the Sri Lankan authorities in Canada and confirming his departure to Colombo, I conclude that the Applicant's actions have rendered the issues raised by his application for judicial review wholly academic.
[10] There is no longer a live controversy before this Court in the Applicant's application for judicial review (Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342; Bouslimani v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 336 (T.D.) (QL)).
[11] As Tremblay-Lamer J. said in Bouslimani, supra, I am unable to find any exceptional circumstances that could make it possible for this Court to exercise its discretion and decide a case that has become moot.
[12] The Applicant submits the following question for certification:
Under what circumstances does the acceptance by a foreign national of an offer of voluntary departure in lieu of deportation made by the Minister of Citizenship and Immigration have the effect of rendering a pending application for judicial review under the Immigration and Refugee Protection Act made by that foreign national moot?
[13] The Applicant argues that there is very little jurisprudence from the Federal Court or Federal Court of Appeal on the relationship between mootness and an applicant's absence from Canada and because the Court's decision on it stands now could have a broad impact on the Minister's voluntary departure programme which was intended to help reduce the costs to taxpayers of removals.
[14] The Respondent opposes such a question because it does not transcend the interest of the immediate parties or contemplate issues of broad significance or general application.
[15] I agree with the Respondent. There is no evidence here that the immigration officer offered to the Applicant to return to his country of origin. Since I have concluded that it was the Applicant's voluntary departure that rendered his application wholly academic, there is no need to certify such a question.
ORDER
THE COURT ORDERS that the motion is granted. The Applicant's application for judicial review is dismissed. No question is certified.
"Michel Beaudry"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3119-03
STYLE OF CAUSE: MAHADEVAN SINNADURAI v.
MINISTER OF CITIZENSHIP AND
IMMIGRATION
PLACE OF HEARING: Montreal, Quebec
DATE OF HEARING: June 29, 2004
AMENDED REASONS FOR THE HONOURABLE MR. JUSTICE
ORDER AND ORDER: BEAUDRY
DATED: July 14, 2004
APPEARANCES:
Pia Zambelli FOR APPLICANT
François Joyal FOR RESPONDENT
SOLICITORS OF RECORD:
Viken Artinian FOR APPLICANT
Montréal (Quebec)
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada
Montreal (Quebec)
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