Date: 20040430
Docket: IMM-3313-02
Citation: 2004 FC 651
Ottawa, Ontario, this 30th day of April, 2004
PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE
BETWEEN:
NUBIA MARROQUIN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
O'KEEFE J.
[1] The applicant has made a motion for an order to:
a) allow the parties to submit further affidavits and memorandum;
b) allow cross-examination on any new filed affidavits as well as further cross-examination on the previously filed affidavits;
c) order a teleconference hearing for oral submissions after further memoranda and affidavits are filed and cross-examinations are complete.
[2] The applicant had made an application for judicial review to obtain a writ of mandamus compelling the respondent to make a decision on the applicant's permanent residence application
[3] The application for judicial review was heard, but before the decision was given, the applicant made this motion.
[4] The motion was prompted by the contents of a September 19, 2003 letter from the respondent to the applicant which read in part as follows:
RE: Affirmation of Request to seek the opinion of the Minister pursuant to
subsection 34(2) of the Immigration and Refugee Protection Act
You are hereby advised that Citizenship and Immigration Canada (CIC) possesses information indicating that you are inadmissible to Canada pursuant to subsection 34(1) of the Immigration and Refugee Protect Act of Canada (the Act). Consequently, there will be no further consideration of your application for permanent residence to Canada. However, it was understood by an Immigration Officer who interviewed you on May 28, 2003 that you would like Ministerial "relief" which, if granted, would allow your case to continue to be processed for permanent residence.
[5] The applicant submits that some of her arguments in support of a mandamus order being issued need to be rephrased in light of the changed situation. As such, she requests an opportunity to file a further affidavit and make further submissions to the Court.
[6] In response to the applicant's motion, the respondent submits that the applicant's mandamus application has been rendered moot by the decision communicated in the September 19, 2003 letter to the applicant. Therefore, the respondent submits that the mandamus application and the current motion should be dismissed. The respondent submits further that if the mandamus application is not moot, the relief sought by the applicant is not necessary in order for this Court to determine the mandamus application.
Issue
[7] Should the applicant's motion be granted?
Analysis and Decision
[8] The respondent raised the mootness issue in response to the applicant's motion to allow further affidavits and cross-examinations. I am not prepared to rule on the mootness of the main application in a motion such as this where the applicant is only seeking to be allowed to file further evidence, to conduct further cross-examinations and make further submissions.
[9] Submitted as evidence on the application for judicial review (the mandamus application), the cross-examination of Brian Huzel, the supervisor of the Citizenship and Settlements Units of the Canada Immigration Centre, Winnipeg, included the following statements regarding the expected time frame for processing the applicant's permanent residence application:
Q. All right. So it's now in Robert Fontaine's hands and according to this Affidavit, it would take another six to eight months from when? From the date he got it or from the date of your Affidavit?
A. From the date of the Affidavit.
Q. So that would get us, if we take the outside date, that would be October 6th, 2003, he would be finished by then.
A. Yes.
Q. Are there any further steps after that investigation?
A. It depends what the investigation discovers.
Q. Okay. What are some other possible scenarios?
A. Well, I guess the opposite extreme is that the person would have been found to have failed the security check and could be inadmissible to Canada.
Q. And that also - - would that be a determination that could follow from Robert Fontaine's investigation?
A. Yes.
Q. Would it be his determination to make?
A. Basically, yes.
[10] A review of the respondent's September 19, 2003 letter shows how the applicant's application was handled. The letter, which is not from Robert Fontaine, states that there would be no further consideration of the applicant's application for permanent residence to Canada because the respondent possessed information that indicated that the applicant was inadmissible to Canada pursuant to subsection 34(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA"). The applicant was given the opportunity to apply for Ministerial relief pursuant to subsection 34(2) of IRPA.
[11] Applicant's counsel states that in light of steps take by the respondent (the issuance of the letter dated September 19, 2003), he needs to file a further affidavit and to carry out further cross-examination and revise his arguments. The respondent counters that this is not necessary in order to decide the main mandamus application.
[12] On cross-examination on his affidavit, Mr. Huzel stated that he would determine admissibility before going to the Ministerial exception (subsection 34(2) of IRPA).
[13] In the circumstances of this case, I am of the opinion that the applicant should be granted the relief she seeks in this motion.
[14] If the parties are unable to agree on appropriate or suitable time lines for filing of further affidavits and the completion of any further cross-examinations, application may be made to the Court to fix a time line.
ORDER
[15] IT IS ORDERED that:
1. The parties are permitted to submit further affidavits and memoranda.
2. Cross-examination is allowed on any newly filed affidavits and that further cross-examination is allowed on the affidavits previously filed in this matter.
3. Further oral submissions may be made after further affidavits and cross-examination is completed and after any further memoranda are filed.
4. If the parties are unable to agree on appropriate or suitable time lines for filing of further affidavits and the completion of any further cross-examinations, application may be made to the Court to fix a time line.
"John A. O'Keefe"
J.F.C.
Ottawa, Ontario
April 30, 2004
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3313-02
STYLE OF CAUSE: NUBIA MARROQUIN
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Winnipeg, Manitoba
DATE OF HEARING: November 20, 2003
REASONS FOR ORDER AND ORDER OF O'KEEFE J.
DATED: April 30, 2004
APPEARANCES:
David Matas
FOR APPLICANT
Sharlene Telles-Langdon
FOR RESPONDENT
SOLICITORS OF RECORD:
David Matas
Winnipeg, Manitoba
FOR APPLICANT
Morris Rosenberg, Q.C.
Deputy Attorney General of Canada
FOR RESPONDENT
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