Date: 20100317
Docket: IMM-5290-08
Citation: 2010 FC 304
Ottawa, Ontario, March 17,
2010
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
HIWOT
ASFAW MEKURIA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of the decision of an Officer with the
Minister of Public Safety and Emergency Preparedness dated October 9,
2008, wherein the Officer refused the Applicant’s Pre-Removal Risk
Assessment (PRRA) application. The Applicant seeks the following relief: that
the decision of the Minister be set aside and the matter be referred back for
re-determination by a differently constituted panel.
[2]
For
the reasons set out below this application has been rendered moot by the
removal of the Applicant from Canada. There is no longer a live issue between
the parties and the Court declines to exercise its discretion to decide the
matter on the merits (see Borowski v. Canada (Attorney
General),
[1989] 1 S.C.R. 342; [1989] S.C.J. No. 14).
I. Background
[3]
The
Applicant is a citizen of Ethiopia that has been to Canada six times. She
has a Canadian born daughter who is not a party to this application.
[4]
On
her fifth visit to Canada in May 2006, the Applicant made a refugee
claim. She withdrew this claim in October 2007 and opted not to have a Pre-Removal
Risk Assessment (PRRA) conducted. The Applicant voluntarily left Canada for Ethiopia in December
2007. Approximately one month later, the Applicant left Ethiopia for the
Unites States. She did not make a refugee claim in the United States. In February
2008, the Applicant applied to extend a visitor’s visa previously issued to her
for entry into Canada. The request was denied.
[5]
The
Applicant made a second refugee claim in July 2008. This second claim was
rejected pursuant to subsection 101(1)(c) of the Immigration and Refugee
Protection Act, R.S. 2001, c. 27 (IRPA). The Applicant was invited
to submit a PRRA and did so based on domestic violence and her membership
in a particular political group. The PRRA application was refused on
October 9, 2008. The Applicant sought leave for judicial review of
the PRRA Officer’s decision.
[6]
The
Applicant was ordered to be removed on January 8, 2009 and the Applicant
brought a stay of her removal to this Court. On January 7, 2009, Justice
Michael Kelen dismissed the stay on the basis that there was no irreparable
harm (Mekuria v. Canada (Citizenship and
Immigration Canada), IMM-5290-08 (January 7, 2009). The Applicant
was removed from Canada.
[7]
On
December 14, 2009, the Applicant’s application for leave was granted.
II. Analysis
[8]
The
parties agree that this matter is moot. The Respondent argued this point in
their Memorandum of Fact and Law and the Applicant stated at paragraph 3 of their
Further Memorandum of Argument that “The Applicant is no longer in Canada. Accordingly,
the matter is moot”. As stated above, I agree.
[9]
As
set out in Borowski, above, the Court has the discretion to decide the
matter even if it is moot. In Borowski, above, the Supreme Court of
Canada set out three issues to consider when determining if the Court should
exercise this discretion. These can be summed up as (1) the presence of an
adversarial context; (2) the concern for judicial economy, and (3) the need for
the court to be sensitive to its role.
[10]
The
Applicant argues that the Court should exercise its discretion based on the
best interests of the Applicant’s Canadian born child. The Applicant argues
further that the destination of removal was the United States when the
stay of removal was argued. The Applicant is now in Ethiopia and it is in the
interests of justice to hear the case as the focus of the irreparable harm was
not the harm in Ethiopia but in the United States.
[11]
The
Respondent argues that the Court should not exercise its discretion. I agree
[12]
In
declining to exercise my discretion, I rely on this Court’s decisions in Rana
v. Canada (Minister of Citizenship and Immigration), 2010 FC 36, Sogi v.
Canada (Minister of Citizenship and Immigration), 2007 FC 108; [2007]
F.C.J. 158, Perez v. Canada (Minister of Citizenship and Immigration),
2008 FC 663; 328 F.T.R. 290, Ero v. Canada (Minister of Citizenship and
Immigration), 2002 FCT 1276; 226 F.T.R. 311. In these cases, the Court was
faced with similar issues as here – that the Applicant had been removed from Canada prior to the
hearing of their application for judicial review.
[13]
In
this matter, I am satisfied that an adversarial context still exists between
the parties. However, the existence of an adversarial context does not outweigh
the other two issues set out in Borowski, above.
[14]
These
issues, the conservation of judicial resources and the importance of not
departing of the courts role as the adjudicative branch, were discussed by Justice
Luc Martineau in Perez, above. I agree with his conclusions and apply
them to this case. Specifically, that a moot issue should not unduly take up
judicial resources, that a re-determination order may establish a new category
of persons in need of protection, that what was once a legal action of the
government (the enforcement of the removal order) may become illegal afterwards
simply by judicial dicta, and that a hearing of the judicial review in this
instance may, in essence, amount to an indirect review of the merits of Justice
Kelen’s discretionary decision with regard to the stay.
[15]
A
further consideration is that I cannot grant a practical remedy in this case -
while I may set aside the decision of the Officer, I cannot order a new PRRA be
undertaken (see Ero, above, at paragraphs 26-27). The purpose of a PRRA,
as set out in paragraph 31 of Sogi, above, is to assess the risks before
the removal, not after.
[16]
In
this case, the Applicant’s daughter is a Canadian citizen and is not under any
removal order. While it is normally best for children to remain with their
parents, I note that the child has immediate family in Canada who can care
for her, and have already done so.
[17]
At
the time of the stay application, the Applicant was to be deported to the United
States.
The fact that the United States subsequently sent the Applicant to Ethiopia is beyond
the reach of this Court and does not persuade me that I should exercise my
discretion to hear the matter.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
1. this application is dismissed;
and
2. there is no order as to costs.
“ D.
G. Near ”
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