Date: 20090224
Docket: IMM-1120-08
Citation: 2009 FC 197
Toronto, Ontario, February 24,
2009
PRESENT: The Honourable Madam Justice Heneghan
BETWEEN:
TANWEER AHMED, SHAZIA SHAMS,
ARHUM AHMED, and BILAL AHMED
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
Introduction
[1]
Mr.
Tanweer Ahmed, his wife Shazia Shams and their sons Bilal Ahmed and Arhum Ahmed
(collectively the “Applicants”) seek judicial review of the decision of Kristen
Smyth, Enforcement Officer, Canada Border Services Agency (the “Enforcement
Officer”) dated March 5, 2008. In this decision, the Enforcement Officer
denied the Applicant’s request to defer their removal from Canada. A temporary
stay of removal was granted on March 12, 2008, by Deputy Judge Frenette,
allowing them to stay in Canada until July 30, 2008.
Background
[2]
The
Applicants, citizens of Pakistan, arrived in Canada on February
4, 2003 and filed claims for refugee protection on the same day. Their claims
for refugee protection were ultimately denied on February 7, 2006. Leave for
judicial review in that regard was denied on May 31, 2006.
[3]
On
September 15, 2006, the Applicants filed an application for permanent residence
in Canada on
humanitarian and compassionate grounds (“H & C application”). That
application remains outstanding.
[4]
On
November
25, 2006,
the Applicants filed a Pre-Removal Risk Assessment (“PRRA”) application. On January 15, 2008, they were
advised that their application had been refused.
[5]
On
January
24, 2008,
the Applicants received a Direction to Report with removal scheduled for March 11, 2008.
[6]
On
February
4, 2008,
the Applicants requested a deferral of their removal. On February 19, 2008,
Counsel for the Applicants asked when a decision on the deferral request could
be expected. Counsel advised that he needed a speedy request due to his
personal travel plans. Although Counsel was told on February 22, 2008 that a
decision was expected before the end of the next week, no decision was received
until March 4, 2008.
[7]
Early
on March
4, 2008,
Counsel for the Applicants was advised that the deferral request had been
refused. A written decision was faxed to Counsel later on March 4. On March 6,
2008, Counsel for the Applicants received the Enforcement Officer’s Notes to
File, together with an amended decision dated March 5, 2008. The Notes to File
showed that the Enforcement Officer had consulted the Overseas Medical Services
and relied upon information provided by that Service, without advising the
Applicants of that information and without providing them with an opportunity
to respond. The information related to the provision of adequate medical care
and drug treatment, as well as the availability of prescription on medication.
[8]
The
Notes of the Enforcement Officer show that, among other things, she concluded
that the Applicants had not shown that Ms. Shams would not have access to the
medical services available in Pakistan.
[9]
The
Applicants argue that the Enforcement Officer erred by misinterpreting the
evidence before her and also, that she breached the rules of procedural
fairness by relying on extraneous material without having provided them with
the opportunity to respond.
[10]
The
Minister of Citizenship and Immigration (the “Respondent”) submits that the
matter is moot and there are no grounds to justify the exercise of discretion
to hear it on its merits.
Discussion and
Disposition
[11]
The
matter is indeed moot since the Applicants received a temporary stay and the
date of removal is passed; see Baron v. Canada (Minister of
Public Safety and Emergency Preparedness) (2008), 69 Imm. L.R.
(3d) 293. However, the question of procedural fairness is not subject to the
principles of mootness; see Level (Litigation Guardian) v. Canada (Minister of
Public Safety and Emergency Preparedness) (2008), 324 F.T.R. 71
(F.C.):
Both parties urged the Court not to
dismiss this application for mootness. I do think the case is moot since, at
this point of time as a result of the stay, there is no effective removal
order. However, I agreed to consider this principle of procedural fairness
since it is an important point of contention between the parties and is not
moot in that respect. At the same time, I do not agree that this matter raises
a serious issue of general importance that has not already been decided by the
jurisprudence. In my view, the jurisprudence has established unequivocally that
the duty of procedural fairness applies to important extrinsic evidence being
relied upon by an administrative decision maker regardless of whether it is
with respect to a decision not to defer the removal or to some other decision
under the IRPA. For that reason, I will not certify any question in this
application.
[12]
I
adopt and apply this same reasoning here. For this reason, this application for
judicial review is allowed and the decision of the Enforcement Officer is
quashed. There is no question for certification arising.
[13]
I
note that the Applicant has named the Minister of Citizenship and Immigration
as the Respondent. The correct Respondent is the Minister of Public Safety and
Emergency Preparedness and an Order will issue to amend the style of cause.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that the
application for judicial review is allowed, there is no question for
certification arising.
Further, the
Court orders that this style of cause be amended to show the Minister of Public
Safety and Emergency Preparedness as the Respondent.
“E. Heneghan”
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