Date: 20090306
Docket: IMM-4011-08
Citation: 2009
FC 243
BETWEEN:
UWADIAE OSAGHAE
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
HARRINGTON J.
[1]
When it
comes to Mr. Osaghae, it is most difficult to separate fact from fiction. On
arrival here in 2006, he sought protection and said he fled his native Nigeria for two reasons, somewhat
intertwined. His mother was killed in 2002 in a land dispute and he had reason
to fear the same fate at the hands of the murderers. The other reason is that
he is bisexual. Homosexuality is illegal in Nigeria. The men involved in the land dispute
came to his office and outed him, leading to social ostracization. He also
mentioned that during a good part of 2003 through 2005 he was in an American
prison.
[2]
Contrary
to that assertion, in his Personal Information Form filed in support of his
refugee claim he said he was Nigeria from 2000 through to 2006 and
even gave the name of his employer. In both instances, however, he said he was
in Nigeria in 2002 when his mother was
allegedly murdered. His application for refugee status was declared abandoned,
and this Court refused to grant him leave to have that decision reviewed.
[3]
He was later
declared inadmissible due to serious criminality. He had been convicted outside
Canada of an offence that if
committed here would have constituted an offence punishable by a maximum term
of imprisonment of at least ten years. He was still entitled to a PRRA, but
limited to an assessment of risk under section 97 of the Immigration and
Refugee Protection Act, not section 96.
[4]
The PRRA
officer determined that he would not be at risk of torture, risk to life or
risk of cruel treatment or punishment due to his sexual orientation if returned
to Nigeria. Although sodomy is a
criminal offence, the officer carried out a detailed analysis which was not
unreasonable and should not be disturbed.
[5]
With
respect to the land dispute, the officer pointed out that internal relocation
to avoid ill-treatment from non-state agents is almost always an option in Nigeria. She also found that there
was no evidence to indicate that any person would be interested in targeting
him if he returned to Nigeria and that being ostracized by his
family was irrelevant. This finding is also reasonable and so the application
for judicial review will be dismissed.
[6]
Although
the above reasons are enough to dispose of the application, the Minister
submitted there were two reasons why I should not have considered the judicial
review on its merits. They were the equitable doctrine of “clean hands” and
mootness. In Thanabalasingham v. Canada (Minister of Citizenship and
Immigration),
2006 FCA 14, 51 Imm. L.R. (3d) 1, the Court of Appeal disagreed with the
Minister’s proposition that if it is determined an applicant has come to Court
with unclean hands then the Court must refuse to hear or grant the relief
sought on its merits. In speaking for the Court, Mr. Justice Evans pointed out
that the Court may dismiss an application without proceeding to the merits
or even though having found reviewable error decline to grant relief [my
emphasis.]. He
said:
[10] In
exercising its discretion, the Court should attempt to strike a balance
between, on the one hand, maintaining the integrity of and preventing the abuse
of judicial and administrative processes, and, on the other, the public
interest in ensuring the lawful conduct of government and the protection of
fundamental human rights. The factors to be taken into account in this exercise
include: the seriousness of the applicant's misconduct and the extent to which
it undermines the proceeding in question, the need to deter others from similar
conduct, the nature of the alleged administrative unlawfulness and the apparent
strength of the case, the importance of the individual rights affected and the
likely impact upon the applicant if the administrative action impugned is
allowed to stand.
[11] These
factors are not intended to be exhaustive, nor are all necessarily relevant in
every case. While this discretion must be exercised on a judicial basis, an
appellate court should not lightly interfere with a judge's exercise of the
broad discretion afforded by public law proceedings and remedies. …
[7]
The
events giving rise to the “clean hands” and mootness submissions occurred after the negative
PRRA decision. Upon apprehending Mr. Osaghae in preparation for his removal it
was discovered that he was actually living with a woman with whom he had
fathered two children. Mr. Osaghae sought, and was granted, leave to pursue
this judicial review. That decision did not have the effect of deferring his
removal and so he sought a stay of the Removal Order pending final disposition
of this judicial review.
[8]
His stay
application came before Mr. Justice Hughes. In addition to his sexual
inclination, the Minister submitted that Mr. Osaghae lied as to his whereabouts
from 2003 to 2005. Evidence from the United States was produced which appears
to establish that he was in prison there, as indeed he had stated when he first
arrived in Canada. It was further submitted,
however, that his first declaration was not before the PRRA officer. Mr.
Osaghae’s counsel was granted an adjournment to seek instructions on this
point, but no clarifying affidavit was forthcoming.
[9]
Mr. Justice
Hughes refused to grant a stay. He said:
…
AND UPON determining that the Applicant mislead
the Respondent and was not forthcoming as to his incarceration in the United
States and the period from 2003 to 2005 and that he was living with a woman in
an heterosexual relationship, not a gay lifestyle;
AND UPON concluding that the Applicant has not
come to this Court with clean hands …
… The motion for a stay is dismissed.
[10]
Later,
counsel for the Minister recanted the submission that the Port of Entry Notes
were not before the PRRA Officer, then produced an affidavit wherein that
Officer swore that although the information was in the file she paid no
attention to it. This puts quit to the presumption that an Officer has read
everything in a file (Florea v. Canada (Minister of Employment and
Immigration), [1993] F.C.J. No. 598 (QL)).
[11]
All this
caused Mr. Osaghae’s counsel to invoke another maxim of equity: “those who seek
equity must do equity”. Mr. Justice Hughes’ refusal to grant a stay of removal
was based on standards quite different from those applicable in judicial
reviews. In RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3
S.C.R. 199, 187 N.R. 1, the Supreme Court made it clear that Motions Judges are
often called to render interlocutory orders in the heat of the moment, and
without benefit of a full record. Suffice it to say I do not think the
circumstances of this case warrant a refusal to consider the merits of the application
on the grounds that Mr. Osaghae does not come to the Court with clean hands.
[12]
The mootness
argument is based on a number of decisions of this Court. The purpose of a PRRA
is to assess the risks to the applicant before his removal to his homeland, not
after it. The fact is that Mr. Osaghae was removed against his will to Nigeria in December 2008. The cases
are reviewed by Mr. Justice Martineau in Perez v. Canada (Minister of Citizenship and
Immigration),
2008 FC 663, 328 F.T.R. 290. Although a PRRA application normally gives rise to
a statutory stay of removal until it is decided, section 232 of the Immigration
and Refugee Protection Regulations sets out a number of exceptions. Due to
his serious criminality, one of the listed exceptions, Mr. Osaghae was never
entitled to a statutory stay. Others have lost their statutory stay for a
transgression no more serious than a lawyer’s office failing to file their
application on time (Chukwudebe v. Canada (Minister of Citizenship and
Immigration)
2009 FC 211).
[13]
Section
160 and following of the said Regulations provide that the applicant is
nevertheless entitled to a PRRA. Mr. Osaghae’s counsel submits that Perez, above,
and the cases that preceded it, are either wrongly decided or distinguishable
on the facts. For instance Perez does not deal with sections 160 and
following of the Regulations. What is the point of an express declaration that
one is entitled to a PRRA, notwithstanding there is no statutory stay and one
has the right to seek leave to have a negative decision reviewed pursuant to
IRPA and the Federal Courts Act? Can those rights be rendered
moot by a decision of an Enforcement Officer under section 48 of IRPA to remove
the person involved?
[14]
In
Perez, above, Mr. Justice Martineau certified the following questions in
order to support an appeal to the Federal Court of Appeal:
a)
Is an application for
judicial review of a Pre-Removal Risk Assessment moot where the individual who
is the subject of the decision has been removed from or has left Canada after an application for a stay of removal has been
rejected?
b)
What factors or
criteria, if different or additional to those elucidated in Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342 at p.358-363,
should the Court consider in the exercise of its discretion to hear an
application for judicial review that is moot?
c)
If a judicial review
of a Pre-Removal Risk Assessment is successful after the applicant has been
removed from or has left Canada, does the Court have the authority to order the
Minister to return the applicant to Canada pending re-determination and, as the
case may be, at the cost of the government?
The appeal is scheduled to be heard in Montréal on 26 May
2009.
[15]
Whatever
the decision in appeal might be, if the issue is moot I still have discretion
to hear it, and I have done so. Because three discrete issues were argued, the
merits, clean hands, and mootness, I informed the parties that I would issue my
reasons before the order so as to give the party who turned out to be
unsuccessful an opportunity to pose a serious question of general importance.
Mr. Osaghae shall have until Tuesday, 17 March 2009 to file such question(s)
with the Toronto Registry and the Minister shall have until Monday, 23 March 2009
to respond.
“Sean Harrington”
Ottawa,
Ontario
March
6, 2009
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