Date: 20090914
Docket: IMM-34-09
Citation: 2009 FC 907
Ottawa, Ontario, September 14, 2009
PRESENT: The
Honourable Mr. Justice Zinn
BETWEEN:
PATRICIA
IRABOR
Applicant
and
MINISTER
OF PUBLIC SAFETY AND
EMERGENCY
PREPAREDNESS
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application for judicial review of an
Enforcement Officer’s decision on December 23, 2008, rejecting the Applicant’s
request for a deferral of her removal to Nigeria. When the matter came before the Court for hearing the Respondent
took the position that the application was moot and ought to be dismissed.
After hearing both counsel I indicated to the parties that it was my view that
the application was moot but that I would hear submissions on whether I ought
to exercise my discretion and hear the application on its merits. Having considered
the able submissions of counsel, I have determined that I will not exercise my
discretion to hear the application on its merits. The following are brief
reasons for the finding that the application is moot and for refusing to hear
the application on its merits.
[2]
On August 18, 2005, Ms. Irabor applied for a
work permit under the Live-in-Caregiver program. This application was refused
on August 18, 2005, and leave to judicially review the decision was denied by
this Court on December 28, 2006.
[3]
Nonetheless, Ms. Irabor came to Canada on July 12, 2006. An
Inadmissibility Report was prepared and signed on August 16, 2006, pursuant to
subsection 44(1) of the Immigration and Refugee Protection Act, S.C.
2001, c. 27, on the grounds that she had entered Canada with an intention to
establish permanent residence, without first applying for or obtaining the
proper visa, as is required by the Act. A departure order was made and, on the
same day, Ms. Irabor submitted a refugee claim.
[4]
The refugee claim was based on allegations of
spousal abuse by her common law partner. She has consistently reiterated these
allegations in a subsequent Pre-Removal Risk Assessment (PRRA) application, and
in the current application for judicial review. Ms. Irabor alleges that she
was subjected to multiple instances of physical and sexual violence by Chief
Chinedu Ugo, her common law partner. She alleges that despite multiple reports
to the police she received no state protection. She states that she fled Nigeria because she feared that Chief
Chinedu Ugo would kill her. She also states that her relationship with Chief
Chinedu Ugo caused her to contract HIV.
[5]
The Refugee Protection Division (RPD) found Ms.
Irabor’s evidence on her relationship with Chief Chinedu Ugo to be not credible
as were her allegations of abuse. The RPD concluded that Ms. Irabor was not a
Convention refugee or person in need of protection. An application for
judicial review of that decision was denied by this Court on April 8, 2008.
[6]
On June 30, 2008, Ms. Irabor filed a PRRA
application. This application was rejected on October 20, 2008. The Officer
considered the allegations of abuse that were reiterated, as well as the new
submissions of Ms. Irabor’s HIV status and the risk that return to Nigeria posed
to her health. The Officer determined that persons living with HIV are
subjected to discrimination and stigma in Nigeria but that this did not necessarily rise to the level of persecution
in the given circumstances. The Officer also determined that Ms. Irabor had
failed to rebut the presumption of state protection. Consequently, Ms.
Irabor’s PRRA was rejected.
[7]
On December 1, 2008, Ms. Irabor signed a
Direction to Report for a scheduled removal on January 10, 2009. A request to
defer removal pending an application for leave and judicial review of the PRRA
decision was made on December 23, 2008. This request was rejected the same
day, and it is from this decision that the Applicant seeks judicial review.
[8]
On January 7, 2009, Justice O’Keefe, granted a
motion to stay Ms. Irabor’s removal until her PRRA leave application was
denied, or if leave was granted, then until the application had been dealt with
by the Court.
[9]
On June 10, 2009, the Court granted leave to
judicially review the refusal of the deferral request – the application now
before this Court. On June 22, 2009, Justice Mandamin dismissed Ms. Irabor’s
application for leave and extension of time to judicially review the negative
PRRA decision and accordingly, the stay Order granted by Justice O’Keefe no
longer has any effect since leave to review the PRRA decision was rejected.
Since leave was rejected there is no outstanding Court Order preventing the removal
of the Applicant.
[10]
The Applicant’s request was for a deferral of removal
pending the outcome of the PRRA leave request (buttressed by the “new” medical
evidence). Given that the PRRA leave request is now settled – having been
denied – I am of the view that this application is moot. The remedy sought in
this application was to refer the matter back to an enforcement officer to
redetermine the deferral request. Given that the deferral request was a
deferral pending the happening of an event that has now occurred, there is no
longer any purpose to be served by adjudicating on this matter. The
application is moot.
[11]
The Applicant submits that while there is no
longer a live controversy between the parties, there remains an adversarial
relationship between them and that the Court ought to exercise its discretion
and hear the merits of the application. In Borowski v. Canada (Attorney
General), [1989] 1 S.C.R. 342, the Supreme Court held that when deciding
whether to exercise discretion to hear a matter, notwithstanding that it is
moot, the judge should consider three factors: (1) the existence of an
adversarial relationship between the parties; (2) the concern for judicial
economy; and (3) the need for the Court not to intrude into the legislative
sphere. The Applicant submits that only the first two of these factors are
present on these facts.
[12]
The Applicant submits that there remains an
adversarial relationship between the parties in that they are of the view that there
is “new” evidence consisting of the letter regarding the Applicant’s HIV status
that was not before the PRRA Officer, that the Applicant may seek a second PRRA
on the basis of this letter, and that a determination by this Court on the
merits of the current application may short-circuit such an application and
result in a saving of judicial resources.
[13]
In spite of counsel’s submissions in this
respect, I am unconvinced that any of the conditions established in Borowski
are met.
[14]
It is clear from the Enforcement Officer’s
decision that he considered this “new” evidence. His observation was that it
is not new and was of questionable authenticity.
According to counsel, the note is evidence not available at the time
of the PRRA application. However, insufficient evidence was presented to
indicate why, since the subject has been diagnosed with HIV since December 2006
and has been receiving treatment at the Centre since February, 2007, she could
not have obtained such a note for submission with her PRRA application.
Moreover, I note that the copy of the note provided by counsel is not signed
and does not indicate from whom the note has been written by, thus rendering
its authorship dubious.
[15]
I fail to see how a decision on the application
currently before this Court will change those facts. Whether the Applicant submits
a new PRRA application or not, with the existing note or a new one, the issue
of delay will still arise. Nothing this Court does in this application will
change that fact. Accordingly, this is not an appropriate case for the Court
to excerise its discretion to hear the merits of an application that is moot.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that the application is moot and is hereby dismissed.
“Russel W. Zinn”
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