Date: 20090918
Docket: IMM-938-09
Citation: 2009 FC 931
Montréal,
Quebec, September 18, 2009
PRESENT: The Honourable Maurice E. Lagacé
BETWEEN:
WILLIAM
RAMA
Applicant
and
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondents
REASONS FOR JUDGMENT AND
JUDGMENT
I. Introduction
[1]
The applicant is seeking under subsection
72(1) of the Immigration and Refugee Protection
Act, S.C. 2001, c. 27 (Act), the judicial review
of the decision dated February 19, 2009, by the Immigration Division
of the Immigration and Refugee Board (the panel),
continuing his detention for identity verification purposes.
[2]
He is seeking to quash the detention order and
to obtain a declaratory judgment from the Court clarifying the Act, the Immigration
and Refugee Protection Regulations (Regulations), and the Immigration
Division Rules (Rules of Practice).
II. Facts
[3]
The
applicant’s illegal entry into Canada was discovered on December 26, 2008, when
the ship on which he had travelled, the Vega Eternity, arrived in the Port of
Montréal.
[4]
After
having searched the applicant on board the ship, on December 29, 2008, officers
concluded that he had no identity documents in his possession. During the interview
with the officers, the applicant claimed refugee status, prompting them to
order his immediate detention at the Immigration Prevention Centre for identity
verification.
[5]
At
hearings held on December 31, 2008, January 7, 2009, and January 30, 2009,
concerning the review of the applicant’s detention, the panel recognized that
the Minister had made reasonable efforts to establish the applicant’s identity,
but that these were unfortunately unsuccessful. The panel then ordered that the
applicant be kept in preventive detention, which was not contested at the time.
[6]
At
the fourth hearing looking into the same matter on February 19, 2009, the panel
once again recognized that the Minister had, since the previous review, made
reasonable efforts to establish the applicant’s identity, but had unfortunately
still been unsuccessful. As a result, the panel ordered the applicant be kept
in detention, but this time he decided to challenge the decision and, on
February 26, 2009, to apply to the Court for a judicial review seeking to quash
the order and obtain a stay pending a decision of the Court on the merits.
[7]
The
stay application was heard and dismissed by the Court on March 18, 2009, while
the application on the merits, which the Court is asked to rule on, was finally
heard on August 25, 2009. However, at the fifth hearing on March 19, 2009,
during which the detention order was reviewed, the panel finally decided to
order the applicant’s conditional release, although his identity had still not
been established.
[8]
In
spite of his release, the applicant is still seeking to quash his detention
order and is asking the Court for a declaratory judgment clarifying the Act, the
Regulations and the Rules of Practice.
III. Issue
[9]
The
applicant agrees that his application to quash the preventive detention order
is moot since the panel ordered his release on March 19, 2009.
[10]
The
Court is therefore called upon only to rule on the application for a
declaratory judgment interpreting the Act, the Regulations and the Rules
of Practice.
IV. Analysis
[11]
The
Court notes that this application does not specify in any way what kind of
clarification is sought, nor which provisions or sections are to be clarified. The
task that the applicant is asking the Court to take on is enormous and undefined.
[12]
The
applicant’s conclusions are inadequate and too general; that, in and of itself,
is reason enough to reject them. In addition, the applicant in no way contests
the legality of the legislative and regulatory provisions. He is asking the
Court to interpret the Act, the Regulations and the Rules of Practice in an
abstract way and without having provided evidence on the application and
interpretation of the texts by the panel. He does not even indicate precisely
which provisions of the Act, the Regulations or the Rules of Practice he would
like interpreted.
[13]
It is not the
role of the Court to rule in the abstract on the procedure applicable to hearings
held by the panel. The vagueness of the application alone calls for its
dismissal.
[14]
In other respects
and aside from the way the application was formulated, the Court seems to
understand from the applicant’s allegations and arguments that he is taking
issue with the panel for not granting him a fair and equitable hearing since
the Minister’s representative apparently did not submit any of the documents on
which he was relying to the panel, nor did he call any of the immigration
officers as witnesses to corroborate the facts cited before the panel at
hearings on the review of his continued detention. He complains that the
Minister’s representative acted as both witness and litigant, and that in doing
so deprived him of his right to cross-examine witnesses. He also claims having
been deprived of his defences, since prior to the hearings he allegedly did not
have access to the documents relied on to support his continued detention.
[15]
We
note, however, that the applicant did not challenge the procedure followed by
the panel at the hearings on December 31, 2008, January 7, 2009, and January
30, 2009. It was only after the decision rendered on February 19, 2009, when
his identity had still not been established, that he suddenly decided to launch
a challenge.
[16]
It
must be remembered that the application to quash the detention order is moot
since the applicant’s release on March 19, 2009. At this stage, only the
application for a declaratory judgment is relevant.
[17]
Furthermore,
given his release, the applicant no longer has standing to ask the Court to
rule on a right or an obligation pursuant to the Act, its Regulations and the
Rules of Practice regarding the complaints against the Minister’s
representative.
[18]
The
Court is not called upon to rule, since its decision would have no effect on
the rights of the parties (Borowski v. Canada (Attorney General),
[1989] 1 S.C.R. 342).
[19]
In
principle, the Court will not render a declaratory judgment when the matter is,
as in this case, moot (Lena v. The Kent Institution, 2004 FC
192).
V. Conclusion
[20]
For
these reasons, the Court finds that the application to quash the preventive
detention order is now moot, that the applicant no longer has standing to seek
a declaratory judgment and that, furthermore, this application is inadmissible
in its present form.
[21]
Both
applications will therefore be dismissed. And since no question of general
importance was proposed or merits being proposed, no question will be certified.
JUDGMENT
FOR THESE REASONS, THE
COURT:
DISMISSES the
application for judicial review as well as the application for a declaratory
judgment.
‘‘Maurice
E. Lagacé’’
Certified
true translation
Sebastian
Desbarats, Translator
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