Date: 20110321
Docket: IMM-2641-10
Citation: 2011 FC 345
Ottawa, Ontario, March 21, 2011
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
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MOYA MECKESHA CAMPBELL
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application for judicial review of the decision of Enforcement Officer D.
Puzeris (the Officer) dated May 10, 2010, wherein the Applicant was denied a
deferral of her removal pursuant to section 48 of the Immigration and
Refugee Protection Act, RS 2001, c 27 [IRPA].
[2]
Based
on the reasons below, the application is dismissed.
I. Background
A. Factual
Background
[3]
Moya
Meckesha Campbell (the Applicant) first came to Canada in 2004 on a student visa. On November 18,
2006, she claimed refugee status on the basis of feared abuse at the hands of
her former boyfriend. Her claim was refused on August 21, 2007 when she was
found not to be credible. She sought judicial review and was denied leave on
January 28, 2008.
[4]
She
filed an application for permanent residence on humanitarian and compassionate
grounds (H&C) on September 24, 2007, and on May 28, 2008 she sought a
Pre-Removal Risk Assessment (PRRA); both were refused in October 2008. On
November 24, 2008, the Applicant was directed to report for removal. On
November 25, 2008, she filed applications for judicial review of both the
H&C and PRRA decisions, and on December 15, 2008 her removal was stayed
pending the outcome of the applications. She was denied leave to seek review of
the PRRA decision on April 8, 2009, and her application for judicial review of
the H&C decision was dismissed on June 30, 2009.
[5]
The
Applicant met her husband after her arrival in Canada. They were married in May 2008. She
applied for permanent residency as a member of the in-Canada spousal class on
May 14, 2008 with her husband as her sponsor.
[6]
On
April 29, 2010, the Applicant was directed to appear for removal as all of her
applications for leave and for judicial review had been concluded and her
removal was no longer stayed. The removal was scheduled for May 14, 2010. On
May 6, 2010, she requested a deferral of her removal since her spousal
sponsorship application was still outstanding. The request was refused on
May 10, 2010, and that refusal is the subject of this application for
judicial review.
[7]
On
May 14, 2010, Justice Yves de Montigny granted a stay of the Applicant’s
removal pending the outcome of this application.
[8]
On
August 19, 2010, the spousal sponsorship application was refused. The Applicant
is seeking leave to review that decision (court file IMM-5288-10).
B. Impugned
Decision
[9]
The
Officer noted that the sponsorship application had been outstanding for 24
months, but concluded that there was insufficient evidence that a decision was
imminent. The Officer also concluded that the Applicant did not qualify for an
administrative deferral because she had been deemed removal ready, and sent a
call-in notice for a removal interview, before her sponsorship application was
received. The Officer noted that the Applicant had not provided any new
evidence of risk and that the alleged risk had been rejected in both her
refugee claim and her PRRA. Finally, the Officer considered the policy objective
of family reunification, but concluded that a removal would not necessarily
result in the Applicant’s permanent separation from her spouse.
II. Issue
[10]
The
Applicant argues that the Officer breached procedural fairness and that the
decision is unreasonable. The Respondent submits that, since her spousal
sponsorship application has been refused, there is no live issue for this court
to decide.
[11]
In
my view, the only issue for the Court to decide is:
(a) Is this
application for judicial review moot?
III. Mootness
[12]
The
leading decision on the law of mootness is Borowski v Canada (Attorney General), [1989] 1 S.C.R. 342, 57
DLR (4th) 231. In Borowski, the Supreme Court adopted a two-step
analysis: first determining whether there remains a live controversy, and then
determining whether the Court should exercise its discretion to hear the case
even though it has become moot. There are three factors that a court should
consider in deciding whether to exercise its discretion to hear a moot case:
whether the dispute retains its adversarial nature, judicial economy and
whether special circumstances warrant the use of scarce judicial resources to
resolve a moot issue, and the separation of powers and the lawmaking function
of the courts.
[13]
This
Court applied Borowski, above, in Rahman v Canada (Minister of Citizenship
and Immigration), 2002 FCT 137, 216 FTR 263 wherein Prothonotary John A. Hargrave
summarized the Borowski test before finding that an application for
mandamus had become moot when Mr. Rahman became a permanent resident.
IV. Argument
and Analysis
A. The
Issue is Moot
[14]
The
Applicant challenges the decision on the grounds that the Officer ignored
evidence, based the decision on outdated and incorrect information, and reached
an unreasonable conclusion. The Applicant argues that the Officer relied on an
outdated estimate of when the sponsorship application would be processed, when
a more recent estimate submitted by the Applicant suggested that a decision
would be forthcoming in approximately four months. The Applicant also argues
that the Officer ignored the lengthy delay in processing the application, which
resulted from a backlog of files and from no fault of the Applicant. Finally,
the Applicant argues that the Officer’s decision that she did not qualify for
an administrative deferral was unreasonable because the sponsorship application
had been received before she attended a removal interview.
[15]
All
of these issues are moot since the sponsorship application has now been
refused. The Respondent cites Baron v Canada (Minister of Public
Safety and Emergency Preparedness), 2009 FCA 81, [2010] 2 FCR 311. In Baron,
the Court of Appeal answered the following certified question:
Where an applicant has filed an
application for leave and judicial review challenging a refusal to defer
removal pending a decision on an outstanding application for landing, and a
stay of removal is granted so that the person is not removed from Canada, does
the fact that a decision on the underlying application for landing remains
outstanding at the date the Court considers the application for judicial review
maintain a ‘live controversy’ between the parties, or is the matter rendered
moot by the passing of scheduled removal date?
[16]
In
determining that the passage of a scheduled removal date did not render the
review of a deferral decision moot, the Court of Appeal characterized the
controversy between the parties as being the underlying decision. The Court
stated that, so long as that underlying decision was pending, the controversy
remained live.
[17]
In
the present matter, the underlying decision was the sponsorship application.
That application is no longer pending. It is clear that there is no live
controversy and that this application is moot. Although the court retains the
discretion to hear a moot application, this application does not warrant an
exercise of this discretion.
V. Conclusion
[18]
No
question was proposed for certification and none arises.
[19]
In
consideration of the above conclusions, this application for judicial review is
dismissed.
JUDGMENT
THIS COURT’S JUDGMENT is
that this application for judicial review is dismissed.
“ D. G. Near ”
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