Date: 20110121
Docket: IMM-2529-10
Citation: 2011 FC 76
Montréal, Quebec, January 21, 2011
PRESENT: The Honourable Mr. Justice Martineau
BETWEEN:
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MINISTER OF PUBLIC SAFETY AND EMERGENCY
PREPAREDNESS
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Applicant
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and
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SHO-SILVA NOSA
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The
applicant challenges the legality of the Immigration Division of the
Immigration and Refugee Board (the Tribunal)’s decision dated April 9, 2010
(the Decision), to release Sho-Silva Nosa/Nosa Sho-Silva (Nosa) from detention,
on the grounds that the Decision is based on irrelevant factors, ignores
relevant factors and previous detention review decisions, and that the Tribunal
substituted its own opinion for that of the Minister.
[2]
Nosa
arrived in Ottawa on December
9, 2009, on an American passport with the name Mavis Idemudia and the birth
date February 17, 1982. In response to questioning, Nosa gave his name as Noah
Sho-Silva, date of birth July 28, 1980. He had no supporting documents
confirming that name.
[3]
Nosa
informed the Canadian authorities that he had left Nigeria on December
1, 2009, and flew to San Francisco. He went by car to
Sacramento and then flew from Los Angeles to Chicago and then to Ottawa. He used his
Nigerian travel documents for the flight to the United States and then
purchased supplementary documents for approximately $4,000 to come to Ottawa.
[4]
Nosa
claimed asylum at the Canadian border on the basis that his house had burnt
down and his family was killed in the fire. However, Nosa had a cell phone on
him with text messages making reference to a wife giving birth or about to give
birth in Italy. He claimed
that the cell phone was not his.
[5]
As
a result of the above, Nosa was detained for 48 hours due to serious doubts as
to his identity.
[6]
At
the 48-hour detention review, the Tribunal determined that Nosa was somewhat
helpful with the investigative efforts and that the Canadian Border Services
Agency (CBSA) was making reasonable efforts to establish Nosa’s identity, in
the context of a 48-hour detention. Nosa was detained for a further seven (7)
days.
[7]
On
December 18, 2009, the Tribunal found that the Minister had made reasonable
efforts and that Nosa was co-operating as best he could. Given the Minister’s
reasonable efforts, detention was continued.
[8]
On
January 14, 2010, the Tribunal found that CBSA had made some efforts to
establish Nosa’s identity. The Tribunal also found that it had seen “a lot
better” than Nosa’s collaboration and that within this context, CBSA’s efforts
were reasonable. For example, at this point, Nosa was still alleging that he
had never been in Italy. Furthermore, when asked to provide his
Facebook account password, he provided one that did not work.
[9]
On
February 11, 2010, the Tribunal reviewed evidence that Nosa had been in Italy and had made
conflicting visa applications. The Tribunal concluded that the Minister should
have been more diligent since the last hearing but that the Minister’s efforts
were reasonable, given Nosa’s lack of collaboration.
[10]
On
March 11, 2010, the Tribunal concluded that Nosa’s collaboration had improved
since the last hearing but that he still was only divulging information in a
piecemeal fashion, which was hindering CBSA’s efforts. For example, Nosa
revealed that his family name was Nosa, rather than Sho-Silva, as previously
thought. On this basis, CBSA’s efforts were found to be reasonable and the
detention was continued.
[11]
Finally,
on April 9, 2010, the Tribunal found that Nosa had been co-operating as of late
to establish his identity, namely in providing his Nigerian passport. The
passport had been determined to be genuine on April 8, 2010, but there was no
conclusion as to whether it had been properly issued. The Tribunal discussed
the 4-month delay in getting the verification of Nosa’s fingerprints from the
American authorities and found that it had not been adequately explained. The
Tribunal also discussed the delay in hearing back from Interpol regarding
Nosa’s presence in Italy. Consequently, the Minister’s efforts were
deemed unreasonable.
[12]
The
Tribunal ordered Nosa’s release on April 9, 2010, subject to three (3)
conditions:
- The
Respondent was to report to the CBSA office nearest his residence within
72 hours of release;
- The
Respondent is to report to the CBSA office nearest his residence once per
month thereafter;
- A
bond of $3,000 was to be deposited by Norman Griffiths.
[13]
The
Minister was dissatisfied with these conditions, but chose to seek leave for
judicial review rather than request that the conditions be modified. The
Minister then requested on July 7, 2010, that the conditions be modified.
However, on November 17, 2010, the request to change the release conditions was
rejected, on the basis that the release order was not the subject of a stay
before the Federal Court and that there was no reason to modify the conditions.
[14]
It
is the Tribunal’s Decision of April 9, 2010, that is before this Court today.
[15]
Before
addressing the substance of the application for judicial review, the Court
addresses the respondent’s claim that the application for judicial review was
filed out of time and that as no motion was filed for an extension, it should
be rejected.
[16]
The
respondent bases his argument on subsection 72(2) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (IRPA). This argument
clearly fails, however, as per its own wording. The provision provides that:
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Application
for judicial review
72.
(1) Judicial review by the Federal Court with respect to any matter — a
decision, determination or order made, a measure taken or a question raised —
under this Act is commenced by making an application for leave to the Court.
Application
(2)
The following provisions govern an application under subsection (1):
(a)
the application may not be made until any right of appeal that may be
provided by this Act is exhausted;
(b)
subject to paragraph 169(f), notice of the application shall be served on the
other party and the application shall be filed in the Registry of the Federal
Court (“the Court”) within 15 days, in the case of a matter arising in
Canada, or within 60 days, in the case of a matter arising outside Canada,
after the day on which the applicant is notified of or otherwise becomes
aware of the matter;
(c)
a judge of the Court may, for special reasons, allow an extended time for
filing and serving the application or notice;
(d)
a judge of the Court shall dispose of the application without delay and in a
summary way and, unless a judge of the Court directs otherwise, without
personal appearance; and
(e)
no appeal lies from the decision of the Court with respect to the application
or with respect to an interlocutory judgment.
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Demande
d’autorisation
72.
(1) Le contrôle judiciaire par la Cour fédérale de toute mesure — décision,
ordonnance, question ou affaire — prise dans le cadre de la présente loi est
subordonné au dépôt d’une demande d’autorisation.
Application
(2)
Les dispositions suivantes s’appliquent à la demande d’autorisation :
a)
elle ne peut être présentée tant que les voies d’appel ne sont pas épuisées;
b)
elle doit être signifiée à l’autre partie puis déposée au greffe de la Cour
fédérale — la Cour — dans les quinze ou soixante jours, selon que la mesure
attaquée a été rendue au Canada ou non, suivant, sous réserve de l’alinéa
169f), la date où le demandeur en est avisé ou en a eu connaissance;
c)
le délai peut toutefois être prorogé, pour motifs valables, par un juge de la
Cour;
d)
il est statué sur la demande à bref délai et selon la procédure sommaire et,
sauf autorisation d’un juge de la Cour, sans comparution en personne;
e)
le jugement sur la demande et toute décision interlocutoire ne sont pas
susceptibles d’appel.
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(Emphasis
added).
[17]
Paragraph
169(f) of the IRPA states as follows:
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Decisions and
reasons
169. In the
case of a decision of a Division, other than an interlocutory decision:
(a) the
decision takes effect in accordance with the rules;
(b) reasons
for the decision must be given;
(c) the
decision may be rendered orally or in writing, except a decision of the
Refugee Appeal Division, which must be rendered in writing;
(d) if the
Refugee Protection Division rejects a claim, written reasons must be provided
to the claimant and the Minister;
(e) if the
person who is the subject of proceedings before the Board or the Minister
requests reasons for a decision within 10 days of notification of the
decision, or in circumstances set out in the rules of the Board, the Division
must provide written reasons; and
(f) the
period in which to apply for judicial review with respect to a decision of
the Board is calculated from the giving of notice of the decision or from the
sending of written reasons, whichever is later.
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Décisions
169.
Les dispositions qui suivent s’appliquent aux décisions, autres
qu’interlocutoires, des sections :
a)
elles prennent effet conformément aux règles;
b)
elles sont motivées;
c)
elles sont rendues oralement ou par écrit, celles de la Section d’appel des
réfugiés devant toutefois être rendues par écrit;
d)
le rejet de la demande d’asile par la Section de la protection des réfugiés
est motivé par écrit et les motifs sont transmis au demandeur et au ministre;
e)
les motifs écrits sont transmis à la personne en cause et au ministre sur
demande faite dans les dix jours suivant la notification ou dans les cas
prévus par les règles de la Commission;
f) les
délais de contrôle judiciaire courent à compter du dernier en date des faits
suivants : notification de la décision et transmission des motifs écrits.
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(Emphasis
added).
[18]
Section
2 of the IRPA defines “Board” as “the Immigration and Refugee Board,
which consists of the Refugee Protection Division, Refugee Appeal Division,
Immigration Division and Immigration Appeal Division”. The Decision was issued
by the Immigration Division, so the decision is subject to section 169 of the IRPA,
unless the decision is interlocutory.
[19]
A
decision is either final or interlocutory. Subsection 2(1) of the Federal
Courts Act, R.S.C. 1985, c. F-7, stipulates that a final judgment is any
judgment or any decision that determines in whole or in part any substantive
right of any of the parties in controversy in any judicial proceeding. An
interlocutory decision, which is not defined, is thus one that does not
determine any substantive right.
[20]
The
right to release from detention is a substantive right, and as such, the
Decision is a final one, rather than an interlocutory one. This analysis is
confirmed by the Guide to Proceedings Before the Immigration Division,
which stipulates that following a detention review hearing, a member must
render a decision under section 58 of the IRPA and provide reasons in
accordance with paragraph 169(b) of the IRPA, a provision which does not
apply to interlocutory decisions.
[21]
The
written reasons for the Decision were received by the Minister on April 21,
2010. The application for judicial review was filed on May 6, 2010. In light of
the above, section 169 of the IRPA applies, meaning that the application
was filed in the appropriate timeframe. The respondent’s argument is thus rejected.
[22]
Turning
to the substance of the application, the standard of review of the Decision
would be reasonableness with respect to the Tribunal’s assessment of the
evidence, and correctness with respect to the Tribunal’s interpretation of
section 58 of the IRPA (Canada (Minister of Public Safety and
Emergency Preparedness) v Iyile, 2009 FC 700 at para 31).
[23]
However,
such an analysis is unnecessary, as the question before the Court is moot and
the Court declines to exercise its discretion to decide the matter regardless.
The application for judicial review is thus dismissed for the following
reasons.
[24]
The
leading authority on whether or not an application for judicial review is moot
is Borowski v Canada (Attorney General), [1989] 1 S.C.R. 342 at para 16,
in which the Supreme Court establishes the test to be undertaken when
confronted with the possibility thereof:
The approach in recent cases
involves a two-step analysis. First it is necessary to determine whether the
required tangible and concrete dispute has disappeared and the issues have
become academic. Second, if the response to the first question is affirmative,
it is necessary to decide if the court should exercise its discretion to hear
the case (…).
[25]
As
mentioned previously, the Tribunal ordered Nosa’s release on April 9, 2010,
subject to three (3) conditions:
a.
The
Respondent was to report to the CBSA office nearest his residence within 72
hours of release;
b.
The
Respondent is to report to the CBSA office nearest his residence once per month
thereafter;
c.
A bond of
$3,000 was to be deposited by Norman Griffiths.
[26]
While
the Minister submits that these conditions are disproportionate to the
Minister’s opinion as to Nosa’s identity and the fact that the Tribunal found
Nosa to be a flight risk, the Minister did not seek to have Nosa’s release
stayed, nor to have the conditions altered to make them more restrictive until
after Nosa had been released. The result is that Nosa was released over nine (9)
months ago, subject to the aforementioned conditions.
[27]
The
Minister would now have this Court grant the motion for judicial review of the
Tribunal’s decision to release Nosa. The applicant’s reasons in support of this
request pertain to the process taken by the Tribunal member and her evaluation
of the evidence before her, which would be reasonable, were Nosa still in
detention. However, given the Minister’s failure to have Nosa’s release stayed,
this approach is insufficient.
[28]
Paragraph
58(1)(d) of the IRPA provides that a foreign national shall be released
“unless the Minister is of the opinion that the identity of the foreign
national has not been, but may be, established and they have not reasonably co-operated
with the Minister by providing relevant information for the purpose of
establishing their identity, or the Minister is making reasonable efforts to
establish their identity”. This passage is written in the present tense: the
foreign national shall be released unless the above conditions are met at the
specific moment in time.
[29]
Given
the language of the paragraph, evidence of the Minister’s position nine months
ago is no longer relevant: it is current information that is required.
Nonetheless, the Minister’s memorandum provides no information as to the
Minister’s investigation into Nosa’s identity that would allow this Court to
judge that Nosa’s identity is still not established to the Minister’s
satisfaction, and that his detention is required.
[30]
Furthermore,
if there were still a problem with Nosa’s identity, or if Nosa were to violate
the conditions of his release, the CBSA could obtain a warrant for his arrest
and detain him. However, there is no evidence submitted that Nosa has violated
the conditions of his release, nor that the CBSA has had any further dealings
with Nosa.
[31]
It
is common practice in such situations for the Minister to obtain a stay of the
Tribunal’s decision to release the person (see Canada (Minister of Public
Safety and Emergency Preparedness) v Ouerk, 2008 FC 167; Canada (Minister of
Citizenship and Immigration) v Zhang, [2001] F.C.J. No. 795,
2001 FCT 522). The Minister failed to obtain a stay of release, and, in
consequence, is now asking for something of no practical use. In other words,
the issue has become academic.
[32]
The
Court also declines to exercise its discretion to hear the application, as the
second stage of the Borowski test is not met. The three (3) criteria are
as follows:
- The
presence of an adversarial context;
- The
concern for judicial economy; and
- The
need for the Court to be sensitive to its role as the adjudicative branch
in our political framework.
[33]
The
application does not satisfy the first or the second criterion. First, there is
no evidence before the court of a continuing adversarial relationship between
Nosa and the Minister. Second, there is no compelling reason for the Court to
hear this application that trumps the concern for judicial economy. It is not a
question of general importance, nor a question that is unlikely to ever arise
without being moot, due to an inherently short time duration (as the release order
can be stayed). Therefore, the application for judicial review is dismissed on
the basis of mootness.
JUDGMENT
THE
COURT’S JUDGMENT IS that the application for judicial review is dismissed.
No question is certified.
“Luc Martineau”
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