Date: 20070807
Docket: IMM-2353-06
Citation: 2007
FC 823
Ottawa, Ontario,
August 7, 2007
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
NAGENDRAR MARUTHALINGAM
PONNAMMAH MARUTHALINGAM
Applicants
and
THE MINISTER OF PUBLIC SAFETY AND EMERGENCY
PREPAREDNESS
Respondent
REASONS FOR ORDER AND ORDER
[1] The
Applicants, Nagendrar Maruthalingam and Ponnammah Maruthalingam, were ordered
to report for deportation to Sri Lanka on May 12, 2006. On May
4, 2006, an Enforcement Officer refused the Applicants’ request that
their removal from Canada on May 12, 2006 be deferred.
[2] After
the deferral request was denied, the Applicants then filed a notice of
application for leave and judicial review of the Enforcement Officer’s decision
and brought a motion for a stay of their removal until the Court had disposed
of the application for judicial review. By Order dated May 8, 2006, the motion
for a stay was granted. As a result, the Applicants were not removed on May 12,
2006. Thus, by the time this judicial review application was heard by this
Court, the serious issues identified in the stay motion were, in practical
terms, academic.
[3] This
case is on all fours with the decision of Justice Frederick Gibson in Higgins
v. Canada (Minister of Public Safety and Emergency Preparedness),
[2007] F.C.J. No. 516, 2007 FC 377 where a similar application was dismissed on
the ground of mootness (see also Solmaz v. Canada (Minister of
Public Safety and Emergency Preparedness), [2007] F.C.J. No. 819). For the
reasons expressed by Justice Gibson, I conclude that this application for
judicial review should be dismissed.
[4] At
this point in time, as a result of the stay, there is no effective removal
order. (In passing, I note that this fact would not change even if I were to
allow the judicial review application.) Accordingly, a removal could only take
place if a new removal order is issued or new travel arrangements are made and
communicated to the Applicants. In this regard, I endorse the comments of
Justice Gibson on the continuing rights of the Applicants (Higgins, at
para. 18):
Further, it is beyond question
that, if the Respondent remains determined to remove the Applicant before his
humanitarian and compassionate grounds application is determined, it would be
open to the Applicant to request a new deferral of removal, based on all of the
current circumstances and evidence and, if that request is denied, a further
application for leave and for judicial review would be open to him together
with a further motion before this Court seeking a stay of removal pending the
final determination of that new application for leave and for judicial review.
[5] In
seeking to have me consider the merits of this application, the Applicants
argue that failing to rule on the substance of the application may result in
repetitive stay motions. I do not agree. Once the initial removal date has
passed without removal, new arrangements for deportation must be made. The
right of an applicant to request a deferral and seek judicial review and a stay
of the refusal of an enforcement officer to defer removal will arise whenever
new arrangements are made. In cases such as that before me, whether this Court
has ruled on the merits of the original deferral request or not does not change
this right.
[6] The
Applicants raised the issue of whether the Court should still rule that the
issue was moot where it was asked to stay the removal until the outcome of
another process. In this decision, I am not opining on whether the Court could
grant a remedy to the Applicants on a free-standing basis. More specifically, I
am not expressing a view on whether this Court could order that the Applicants
not be removed until the final determination of their outstanding application
on humanitarian and compassionate grounds. There is no need to address this
argument; such a remedy was not sought by the Applicants whose sole request was
that the matter be referred to another enforcement officer for reconsideration.
[7] The
Applicants request that I certify the same question as that certified by
Justice Gibson in Higgins, above (by Order dated April 17, 2007).
Although the Respondent opposes the certification of any question, I believe
that the issue of mootness is one of general importance that is determinative
of this application for judicial review. Accordingly, I will certify the
following question:
Where an applicant has filed an
application for leave and judicial review of a decision not to defer the
implementation of a removal order outstanding against him or her, does the fact
that the applicant’s removal is subsequently halted by operation of a stay
Order issued by this Court render the underlying judicial review application
moot?
ORDER
This Court orders
that:
- The application for judicial
review is dismissed; and
- The following question is
certified:
Where an
applicant has filed an application for leave and judicial review of a decision
not to defer the implementation of a removal order outstanding against him or
her, does the fact that the applicant’s removal is subsequently halted by
operation of a stay Order issued by this Court render the underlying judicial
review application moot?
“Judith A. Snider”
___________________________
Judge
Email this Content