Date: 20071109
Docket: IMM-5938-06
Citation: 2007 FC 1168
Ottawa, Ontario, November 9, 2007
PRESENT: The Honourable Madam Justice Snider
PRESENT:
ALI HASSAN MADANI
Applicant
and
MINISTER OF PUBLIC
SAFETY AND
EMERGENCY
PREPAREDNESS
Respondent
REASONS FOR
ORDER AND ORDER
[1]
The Applicant, Ali Hassan Madani, was ordered to report for deportation
to Lebanon on November 14, 2006. On November 2, 2006, an
Enforcement Officer refused the Applicant’s request that his removal
from Canada on November 14, 2006 be deferred pending the processing of a
Humanitarian and Compassionate (H&C) application submitted October 26, 2006.
[2]
After the deferral request was denied, the Applicant 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. On November 10, 2006, Justice
Barnes ordered a stay of removal pending final determination of the judicial
review. As a result, the Applicant was not removed on November 14, 2006. Thus,
by the time this judicial review application was heard by this Court, the
serious issues identified in the stay motion and the underlying judicial review
were, in practical terms, academic.
[3]
This case is on all fours with the decision of Justice Gibson in Higgins
v. Canada (Minister of Public Safety and Emergency Preparedness), 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 FC 607 and Maruthalingam v. Canada (Minister of Public Safety and
Emergency Preparedness), 2007 FC 823). The parties before me acknowledge
that the matter is moot.
[4]
Nevertheless, the parties submit that the Court should exercise its
discretion and consider the merits of this application for judicial review. I
can see no purpose in doing so. The removal arrangements made for November 2006
are no longer relevant. No removal arrangements in respect of the Applicant are
currently in place. If a new removal date is scheduled for the Applicant, it
would again be open to him to request a deferral based on the facts that exist
as of that time. The Applicant would have this right whether or not I rule on the
merits of this judicial review.
[5]
In the circumstances, I decline to exercise my discretion to hear the
application on its merits.
[6]
As Justice Gibson did in Higgins, above, and in Vu v. Canada
(Minister of Citizenship and Immigration), 2007 FC 1109 and as I did in Maruthalingam,
above, 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:
1. The application for
judicial review is dismissed; and
2. 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”
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