Date: 20080303
Docket: IMM-1046-07
Citation: 2008 FC 274
Ottawa, Ontario, March 3, 2008
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
ALMIR
KOLENOVIC
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Mr. Almir Kolenovic was scheduled to be removed from Canada to
his country of origin, Montenegro, in March 2007. He had asked an immigration
enforcement officer to defer his removal, given that he had an outstanding
application to re-open his unsuccessful claim for refugee protection, had
requested a second pre-removal risk assessment, had recently submitted an
application for humanitarian and compassionate relief, was receiving treatment
for post traumatic stress disorder, and was afraid to return to Montenegro. The
officer refused. Mr. Kolenovic submits that the officer erred and asks me to
order the officer to reconsider.
[2]
Subsequent to the request for deferral, Justice Roger Hughes granted Mr.
Kolenovic a stay of execution of the removal order pending a decision on his
application to re-open his refugee claim. On August 8, 2007, the Immigration
and Refugee Board (IRB) refused that application.
[3]
Mr. Kolenovic did not attend the hearing of this application for
judicial review on January 16, 2008. Nor did he communicate with the Court to
request an adjournment or explain his absence. Counsel for the respondent
described unsuccessful attempts to serve Mr. Kolenovic with a Book of
Authorities on the day prior to the hearing. In the circumstances and with the
agreement of the respondent, I undertook to decide this application on the
basis of the materials filed. Attached is a transcript of the proceedings on January
16, 2008.
[4]
The respondent’s position is that these proceedings are moot, given that
Mr. Kolenovic, in effect, has already obtained the relief he was seeking from
the enforcement officer – he was permitted to remain in Canada to pursue his
application before the IRB. I agree with the respondent that this application
for judicial review is moot and will exercise my discretion not to decide it.
I. Issue
[5]
Is this application for judicial review moot, given that Mr. Kolenovic
was permitted to remain in Canada pending his application to re-open his
refugee claim?
II. Analysis
[6]
Mr. Kolenovic’s principal argument relates to the failure of the officer
to grant him a deferral pending a decision of the IRB. Even if I were to
conclude that Mr. Kolenovic’s position should prevail, the remedy to which he
would be entitled would be a reconsideration of his request for a deferral
until the IRB rendered its decision. But the IRB has already rendered
its decision. There is no point asking another officer to grant Mr. Kolenovic’s
request. These circumstances render this application moot.
[7]
Mr. Kolenovic also argued that the officer erred by failing to consider
new evidence of the risk that faces him in Montenegro. This argument appears
entirely baseless given that Mr. Kolenovic had already had the benefit of a
refugee hearing and a pre-removal risk assessment, and had recently initiated a
request for a second assessment. In addition, the enforcement officer did
consider the materials Mr. Kolenovic had submitted and concluded that they did
not disclose any further risk.
[8]
The remaining question is whether I should exercise my discretion to
decide this application notwithstanding that it is moot. I decline to do so.
Considering the relevant criteria (see Borowski v. Canada
(Attorney General), [1989] 1 S.C.R. 342), there remains, in a general
sense, an adversarial relationship between the parties, but I do not think the
interests of judicial economy would be served by deciding this case. The law
governing the discretion available to enforcement officers is well-settled: Kovacs
v. Canada (Minister of Public Safety and Emergency Preparedness),
2007 FC 1247. I am doubtful that the facts before me present an occasion to
advance the law or provide guidance to other officers even though, to do so,
would not take the Court outside of its proper role.
[9]
Therefore, this application for judicial review is dismissed. No
question arises for certification.
JUDGMENT
THIS COURT’S JUDGMENT IS
that
1.
The
application for judicial review is dismissed;
2.
No
question of general importance is stated.
“James
W. O’Reilly”
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