Date: 20080526
Docket: IMM-4023-07
Citation: 2008 FC 663
BETWEEN:
ELDER
BENJAMIN SOLIS PEREZ
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
and
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Respondents
REASONS FOR
ORDER
MARTINEAU
J.
[1]
This is an
application for judicial review of a decision rendered by E. Thérriault, Pre-Removal Risk Assessment
(PRRA) Officer, on July 19, 2007, which rejected the applicant’s PRRA
application on the grounds that he would not be subject to risk of persecution,
torture, risk to life or risk of cruel and unusual treatment or punishment if
returned to his country of nationality or habitual residence.
[2]
The applicant,
Elder Benjamin Solis Perez, is a citizen of Mexico.
[3]
On January
11, 2006, the applicant arrived in Montreal.
A few weeks later he applied for refugee protection stating that as a
homosexual man, he feared persecution in Mexico on the basis of his sexual orientation.
He also stated that he feared his ex-boyfriend.
[4]
In October
2006, the Immigration and Refugee Board (the IRB) rejected the applicant’s
asylum claim concluding that he was neither a Convention refugee nor a person
in need of protection in accordance with sections 96 and 97 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27, as amended (the Act). The IRB
was of the opinion that the applicant failed to rebut the presumption that
state protection is available in Mexico.
[5]
The
applicant sought leave to judicially review the IRB’s decision (Court file:
IMM-6010-06). The application for leave was dismissed in March 2007.
[6]
The
applicant, self-represented at that time, subsequently made a PRRA application.
He submitted personalized and documentary evidence concerning his risk of
return.
[7]
The PRRA
officer rejected the applicant’s PRRA application on July 19, 2007 (the
impugned decision).
[8]
The
applicant applied to the Court for an order staying his removal which was to
take effect on October 29, 2007. On October 25, 2007, Justice Blanchard dismissed
the stay application:
Assuming without deciding that there is a
serious issue to be tried in this matter, I am of the view that the Applicant
has failed to establish that he will suffer irreparable harm should he be
removed to Mexico.
The undisputed evidence establishes that
HIV treatment and medication are available in Mexico. Notwithstanding the able submissions by
counsel for the Applicant, the evidence fails to establish that the Applicant
will be unable to access treatment or medication in Mexico. While the documentary evidence supports
the submission that homosexuals and HIV positive homosexuals may be
discriminated against in Mexico, this in itself is
insufficient to establish that the Applicant will suffer irreparable harm.
In the circumstances, the balance of
convenience favours the Respondent.
[9]
The
applicant returned to Mexico and remains there today.
[10]
In the
meantime, leave was granted by the Court to judicially review the impugned
decision. In the Order granting leave, the applicant was given until the middle
of February to serve and file further affidavits. On February 12, 2008, the
applicant filed the affidavit of Mr. David Thompson, a lawyer working as a coordinator of
research and a volunteer at the Immunodeficiency Service of the Montreal Chest
Institute (MCI).
Approximately one month later, the applicant filed an additional memorandum of
fact and law. The respondents did not file supplemental written
representations.
[11]
In seeking to
judicially review the impugned decision, the applicant first submits that the
PRRA officer erred by not admitting new evidence, in particular a letter from
Mr. Henning Scharoff, member of the United Nations World Food Programme which
states that people who are HIV positive (HIV+) or suffering from AIDS are
subjected to serious discrimination. Second, the applicant alleges that the
PRRA officer failed to consider the risks related to HIV and whether there
could be grounds for finding persecution based on an accumulation of the risks
associated with having HIV and being gay. Finally, the applicant states the
PRRA officer erred by concluding the situation in Mexico has improved to such an extent that homosexuals may live in
safety in that country.
[12]
The applicant seeks
the following remedies of the Court: quash the decision of the PRRA officer dated
July 19, 2007; order that a new decision be taken by
another PRRA officer and that the applicant be returned to Canada during that
redetermination; order that the costs of returning the applicant be borne by
the respondents; order that the order quashing the decision apply nunc pro
tunc (or retroactively) to one day prior to the applicant’s removal; and
take all other appropriate measures to safeguard the rights of the parties.
[13]
This Court has
addressed the question of mootness in the context of immigration and refugee
matters on numerous occasions. As a preliminary matter, on its face, the
judicial review of the impugned decision appears moot since the applicant is no
longer in Canada. Indeed, the issue of mootness was
raised by the respondent in the spring of this year. On April 3, 2008, the
respondent Minister of Citizenship and Immigration filed a notice of motion to
dismiss the applicant’s application for judicial review. The respondent was of
the view that the applicant chose to return voluntarily to his country of
origin which rendered the matters raised in this judicial review “wholly
academic.” According to the respondent, it would therefore be appropriate for
the Court to exercise its discretion to decline to hear the matter by summarily
dismissing the application for judicial review.
[14]
In the alternative,
the respondent also argued that should this Court decide to hear the judicial
review, it would be appropriate the strike the affidavit sworn by Mr. Thompson
as it constitutes evidence that was not presented to the PRRA officer and is
thus, not under review in the present matter. For clarity, according to his
testimony, Mr. Thompson had provided the applicant with information concerning
his request for permanent residence from within Canada.
Once the applicant had left Canada for Mexico in October 2007, Mr. Thompson continued
to communicate with the applicant via email and telephone. In essence,
Mr. Thompson attests to the fact that the applicant “continues to experience
strong rejection from immediate family members because of his homosexuality;
[…] has personally witnessed police harassment of businesses that cater to the
gay community in Mexico City, as well as of patrons of those businesses; […]
has related to [Mr. Thompson] his observations of a lack of efficient police
enforcement of security within the neighbourhood where gay businesses are
located as well as widespread fear of police among the gay population in the
city”. Further, according to Mr. Thompson, the applicant described to him that
HIV infection remains extremely taboo even in communities where it is prevalent
and that “some members of the gay community have informed [the applicant] that
they do not wish to have HIV+ friends.”
[15]
The applicant
conceded to the respondent’s motion to strike the affidavit of Mr. Thompson
“for the judicial review of the PRRA decision.” However, the applicant stated
that the original purpose in filing the affidavit was to “pre-emptively have on
record evidence to persuade the Court to use its discretion to hear the matter,
should it find the matter moot. This was based on the assumption that the
Respondents would have raised the issue in their further memorandum of fact and
law.” Indeed, had the respondents submitted further written representations
where the issue of mootness was raised, the applicant stated he would have
sought leave of the Court to have the affidavit considered in response to that
issue. In terms of the merits of the motion to dismiss, the applicant was of
the view that it was very late for the respondent to submit such a motion. In
the applicant’s written representations, applicant’s counsel argued the
applicant would be prejudiced in the following ways: “[t]he Applicant wishes to
return to Canada or at the very least, to have his PRRA studied as soon as
possible; […] the Respondents submit the motion for the very same time when the
application for judicial review is to be heard; and, […] because the Applicant
is in Mexico and communication with him can be erratic, […] the Applicant has
not been able to submit further evidence to contradict the qualification of the
Respondent that the Applicant has left [Canada] voluntarily.” [Emphasis
in original]
[16]
Having considered the
representations of the parties and “considering that it is in the interest of
this Court and of the parties that this matter be heard at a later date”,
Justice Pinard dismissed the respondent’s motion to dismiss on April 10, 2008.
Justice Pinard allowed the respondent to raise the issue of mootness in an
additional memorandum of argument with supporting affidavits. Similarly, the
applicant was to be afforded the opportunity to respond to the respondent’s
materials. The hearing of the judicial review was adjourned.
[17]
By letter
dated April 17, 2008, the respondent informed the Court : « nous
n’entendons plus soulever la question du caractère théorique dans la cause
citée en rubrique. Ainsi, nous ne soumettrons pas de mémoire supplémentaire […]
».
[18]
Nevertheless, the
issue of mootness is not one left to the good will of parties or their
respective counsel. Instead, it is an issue of judicial policy and discretion
that involves the inherent power of the Court to control its own process. In
this regard, it can always be raised proprio motu (of the Court’s own
accord) by the applications judge charged with hearing an application.
[19]
Accordingly, as
presiding judge, I issued the following direction on May 20, 2008:
DIRECTION
Counsel are directed to be
ready to argue at the start of the hearing: 1) whether the present application
has been rendered moot by the departure from Canada of the applicant; 2)
whether this is a proper case for the Court’s discretion to hear a moot
application; and 3) whether this case is distinguishable from Figurado v.
Canada (Solicitor General), 2005 FC 347, [2005] F.C.J. No. 458 (QL); Nalliah
v. Canada (Minister of Citizenship and Immigration), 2005 FC 759, [2005]
F.C.J. No. 956 (QL); Thamotharampillai v. Canada (Solicitor General),
2005 FC 756, [2005] F.C.J. No. 953 (QL); and Sogi v. Canada (Minister of
Citizenship and Immigration), 2007 FC 108, [2007] F.C.J. No. 158 (QL).
[20]
I heard complete submissions
from counsel on the issues raised in the direction. For the reasons that
follow, I conclude that the matter is moot; that it is not a proper case for
the Court’s discretion to hear this application; and, that there are no
convincing reasons in this case not to adopt the reasoning expressed by the
Court in the cases mentioned above. As a result, I will not hear the merits of
the application. This judicial review shall be dismissed on grounds of
mootness.
[21]
The leading case for
analyzing whether or not an application for judicial review is moot is Borowski
v. Canada (Attorney General), [1989] 1 S.C.R. 342 (Borowski).
The following excerpt from the reasons of Justice Sopinka at page 353 is
particularly helpful to clarify the doctrine of mootness:
The
doctrine of mootness is an aspect of a general policy or practice that a court
may decline to decide a case which raises merely a hypothetical or abstract
question. The general principle applies when the decision of the court will not
have the effect of resolving some controversy which affects or may affect the
rights of the parties. If the decision of the court will have no practical
effect on such rights, the court will decline to decide the case. This
essential ingredient must be present not only when the action or proceeding is
commenced but at the time when the court is called upon to reach a decision.
Accordingly if, subsequent to the initiation of the action or proceeding,
events occur which affect the relationship of the parties so that no present
live controversy exists which affects the rights of the parties, the case is
said to be moot. The general policy or practice is enforced in moot cases
unless the court exercises its discretion to depart from its policy or
practice. The relevant factors relating to the exercise of the court's
discretion are discussed hereinafter.
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 [...].
[22]
In Figurado v. Canada (Solicitor General), 2005 FC 347, [2005] F.C.J. No. 458 (QL)
(Figurado), I considered whether or not a judicial review of a decision
of a PRRA officer was moot. In Figurado, the applicant was a citizen who,
like the applicant in this instance, had been denied a stay of removal pending
determination of the application for judicial review and who, again like the applicant
here, had been granted leave in respect of his application for judicial review.
[23]
Paragraphs 8, 40 and
41 of Figurado are particularly relevant:
The applicant seeks to have the PRRA
decision set aside and asks that the matter be remitted for redetermination
before a different officer. However, in the meantime, on February 16, 2004,
this Court dismissed the applicant's motion requesting a stay of the
enforcement of the removal order until the present judicial review application
could be heard and decided. The Motions Judge considered there was no serious
issue raised. The applicant has since been removed from Canada. That said, on September 17, 2004, the
Applications Judge granted leave for judicial review.
[…]
The PRRA process was
implemented to allow individuals to apply for a review of the conditions
surrounding the risk of return prior to their removal from Canada
and not after their removal. Indeed, the PRRA emerged as a result of the
jurisprudence of the Federal Court of Appeal and the Supreme Court of Canada,
which required a timely risk assessment to comply with section 7 of the Charter
(Farhadi v. Canada (Minister of Citizenship and Immigration), [2000]
F.C.J. No. 646 (F.C.A.) (QL); Suresh v. Canada (Minister of Citizenship and
Immigration), [2002] 1 S.C.R. 3). It is clear that Parliament's primary
intention in enacting the PRRA process was to comply with Canada's
domestic and international commitments to the principle of non-refoulement,
Regulatory Impact Analysis Statement to the IRPA Regulations, Canada Gazette,
Part I, December 15, 2001, pp. 4550, 4552). Subsection 115(1) of the IRPA,
found in Division 3 - Pre-removal risk assessment which comprises sections 112
to 116 of the IRPA, assures that a person shall not be removed from Canada to a
country where they would be at risk of persecution for reasons of race,
religion, nationality, membership in a particular social group or at risk of
torture or cruel and unusual treatment or punishment. Naturally, this statutory
right is subject to the exceptions mentioned at subsection 115(2) of the IRPA
(however, for the purposes of the present case, it is not necessary to determine
whether such exceptions contravene section 7 of the Charter). Accordingly, the
PRRA is closely linked in time to removals and is carried out immediately prior
to removal.
The fact that PRRA applicants
receive a statutory stay of removal under section 232 of the IRPA Regulations
is indicative of the legislative intent to have PRRAs completed before
applicants are to be returned to face the risks they allege. The PRRA's
fundamental purpose is to determine whether or not a person can safely be removed
from Canada without being subject to persecution, torture
or inhumane treatment. This purpose ceases to exist upon removal. Further, if
the applicant returned and suffered persecution, torture or inhumane treatment,
the redetermination of the PRRA may not have any practical effect. […]
[24]
Moreover, while the
circumstances that were before me in Figurado were similar to those on
this application for judicial review, they differ in that a stay of removal in
that matter was denied on the basis of no serious issue to be tried, whereas in
the case at bar, irreparable harm was determined not to have been established.
I note that in Nalliah v. Canada (Minister of Citizenship and Immigration),
2005 FC 759, [2005] F.C.J. No. 956 (QL) (Nalliah) and Thamotharampillai
v. Canada (Solicitor General), 2005 FC 756, [2005] F.C.J. No. 953 (QL) (Thamotharampillai),
the Court held that the removal of an applicant makes the judicial review of a
decision rejecting an application for protection moot when the evidence does
not disclose any irreparable harm (which is the case here, since Justice
Blanchard dismissed the stay motion on this ground).
[25]
Further, in Sogi
v. Canada (Minister of Citizenship and
Immigration), 2007 FC
108, [2007] F.C.J. No. 158 (QL) (Sogi), a recent decision from this
Court, my colleague Justice Noël states at para. 31 that: “the purpose of an
application for protection, such as made by the applicant, is to assess the
risks before removal, not after it”. According to Justice Noël, this is why
section 232 of the Act provides that an applicant has the benefit of an
automatic stay of the removal order while the decision on the PRRA application
is pending. In doing so, Parliament intended that the PRRA should be determined
before the PRRA applicant is removed from Canada, to avoid putting her or him at risk in
her or his country of origin. To this extent, if a PRRA applicant is removed
from Canada before a determination is made on the
risks to which that person would be subject to in her or his country of origin,
the intended objective of the PRRA system can no longer be met. Indeed, this
explains why section 112 of the Act specifies that a person applying for
protection is a “person in Canada”.
[26]
I am of the view that
these precedents conclusively establish that in the case before me, the
application for judicial review of the impugned decision is moot, as it fails notably
to meet the “live controversy” test. Indeed, a positive decision at this stage
will have no tangible, concrete or practical effect.
[27]
I turn now to the second
step in the mootness analysis, namely a determination of whether, irrespective
of a finding of mootness, the Court should nevertheless exercise its discretion
to hear the case.
[28]
In Borowski, above
at p.358-363, the Supreme Court of Canada outlined the following factors for a
court to consider when deciding whether or not to exercise its discretion to
hear a matter: first, whether an adversarial context still exists; secondly,
the concern for judicial economy; and, thirdly, the need for the Court to
demonstrate a measure of awareness of its proper law-making function. Moreover,
in addition to these criteria, the Court may also consider any other relevant
factor (Sogi, at para. 40).
[29]
First, I am satisfied
that an adversarial context still exists. The applicant is now ably represented
by counsel. I have also taken into account the additional evidence the
applicant wishes the Court to consider with respect to the issue of mootness (i.e.,
the affidavit of Mr. Thomson dated February 12, 2008). According to this
evidence, the affiant suggests that the applicant continues to experience
discrimination because he is both gay and HIV positive and that he “has
consistently expressed a very strong desire to return to Montreal in order to be able to live freely, without threat and in
safety and in peace as an HIV+ gay man.”
[30]
However, as mentioned
by Justice Noël in Sogi, at paragraphs 42 and 43, “a moot issue must not
unduly use up the resources of our judicial system […] It must be asked whether
a judicial solution to the issue could have concrete consequences on the rights
of the parties […]”. In the case at bar, the Court is not entitled to determine
whether the applicant is suffering persecution in Mexico because he is both gay and HIV positive. Neither can this
Court make a determination on the availability of state protection in Mexico. The only practical advantage, if there is one, would be
that the Court could order that the matter be re-determined by another PRRA
officer. I doubt very much that the Court would have the power to order that
the applicant be returned to Canada, at the costs of the Government of
Canada, during that redetermination. Accordingly, it is only where there is a
positive reassessment of the alleged persecution and risk that the applicant
could then ask that authorization be granted to return to Canada (and apply for permanent residence). “But this hypothetical
advantage results in adding a supplementary burden to the judicial system and
scarce resources already greatly in demand in immigration matters” (Figurado,
at para. 47).
[31]
With respect to the
third criteria, what I said in Figurado at paragraph 48, is informative:
Finally,
by ordering a PRRA officer to reconsider an application for protection after an
applicant has been removed from Canada, I am not certain that in so doing, the Court
would not be departing from its traditional role as the adjudicative branch in
our political framework. In such a case, it could be said that a
redetermination ordered by the Court amounts or comes very close to the
establishment of a new category of persons in need of protection, persons
removed from Canada who continue to claim outside Canada
that they are at risk. I note that section 95 of the IRPA already defines and
establishes the categories of "protected persons" to which refugee
protection is conferred. In this regard, I note that under the IRPA
Regulations, a foreign national who is outside Canada already has the right to
apply for a permanent resident visa as a member of the Convention refugees abroad
class, the country of asylum class and the source country class (paragraph
70(2)(c) of the IRPA Regulations). In these circumstances, it is not
unreasonable to infer that refugee protection should be limited to persons
outside Canada who fall under one of these categories.
[32]
In Nalliah, at
paragraph 22, Justice Gibson also writes:
Section
232 of the Immigration and Refugee Protection Regulations provides for a stay
of removal where a PRRA application is made, which continues, generally
speaking, until the PRRA application is rejected if such be the case. Such was
the case on the facts of this matter. It is noteworthy that the same
Regulations do not provide for a continuation of the stay where an application
for judicial review of a PRRA decision is made, whether or not leave is granted
on that application. Thus, the Governor-in-Council, acting under authority
granted by Parliament, saw fit not to extend the section 232 stay to
circumstances such as those underlying this application for judicial review. In
the result, it remained open to my colleague Justice Snider to deny a
discretionary judicial stay and, when she did so, to the Respondent to remove
the Applicant notwithstanding the Applicant's allegation of serious risk of
irreparable harm.
[33]
Thus, I find it very
hard to accept, in law, that what was once a legal action of the government
(the enforcement of the removal order) may become illegal afterwards simply by
judicial dicta, especially since the Motions Judge (Justice Blanchard in this
case) refused to grant a stay of execution. To be “illegal”, the Applications
Judge must later declare that any order quashing the impugned decision made by
the PRRA officer applies nunc pro tunc (or retroactively) to one day
prior to the applicant’s removal. Again, I doubt very much that the Court has
the power, from a legal point of view, to make such an order.
[34]
I am also of the
opinion that my hearing the judicial review in this instance, would, in
essence, amount to an indirect review of the merits of Justice Blanchard’s decision
on the legality of the enforcement of the removal order. It bears reiterating
that Justice Blanchard determined, based on the evidence before him, that the
applicant had not established that he would suffer irreparable harm if returned
to Mexico. Accordingly, even assuming a serious
issue was raised, the balance of convenience favored the immediate execution of
the removal order. It was open to my colleague Justice Blanchard to deny a
discretionary judicial stay and, when he did so, it was equally open to the respondents
to seek to remove the applicant.
[35]
The situation before
me thus, raises a concern for judicial economy and, as stated Justice Gibson in
Nalliah and Thamotharampillai, above, may be “inappropriate as an
encroachment on the proper law-making function of the Governor-in-Council.”
[36]
For these reasons,
having determined the application for judicial review is moot, the Court also
declines to exercise its discretion to hear this application for judicial
review, notwithstanding its mootness. Accordingly, the present application must
fail and shall be dismissed by the Court.
[37]
At the close of the
hearing of this application for judicial review, I advised counsel that I may
choose to issue reasons and thereafter provide counsel with an opportunity to
make submissions on certification of a serious question of general importance.
These reasons will be issued and circulated. Counsel will have thirty (30) days
from the date that these reasons are issued and circulated to exchange and file
submissions on certification of a question. Counsel should ensure that any such
submissions are exchanged in a timely manner to allow for responsive
submissions, if considered appropriate, within the time here provided.
“Luc
Martineau”
FEDERAL
COURT
SOLICITORS OF RECORD
DOCKET: IMM-4023-07
STYLE OF CAUSE: ELDER BENJAMIN SOLIS PEREZ v. The Minister of Citizenship and Immigration and The Minister of Public
Safety and Emergency Preparedness
PLACE OF
HEARING: MONTREAL
DATE OF HEARING: May 21, 2008
REASONS FOR
ORDER: MARTINEAU J.
DATED: May 26, 2008
APPEARANCES: Me Peter Shams
Me Zoe Richard
SOLICITORS OF
RECORD:
|
FOR THE APPLICANT FOR
THE RESPONDENTS
|
Saint-Pierre Grenier Avocats Inc. FOR
THE APPLICANT
Montreal, Quebec
John H.
Sims FOR THE RESPONDENTS
Deputy Attorney General of Canada
Montreal, Quebec