Date: 20080228
Docket: IMM-990-07
Citation: 2008 FC 264
Ottawa, Ontario, February 28, 2008
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
PETER ALEXANDER
LESLIE-ANN ALEXANDER
SHEPHAN NISA ALEXANDER
Applicants
and
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
O’KEEFE J.
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (IRPA) for judicial review of a
decision by an enforcement officer (the officer), dated March 8, 2007, which
refused the applicants’ request for a deferral of removal.
[2]
The
applicants’ request that the decision be set aside and the matter be remitted
for re-determination by a new enforcement officer.
Background
[3]
Peter
Alexander, Leslie-Ann Alexander and Stephan Nisa Alexander (the applicants) are
citizens of Grenada. Peter and
Leslie-Ann Alexander are the parents of two daughters, Stephan Nisa (13 years
old) and Naysa (5 months old). Stephan Nisa (the minor applicant) was born in Grenada and is
subject to a removal order. Naysa was born in Canada and is
eligible to remain in Canada.
[4]
The
applicants’ refugee application was denied, as was leave for judicial review.
Subsequently, their pre-removal risk assessment (PRRA) application was also
denied. The applicants are the subject of removal orders which were to be
executed on March 14, 2007. On March 1, 2007 the applicants made a request to
defer removal to Canadian Border Services. The officer commenced her response
on March 7, 2007. In a decision dated March 8, 2007, the officer rejected the
applicants’ request for deferral. This is the judicial review of the officer’s
decision.
[5]
The
applicants have since filed an humanitarian and compassionate (H&C) grounds
application, but this appears to have been done after the request for deferral.
Officer’s Decision
[6]
In
a decision dated March 8, 2007, the officer stated that she had considered the
applicants’ request, but “did not believe that a deferral of the execution of
the removal orders was appropriate in the circumstances of [the] case.” The
officer’s notes provide her reasons for refusing the request.
[7]
The
officer considered the impact of the removal on the minor child subject to
removal and stated that there was “insufficient evidence presented to suggest
that Nisa would not be able to continue her grade 8 academic year upon return
to Grenada.” The
officer noted that Grenada had a British education system within which
schooling was conducted in English. The officer found that this would ease
Nisa’s transition. The officer also considered a psychological report from a
Dr. Young, Ph. D., which concluded that Nisa’s “’anxiety does not reach a
diagnostic level, for it quite localized to one issue’, that is, separation
from her parents.” The officer submitted that Nisa’s feelings are a normal
reaction associated with deportation.
[8]
The
officer also considered that the applicants had lived in Grenada for the
majority of their lives and that they had an extensive family network still
residing in Grenada who would
presumably provide some assistance to the applicants upon their return. The
officer also noted that in Grenada the applicants could
work and benefit from any social, medical and community assistance available, whereas
in Canada the applicants
were no longer able to work legally and receive social assistance or publicly
funded health care.
[9]
Although
not requested to do so by counsel, the officer considered the impact of the
removal on the Canadian born child involved, Naysa. The officer noted that
Naysa had every right to remain in Canada. The officer found that
“considering her young age, Nasya is likely to adapt fairly quickly to a new
environment should her parents chose to take her along to Grenada.”
[10]
After
having considered all the factors presented in the case, the officer was not
satisfied that sufficient reasons existed to defer removal.
Issues
[11]
The
applicant submitted the following issues for consideration:
1. Is the correct
standard of review of a decision rendered by a removal officer reasonableness
or patent unreasonableness?
2. Did the removal officer
ignore or misconstrue evidence thus rendering unreasonable findings?
[12]
I
would rephrase the issues as follows:
1. Is this application
for judicial review moot?
2. If so, should the
Court nonetheless exercise its discretion to hear the case?
3. If so, what is the appropriate
standard of review?
4. Was the officer
required to do a full assessment of the best interest of the child before
rendering a decision?
5. Is the officer’s
decision reviewable given the evidence before her?
Analysis and Decision
[13]
Is
this application for judicial review moot?
At the commencement of the
hearing, the respondent raised the issue of mootness. The parties made oral
submissions to me on the issue of mootness. Both parties submitted that they
intended to rely on their written submissions if I found the application not to
be moot or if I found it to be moot and exercised my discretion to hear the
application nonetheless.
[14]
There
were two main reasons given by the applicants in making their request for deferral,
the denial of which is the subject of this judicial review. The first reason
was that the applicants’ eldest daughter was part-way through her school year.
The second reason was that the applicants had an outstanding motion to re-open
their refugee hearing before the Immigration and Refugee Board.
[15]
The
parties informed me that these were no longer live issues. The applicants’
eldest daughter had since finished her school year and the application to
re-open was denied and all review routes were exhausted.
[16]
The
leading case on mootness is Borowski v. Canada (Attorney
General),
[1989] 1 S.C.R. 342. At page 353, paragraphs 15 and 16, Justice John Sopinka
stated:
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. The cases do not always make it clear whether
the term "moot" applies to cases that do not present a concrete
controversy or whether the term applies only to such of those cases as the
court declines to hear. In the interest of clarity, I consider that a case is
moot if it fails to meet the "live controversy" test. A court may
nonetheless elect to address a moot issue if the circumstances warrant.
[17]
In
the present case, both reasons for seeking the deferral no longer exist. As a
result, I am of the view no live issues or controversy exists between the
parties. The application is therefore moot.
[18]
Issue
2
Should the Court exercise
its discretion and hear the case?
In Borowski above,
Justice Sopinka discussed the criteria to consider when deciding whether to hear
a moot matter.
[19]
The
first rationale or criteria to be assessed in deciding whether to hear a moot
case is that a court’s competence to resolve legal disputes is rooted in the
adversarial system. In the present case, the adversarial relationship is no
longer present since neither reason for seeking the stay exists. As well, there
are no collateral consequences as there were in Vic Restaurant Inc. v. City
of Montréal, [1959] S.C.R. 58.
[20]
The
second criteria to be assessed is the concern for judicial economy. In the
present case, I cannot see where the determination of the judicial review will
have any practical effect on the parties. As such, I do not believe that scarce
judicial resources should be applied to the determination of this judicial
review.
[21]
The
third criteria listed by Justice Sopinka in Borowski above at page 360,
paragraph 40 is:
[...] the need for [a] Court to
demonstrate a measure of awareness of its proper law-making function. The Court
must be sensitive to its role as the adjudicative branch in our political
framework.
[22]
Taking
the above criteria into account, I am of the opinion that I should not exercise
my discretion to hear a case which is moot.
[23]
Because
of my findings with respect to mootness, I need not decide the other issues
raised in the application.
[24]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
[25]
IT
IS ORDERED that the application for judicial review is dismissed for mootness.
“John
A. O’Keefe”
ANNEX
Relevant Statutory Provisions
The relevant statutory provisions are set
out in this section.
The Immigration and Refugee Protection
Act, S.C. 2001, c. 27:
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48.(1) A
removal order is enforceable if it has come into force and is not stayed.
(2) If a
removal order is enforceable, the foreign national against whom it was made
must leave Canada immediately and it must be enforced as
soon as is reasonably practicable.
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48.(1) La mesure de renvoi est
exécutoire depuis sa prise d’effet dès lors qu’elle ne fait pas l’objet d’un
sursis.
(2)
L’étranger visé par la mesure de renvoi exécutoire doit immédiatement quitter
le territoire du Canada, la mesure devant être appliquée dès que les
circonstances le permettent.
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