Date: 20080609
Docket: IMM-4294-07
Citation: 2008 FC 719
Ottawa, Ontario, June 9,
2008
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
VENEISHA
YOLANDA LEWIS
Applicant
and
THE MINISTER OF PUBLIC SAFETY
AND
EMERGENCY PREPAREDNESS
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Ms. Lewis arrived in Canada on a
six-month visitor’s visa on June 25, 2001. She is a Jamaican citizen by birth
and a citizen of Grenada by virtue of her marriage on March 26, 2001 to
Bernard Cornel Lewis, who is also a permanent resident of Canada. Ms.
Lewis did not apply to extend her visitor’s visa, claiming that she did not
know she was required to do so, given her marriage to a Canadian permanent
resident. The couple has a Canadian-born daughter, Kendella Corlesha Lewis,
born August 8, 2002.
[2]
Ms. Lewis lived in Canada
illegally but without incident for almost five years before coming to the
attention of the Canadian Border Services Agency (CBSA) as a result of an
incident of domestic abuse on April 2, 2006. As a result, she was issued an
exclusion order on May 9, 2006.
[3]
A Pre-Removal Risk Assessment
(PRRA) application was refused on November 27, 2006. Judicial review of the
negative PRRA was dismissed on July 26, 2007. A request for a waiver of the
requirements of permanent resident status on humanitarian and compassionate
(H&C) grounds was made on July 12, 2007 and remains unresolved. Ms. Lewis
then made a request for a deferral of removal on October 3, 2007 on the basis
of the best interests of her daughter, a Canadian citizen, and her outstanding
H&C application. The denial of that request is the decision here under
review.
[4]
At the hearing, I raised the issue
of mootness with the parties, on the grounds that the removal date which the
applicant sought to defer had passed and she had therefore gained the relief
she sought. Both counsel submitted that there remained a live issue between the
parties and the hearing on the merits continued.
[5]
Following the hearing, I requested
further written representations from the parties with respect to the decisions
of my colleagues Justice Anne L. MacTavish in Palka v. Canada (Minister of
Public Safety and Emergency Preparedness), 2008 FC 342, [2008] F.C.J. No.
435 and Justice Eleanor R. Dawson in Baron v. Canada
(Minister of Public Safety and Emergency Preparedness), 2008 FC 341, [2008] F.C.J. No. 434. In both cases,
the Court came to the conclusion that the issues raised by applicants in
precisely the same position as Ms. Lewis were made moot by the passing of the
removal date at issue.
[6]
In their further
written representations, the parties continued
to maintain the position that the case at bar was not moot and should be
decided on its merits.
[7]
I disagree. The facts underlying
this application are on all fours with Palka and Baron and the
jurisprudence cited therein. Notwithstanding the submissions of both parties I
do not consider those decisions to be "manifestly wrong" and in the
interests of judicial comity I see no reason to reach a different conclusion.
[8]
The question certified in both Palka
and Baron has not yet been answered by the Federal Court of Appeal,
although it is noted that an appeal has been filed in both. The parties have
submitted a variation of the same question for certification in this
application, reading as follows:
Where an applicant has filed an
application for leave and judicial review challenging a refusal to defer
removal pending a decision on an outstanding application for landing, does the
fact that a decision on the underlying application for landing remains outstanding
at the date that the Court considers the application for judicial review
maintain a “live controversy” between the parties, or is the matter rendered
moot merely by the passing of the scheduled removal date?
[9]
With an amendment to make the
question more closely reflect the nature of the factual basis of this case, I
shall certify it as well.
JUDGMENT
IT IS THE JUDGMENT OF
THIS COURT that the application is dismissed
for mootness. The following question is certified:
Where an applicant has filed an
application for leave and judicial review challenging a refusal to defer
removal pending a decision on an outstanding application for landing, and a
stay of removal is granted so that the person is not removed from Canada, does
the fact that a decision on the underlying application for landing remains
outstanding at the date the Court considers the application for judicial review
maintain a "live controversy" between the parties, or is the matter
rendered moot by the passing of the scheduled removal date?
“Richard
G. Mosley”
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