Date: 20081002
Docket: IMM-781-08
Citation: 2008 FC 1107
Toronto, Ontario, October 2,
2008
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
ELAINE EWERS-BAPTISTE,
GLENROY BAPTISTE
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application
for judicial review of the Minister’s refusal of an application for permanent
resident status under the spouse or common-law partner in Canada class. The decision was communicated to the applicants
by letters dated December 28, 2007.
[2]
Glenroy
Baptiste, the principal applicant and a national of St.Vincent, married Elaine
Ewers-Baptiste, a Canadian citizen, on January 12, 2006. In March 2006, Ms.
Ewers-Baptiste applied to sponsor her husband’s application for permanent
residence and submitted a sponsorship undertaking to the Respondent. Mr.
Baptiste followed up with the permanent residence application in March of 2006.
[3]
By
letter dated November 23, the Respondent informed Ms. Ewers-Baptiste of its
discovery that Mr. Baptiste had been in receipt of social assistance from
January 2005 up until the 31st of May, 2006. The letter goes on to
state that if Mr. Baptiste was receiving social assistance on the day upon
which the sponsorship undertaking was filed, or at any time thereafter prior to
a final decision on the application for permanent residence, pursuant to s.
133(1)(b) of the Immigration and Refugee Protection Regulations, Ms.
Ewers-Baptiste would be ineligible as a sponsor and the application might be
refused. Accordingly, she was instructed to submit information and documents
demonstrating that she met the eligibility requirements to sponsor her husband.
[4]
In
response to this letter, the applicants submitted numerous documents to the
Respondent, including a marriage certificate, banking documents, a copy of a
Notice of Assessment for 2006, all under cover of letter dated December 12,
2007. On the subject of Mr. Baptiste’s receipt of social assistance, Ms.
Ewers-Baptiste wrote as follows:
The information you have from
social services is correct in that Glenroy had received assistance while his
application for refugee status was being processed. Glenroy continued to have
funds deposited to an account that is now closed and had moved from the address
he had given social services. …
I will pay social services
back as I am sponsoring Glenroy and am capable of doing so. I have been and
intend to fulfill my responsibilities as a sponsor. Glenroy stopped the
assistance in May 2006 and closed the account. This was definitely an error on
his part, I won’t say he forgot the money was coming in but rather that he paid
no attention to it until we discussed the account at CIBC and the funds he had
in it. Since Glenroy had moved from the address that social services (sic) he
was not receiving any mail from Social Services and simply let the funds get
deposited.
Once we discussed the account,
and I having worked for Social Services in the past, I immediately told Glenroy
to call Social Services and stop the assistance.
[5]
By
letter dated December 28, 2007, the Respondent informed Mr. Baptiste that his
wife’s sponsorship application had been refused on account of his receipt of
social assistance between the date of the sponsorship application and May 31,
2006. Accordingly, he was not “the subject of a sponsorship application” and
did not qualify as a member of the spouse or common-law partner in Canada class within
the terms of subsection 124(c) of the Immigration and Refugee Protection
Regulations; his application for permanent residence under that
class was refused.
[6]
The
Immigration Officer’s notes to file in relation to the Baptiste application
include the following observations which can be taken to express the reasons. After
noting that Glenroy Baptiste was in receipt of social assistance until the end
of May 2006 whereas the sponsorship undertaking was received in the first week
of March 2006, the officer writes:
THE SPONSOR STATES THAT SHE
WILL REPAY SOCIAL SERVICES. HER STATEMENT TO THIS EFFECT IS DATED 12DEC2007,
HOWEVER, SHE INDICATES THAT SHE WAS AWARE OF GLENROY RECEIVING SOCIAL
ASSISTANCE AS FAR BACK AS MAY’06, YET THERE IS NO INDICATION THAT SHE HAS TAKEN
ANY STEPS TO MAKE ARRANGEMENTS WITH SOCIAL SERVICES TO REPAY THE FUNDS.
THEREFORE, THE SPONSORSHIP APPLICATION IS REFUSED.
[7]
There
matters stood. The applicants submitted that the officer’s decision on the
sponsorship application was unreasonable and sought this Court’s intervention.
[8]
At
the commencement of the hearing, counsel for the Minister informed the Court
that the applicants had filed a second sponsorship application on January 28,
2008 and that it had been approved in principle on June 18, 2008. The only issue
preventing its final approval was receipt of proof from the applicants that a
former criminal charge against Mr. Baptiste was withdrawn. Ms. Ewers-Baptiste
assures us that it will soon be obtained. Given the timing of this new
application, the issue of the social assistance payments and repayments is
thankfully not an issue.
[9]
I
say “thankfully not an issue” because Ms. Ewers-Baptiste, since December 2007, has
been unable to convince the bureaucrats at Social Services to accept the
approximately $2100 in overpayment. She finds herself in a Catch 22. Social
Services informed her that they would not accept the overpayment until the
sponsorship was approved and the first sponsorship application could not be
approved without proof of repayment. If I had jurisdiction, I would direct Social
Services to accept a cheque from Ms. Baptist for this overpayment. As I do not
have such jurisdiction, I wish to make it clear to those in charge of such
overpayments, that their actions have had a direct and negative impact on the
lives of two residents of Ontario. It would shock the
sensibilities of the taxpayers of Ontario that those in charge of
overpayments, to date, have refused to accept a voluntary reimbursement of a
social assistance overpayment.
[10]
In
any event, counsel for the Minister submitted that this application out to be
dismissed on the basis of mootness. A court may decline to decide a case which
raises merely a hypothetical or abstract question. A judicial review
application is moot when a decision will not have the effect of resolving the
controversy that affects the rights or potential rights of a party: Higgins
v. Canada (Minister of
Public Safety and emergency Preparedness), [2007] F.C.J. No.
516.
[11]
In
light of the new spousal application, I am of the view that it is not in the
interest of justice to decide this case – it is moot. If the application is
denied, it will have no impact on resolving the rights of the applicants as
they are the subject of a second application that has been accepted and
approved in principle by the Minister. If it is allowed, the officer to whom
it is referred will be called upon to make the same decision as the officer in
the new application and by that time the second application may well have been
finally determined. At that point any decision in the original application
will have no impact.
[12]
For
these reasons, the application is dismissed, without considering its merits.
[13]
The
Court notes that the Minister took nearly two years to make a decision on the
first spousal application. The applicants have been married more than two and
one-half years and have a child. It would be appropriate for the Minister to
give some priority to this new application and render a decision as soon as
possible after the applicants provide proof of the clean criminal record of Mr.
Baptiste.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that this
application is dismissed.
"Russel
W. Zinn"
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