Date:
20130326
Docket:
IMM-7645-11
Citation:
2013 FC 309
Ottawa, Ontario,
March 26, 2013
PRESENT: The
Honourable Mr. Justice Rennie
BETWEEN:
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AL-MUNZIR ES-SAYYID
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Applicant
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and
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THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
The
applicant seeks to set aside a decision by a delegate of the Minister of Public
Safety and Emergency Preparedness (the Delegate) that he is a danger to the
public and would not be at risk if removed from Canada.
[2]
The
applicant is a Convention refugee who arrived in Canada at the age of 7.
[3]
In
2009, the Immigration Division of the Immigration and Refugee Board determined
that the applicant was inadmissible to Canada because of serious criminality.
He committed various offences as a youth and in 2007, at the age of 18, he
committed robbery and armed robbery using an imitation firearm. While in
prison he was found in possession of heroin. As a result, the Immigration
Division issued a Deportation Order against him.
[4]
The
principle of non-refoulement precludes the applicant’s return to Egypt without special consideration under paragraph 115(2)(a) of the Immigration and
Refugee Protection Act, SC 2001, c 27 (IRPA).
Following the Delegate’s negative decision under that paragraph the applicant
unsuccessfully applied to this Court for a stay of his removal. He has since
been deported to Egypt.
Decision Under Review
[5]
The
Delegate determined that the applicant’s criminal behaviour had escalated from
schoolyard theft to pre-meditated armed robberies and threats of violence
against vulnerable and marginalized women working in the sex trade. The
Delegate considered evidence that he was a leader among his criminal peers, and
that as he was not employed his lifestyle likely was funded through crime.
[6]
The
Delegate concluded that the applicant had not been rehabilitated. He committed
offences while on probation and while incarcerated. He was transferred to a
maximum security prison because he could not be adequately supervised and
controlled in a medium-security facility.
[7]
The
Delegate noted that the Mubarak regime had been overthrown and the State
Security Investigations Service, responsible for torture of dissidents, had
been dismantled. None of the examples of those recently arrested involved
family members of dissidents of the previous regime. There was no evidence
that suggested that, as a young boy at the time he and his family left Egypt, he would be of interest to authorities. Therefore, the Delegate determined that he
would not be at risk in Egypt.
[8]
The
Delegate also considered humanitarian and compassionate (H&C)
considerations and found that they did not outweigh the risk the applicant
posed to the public.
Issues
[9]
There
are three issues raised by this judicial review:
(1) Whether
the Court should dismiss the application as moot;
(2) Whether
the applicant was granted procedural fairness; and
(3) Whether
the decision is reasonable.
[10]
The
applicant contends that the findings are unreasonable in that they are not
supported by the evidence, and indeed, are contradicted by some of the evidence
before the Delegate. Further, it is contended that as credibility findings
were made on four important issues, the principles of procedural fairness
required an interview of the applicant before reaching a decision. The
applicant also contends that the H&C considerations were inadequately
identified and unreasonably assessed, particularly given that the applicant
would return to a country in political and economic turmoil, where he had only
a basic ability to speak the language and in which he had not resided since he
was 2 years old.
Discussion
[11]
A
proceeding is moot when there is no live controversy between the parties: Borowski
v Canada (Attorney General), [1989] 1 S.C.R. 342.
[12]
The
purpose of the Delegate’s decision under paragraph 115(2)(a) of the IRPA
was to determine whether the applicant could be removed from Canada. Judicial review of this decision would not affect the applicant’s rights as he has already
been removed.
[13]
In
Mohamed v Canada (Minister of Citizenship and Immigration), 2012 FCA
303, the Federal Court of Appeal found that an appeal from the judicial review
of an opinion under subsection 115(2) was moot after the applicant was removed
from Canada. The Court also declined to exercise its discretion to hear the
appeal.
[14]
Borowski
sets
out the three factors a court should consider in deciding whether to hear an
application on the merits in circumstances such as those before the Court.
These factors include: the adversarial system, judicial economy and the court’s
law-making function.
[15]
With
regards to judicial economy, there are circumstances where it may be desirable
to hear an application if it would have some practical effect on the parties,
or if the dispute will likely reoccur but again become moot before adjudication
or if there is a social cost in leaving the matter undecided.
[16]
None
of these special circumstances are present in this application. As the Federal
Court of Appeal found in Mohamed, the issues raised on this judicial
review can be addressed in another proceeding involving an applicant who is in
Canada. Judicial review cannot grant a practical benefit to the applicant in
this case because he has already been removed. The lis between the
parties, namely whether the applicant can be removed from Canada notwithstanding his status, has evaporated.
JUDGMENT
THIS
COURT’S JUDGMENT is that this application is dismissed on the
basis that it is moot. There is no question for certification.
"Donald J.
Rennie"
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