Docket: IMM-2334-15
Citation:
2016 FC 159
Ottawa, Ontario, February 9, 2016
PRESENT: The Honourable Mr. Justice Southcott
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BETWEEN:
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TSISKARA
KARDAVA
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Applicant
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and
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THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Respondent
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ORDER AND REASONS
I.
Background
[1]
The Respondent filed a motion record on January
13, 2016 in support of a motion in writing under Rule 369 of the Federal
Court Rules [the Rules] to dismiss the Applicant’s application for judicial
review and to vacate the hearing date of January 27, 2016;
[2]
The Applicant’s underlying application seeks judicial
review of the decision of the Refugee Protection Division [RPD] of the
Immigration and Refugee Board dated April 27, 2015 that the Applicant had
abandoned his claim for status as Convention refugee pursuant to section 96 of
the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA] or a
person in need of protection pursuant to section 97 of IRPA.
[3]
The grounds for the motion are that the
application is moot, because on July 27, 2015 the Applicant filed an
application with the RPD to have his claim reopened, and on July 30, 2015 the
RPD allowed that application.
[4]
The Applicant, who is self-represented, did not
file any response to the Respondent’s motion within the time provided by the
Rules. Because I did not wish to rule on the motion without the benefit of
submissions from the Applicant, I issued an Order under Rule 369(4) on January
25, 2016, scheduling the Respondent’s motion to proceed by way of oral hearing
when the parties appeared for the hearing of the application for judicial
review.
[5]
After hearing the parties’ oral submissions on
the motion on January 27, 2016, I ruled from the bench that the motion was granted,
the application dismissed, and the hearing date vacated, with an Order with
Reasons to follow. This is that Order and Reasons.
II.
Issue
[6]
The sole issue to be considered on this motion
is whether the Applicant’s application for judicial review should be dismissed
as moot.
III.
Positions of the Parties
A.
Respondent’s Submissions
[7]
The Respondent recognizes that the Court is
generally reluctant to dismiss applications for judicial review on motion but
cites authority that mootness represents a ground for finding no possibility of
success and striking out or dismissing an application (see Rahman v Canada (Minister
of Citizenship and Immigration), 2002 FCT 137 at paras 8-10 [Rahman]).
[8]
The Respondent then refers to the principles
surrounding the analysis of mootness as advanced in Borowski v Attorney
General of Canada, [1989] 1 S.C.R. 342 [Borowski]. The Respondent
notes that the test for mootness involves a two-stage analysis. At the first
stage, the Court must consider whether its decision will have a practical
effect on the rights of the parties. At the second stage, the Court must
consider whether to exercise its discretion and make a determination on the
merits, notwithstanding that the matter is technically moot.
[9]
The Respondent argues that a decision on the
merits in this case will not have the effect of resolving a controversy between
the parties, as the Applicant has already been granted by the RPD the relief
that he is seeking in his judicial review application. The Respondent further
submits that the Court should not exercise its discretion to hear and decide
the matter notwithstanding that it is moot. Its position is that judicial
economy militates against this. It is preferable to determine disputes in a
genuine adversarial context unless the circumstances suggest that the dispute
will always disappear before it is ultimately resolved, and this is not a case
where it is in the public interest to address the merits in order to settle the
law or to avoid some social cost.
B.
Applicant’s Submissions
[10]
At the hearing of the motion, the Applicant
communicated with the Court through a Russian-English interpreter. I explained
the nature and basis of the Respondent’s motion to the Applicant and asked if
he opposed the motion. It appeared from his responses that he did. Accordingly,
I asked him to explain if there were any benefits that he thought would be achieved
if I were to hear and decide his judicial review application, in the context of
his claim for refugee protection having already been reopened, and whether
there were any other submissions he wished to make in response to the motion.
[11]
The Applicant referred to concern that the “other court”, by which I understood him to be
referring to the RPD, had not believed him in the past and would not believe
him in the future. He referred to having advised the RPD at his abandonment
hearing that he saw devils present and stated that the RPD disbelieved him and
thought he was lying or trying to buy time.
IV.
Analysis
[12]
As a preliminary point, I note and rely
on the decision in Rahman, as authority for dismissing an application for judicial review on
motion, without hearing the application itself, where the application is
without any possibility of success because it is moot.
[13]
In the recent decision in
Harvan v Canada (Minister of Citizenship and Immigration), 2015 FC 1026, Justice Diner succinctly outlined the
principles relevant to a mootness analysis, as derived from Borowski:
[7] The test for mootness comprises a two-step analysis. The first step
asks whether the Court's decision would have any practical effect on solving a
live controversy between the parties, and the Court should consider whether the
issues have become academic, and whether the dispute has disappeared, in which
case the proceedings are moot. If the first step of the test is met, the second
step is — notwithstanding the fact that the matter is moot — that the Court
must consider whether to nonetheless exercise its discretion to decide the
case. The Court's exercise of discretion in the second step should be guided by
three policy rationales which are as follows:
i. the presence of an adversarial context;
ii. the concern for judicial economy;
iii. the consideration of whether the Court
would be encroaching upon the legislative sphere rather than fulfilling its
role as the adjudicative branch of government.
(See Borowski v Canada (Attorney General),
[1989] 1 S.C.R. 342 (S.C.C.) at paras 15-17, and 29-40 [Borowski])
[14]
My decision is to grant the
Respondent’s motion and dismiss the Applicant’s application for judicial
review, on the basis that it is moot and that the relevant factors do not
warrant an exercise of discretion to hear the application despite such
mootness.
[15]
The application seeks to set aside a decision of the RPD that the
Applicant had abandoned his claim for refugee protection. The application is
moot because the Applicant has applied to the RPD to have his claim re-opened,
and that application was granted on July 30, 2015. The Respondent’s counsel
advised at the hearing that she had checked with the Immigration and Refugee
Board the previous day and confirmed that the Applicant’s claim was re-opened
and that the Applicant would have an opportunity to put forth his entire claim
for refugee protection, although that had not yet been scheduled. As such, a
decision on the application for judicial review would not have any practical
effect in solving a live controversy between the parties.
[16]
Turning to the second step of the Borowski analysis, I have considered the relevant factors in the context of
the Applicant’s submissions. Any concerns he has about the RPD believing him in
his re-opened refugee proceeding will have to be addressed before the RPD in
that proceeding. The present judicial review application is not capable of
addressing those concerns. As such, I find that this application does not
represent an adversarial context in which his concerns can be addressed. For
the same reasons, I see no compelling reason why judicial resources should be expended
on hearing and adjudicating this application.
[17]
On the subject of the third Borowski factor, I
do not consider that deciding the application would raise concerns about the Court encroaching upon the legislative sphere as opposed to
fulfilling its adjudicative role. However, I also note the analysis in Sogi
v Canada (Minister Citizenship and Immigration), 2007 FC 108, which
considers, as part of third factor, whether performing the adjudicative
function to decide a matter that is otherwise moot would generate new law that is
needed from the Court. I see no scope for such a benefit arising from the case
at hand.
[18]
As such, having taken into account the Borowski factors, I have not identified any basis for an exercise of
discretion to hear the application notwithstanding that it is moot.
[19]
My Order accordingly grants the Respondent’s motion, dismisses the
application, and vacates the hearing date for the application. The Respondent
did not seek costs, and none are awarded.
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