Docket: IMM-2913-15
Citation:
2016 FC 267
Ottawa, Ontario, March 7, 2016
PRESENT: The
Honourable Mr. Justice Southcott
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BETWEEN:
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OSATO OSAKPAMWAN,
(BARRY) EGUAKUN ERHARUY JOHNSON
(BEATRICE) EGUAKUN OGHOSA JOHNSON
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Applicants
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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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JUDGMENT AND REASONS
[1]
This is an application for judicial review of a
decision of the Canada Border Services Agency dated June 20, 2015, wherein an
Inland Enforcement Officer [the Officer] refused the Applicants’ request for
deferral of their removal from Canada to Nigeria.
[2]
For the reasons that follow, this application is
dismissed as moot.
I.
Background
[3]
The Applicants entered Canada on March 5, 2013.
The Principal Applicant, Osato Osakpamwan, is a Nigerian citizen and obtained
Italian permanent residency in 2004. Her two children, the Minor Applicants,
were born in 2001 and 2007 respectively. On March 25, 2013, the Applicants initiated
a claim for status as Convention Refugees, which was refused by the Refugee
Protection Division [RPD] of the Immigration and Refugee Board on November 13,
2013, as they were excluded under Article 1(e) of the Convention because of
their status as permanent residents of Italy. On January 29, 2014, the Refugee
Appeal Division [RAD] dismissed their appeal, and leave to challenge this
decision by judicial review was subsequently denied by the Federal Court. The
Applicants state that, since their RPD hearing, their permanent residence
status in Italy has lapsed.
[4]
Subsequently, the Applicants applied for a
Pre-Removal Risk Assessment [PRRA]. On March 10, 2015, they were granted a 60
day deferral of their removal to allow for expedited processing of a spousal
sponsorship of the Principal Applicant. This was refused on March 26, 2015 and
challenged by judicial review.
[5]
On June 18, 2015, the Applicants submitted a
request for redetermination of the PRRA, based on the fact that the risk of
return to Nigeria had never been assessed, as the RPD, RAD and PRRA officer had
all considered only the risk of return to Italy. The Applicants also requested
that their removal to Nigeria be deferred due to the pending judicial review of
the spousal sponsorship application, to allow a redetermination of the PRRA,
and due to the best interests of the children whose formative years had been in
Canada.
[6]
On June 19, 2015, the Officer issued the
decision refusing the deferral request. On June 22, 2015, the Applicants
applied for leave and judicial review and sought a stay of removal from the
Court. However, CBSA subsequently cancelled their removal to Nigeria, and they
continue to live in Canada. The judicial review of the sponsorship decision was
also subsequently resolved, and the sponsorship application is now being
redetermined. Neither party has any information on the status of the
Applicants’ request for redetermination of the PRRA.
II.
Impugned Decision
[7]
The Officer noted that the pending application
for judicial review of the spousal sponsorship does not deter the enforcement
of a removal order. The Applicants did not present any evidence to demonstrate
that they could not pursue their application for judicial review outside Canada
following the enforcement of this removal order. Also, they did not present any
evidence to establish that Citizenship and Immigration Canada had agreed to
re-determine the PRRA and that a decision would be imminent.
[8]
Moreover, the Officer noted that a request to
defer removal submitted to an Inland Enforcement Officer is not the appropriate
mechanism to advance allegations of risk that one could have reasonably
advanced to the RPD and in the PRRA process, namely the prospect that the
Applicants allegedly face risk in Nigeria. The evidence postdating the PRRA
decision did not satisfy the Officer that there was a compelling risk in
Nigeria that would warrant the delay of removal.
[9]
The Officer also referred to being alert and
sensitive to the best interests of the Minor Applicants but noted that the
Principal Applicant made arrangements to travel with her children and that
there was no evidence that, as their sole custodial parent, she would be unable
to represent their best interests.
[10]
Having reviewed all the evidence submitted, the
Officer was not satisfied that it established the exceptional nature of a case
that would provide grounds to justify deferral of removal from Canada.
III.
Issues and Standard of Review
[11]
The Applicants submit the following issues for
consideration by the Court:
A.
Did the Officer err in denying the Applicants’
deferral request when the failure to defer will expose the Applicants to the
risk of death, extreme sanction or inhumane treatment?
B.
Did the Officer fail to consider and misconstrue
relevant evidence?
C.
Did the Officer err in that he/she was not
alert, alive and sensitive to the short-term best interests of the Principal
Applicant’s son?
D.
Did the Officer err in not considering the new
risks that have occurred following the consideration of the Applicants’ first
PRRA decision that warrant a new review?
E.
Was the Officer reasonable in his or her analysis
in that there was justification, transparency and intelligibility within the
decision-making process and therefore, his or her decision should be allowed to
stand?
F.
Did the cumulative errors made by the Officer
render his or her decision unfair or constitute errors that were central to the
issues in the case and therefore warrant another consideration be made by
another panel comprised of another officer?
[12]
The standard of review applicable to this
application is reasonableness (New Brunswick (Board of Management) v.
Dunsmuir, 2008 SCC 9 at para 47).
[13]
Based on the arguments canvassed below, I
consider the issues for consideration on this application to be:
A.
Is the application moot?
B.
Was the Officer’s decision reasonable?
IV.
Submissions of the Parties
(1)
Is the application
moot?
A.
Respondent’s Position
[14]
The Respondent notes that the Applicants’
removal was cancelled by CBSA and they continue to reside in Canada while
awaiting the redetermination of the Principal Applicant’s sponsorship and PRRA.
As such, the fundamental remedy sought by the Applicants before this Court,
which was to defer their removal, has been achieved, rendering the challenge in
the application for judicial review moot. The Respondent relies on Borowski
v Canada (Attorney General), [1989] 1 S.C.R. 342 [Borowski].
B. Applicants’
Position
[15]
In support of their position that the Court
should hear and decide this application, notwithstanding that their removal was
cancelled, the Applicants submit that there continues to be an adversarial
relationship between the parties to this application with respect to the
circumstances under which the Applicants may be removed from Canada. The
question remains as to whether the Applicants may be removed from Canada to
Nigeria prior to the completion of an assessment of their risk of return to
Nigeria.
[16]
On the subject of judicial economy, the
Applicants submit that both parties have already expended considerable
resources on this application and, absent any indication from the Respondent
that there is no intention to remove the Applicants prior to the determination
of the second PRRA, it is apparent that the same issues raised in these
materials will arise again in subsequent litigation if/when there is a further
attempt to remove the Applicants.
[17]
Finally, the Applicants submit that there is no
concern that deciding the issues raised in this application would result in
this Court intruding into the legislative sphere.
(2)
Was the Officer’s decision reasonable?
A.
Applicant’s Position
[18]
The Applicants submits that they are not in a
situation where the negative consequences of the removal can be remedied by
re-admittance to Canada. Rather, the Officer should have considered the new
evidence provided by the Applicants in their deferral request that arose
following the first PRRA decision that exposes them to a risk of serious
personal harm if returned to Nigeria. The Applicants emphasize that they have
had their risk assessed only in relation to Italy. The Officer should therefore
have deferred removal until the PRRA unit has had an opportunity to reassess
the PRRA in light of the new information now available that the country to
which the Applicants were being removed was Nigeria. They rely on Shpati v
Canada (Minister of Public Safety & Emergency Preparedness), 2011 FCA
286 at para 52 and Etienne v Canada (Minister of Public Safety &
Emergency Preparedness), 2015 FC 415 at paras 53-55.
[19]
Lastly, the Applicants argue that the Officer
erred in assessing the best interests of the children affected by the decision.
B.
Respondent’s Position
[20]
The Respondent argues that the Officer
considered this matter and noted that there was insufficient evidence that the
Applicants face a compelling risk in Nigeria.
[21]
The Officer also noted that no evidence was
presented that their PRRA application would be redetermined. Taking into
account the fact that the mere filing of a Court application does not
necessarily affect normal immigration processing and does not preclude the
Respondent from enforcing a removal order, it was reasonable for the Officer
not to defer removal.
[22]
The Respondent also argues that it is not within
the purview of an Officer to conduct a full humanitarian and compassionate
assessment. The Respondent notes that the Applicants did not submit a
humanitarian and compassionate application throughout their time in Canada and
argues that they did not present sufficient evidence of exigent personal
circumstance relating to the Minor Applicants.
V.
Analysis
[23]
My decision is to dismiss this application on
the basis that it is moot. The parties both rely on Borowski for the
principles governing the Court’s analysis of mootness. In the recent decision in Harvan v Canada (Minister of Citizenship and Immigration), 2015
FC 1026, Justice Diner
succinctly outlined the relevant principles to be 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 at paras 15-17, and 29-40 [Borowski])
[24]
The Applicants acknowledge that this proceeding is moot for purposes of the first step in the Borowski test. I agree with that
position, as the Applicants’ removal from Canada has been deferred, and a
determination whether the Officer had previously erred in refusing to defer
their removal therefore cannot have any practical effect on solving a live
controversy between the parties.
[25]
I am therefore required to consider, applying
the second step in the Borowski analysis, whether to exercise my discretion to decide this matter
notwithstanding that it is moot. The first policy rationale under that analysis
is whether there remains an adversarial relationship between the parties. The
Applicants note that no decision has been made on the request for
re-determination of their PRRA or even whether it will be re-determined. Nor do
they know what they outcome of the sponsorship application will be. They are
concerned that they may in the future find themselves in the same position they
were in when the impugned decision was made, facing a removal order, and argue
that this represents the sort of adversarial context contemplated by Borowski.
[26]
In considering this question, I am guided by the decision in Azhaev v Canada (Minister of Public
Safety and Emergency Preparedness), 2014 FC 219 [Azhaev], in which
Justice Manson concluded as follows when considering the policy rationale of an
adversarial relationship in the context of a moot deferral decision:
22 While this Court has room to
exercise its discretion to hear the merits of the instant application, as
guided by the principles in Borowski, I disagree with the Applicant that
there is an adversarial context remaining in this matter. In Borowski,
the Court discussed an adversarial context as one where "collateral
consequences" arise in related proceedings. For example, if the resolution
of an issue in an otherwise moot proceeding determines the availability of liability or prosecution in a
related proceeding between the parties, there remains an adversarial context
between them. In the instant application, no collateral consequences will arise
as a result of whether the Officer erred in his decision.
[27]
I do not consider the present case to be one
where the Applicants can establish collateral consequences to result from
whether the Officer erred in the impugned deferral decision. As argued by the
Respondent, the Applicants are currently residing in Canada with no removal
scheduled. The outcome of the sponsorship application and the request for
redetermination of the PRRA are unknown. While the Applicants could face a
future removal order, that is at this stage entirely speculative. Nor can the
Court know what the status or outcome of the sponsorship and PRRA or other
relevant circumstances may be at the time of any such removal order.
[28]
There is no basis presently to conclude that the
Applicants face collateral consequences arising from the particular errors
alleged to have been made in the impugned deferral decision. If the Applicants
do in the future face another removal order and in turn request deferral, the
enforcement officer considering that request will have to consider the
circumstances existing at that time, and if deferral is refused, any challenge
to that refusal should be raised in the context of those circumstances and the
reasons for that refusal. As one can currently only speculate about any of
these future events, I do not consider the necessary adversarial context
contemplated by the Borowski analysis to presently exist.
[29]
Turning to the second policy rationale under Borowski,
the concern for judicial economy, the Applicants argue that the parties and the
Court have already expended substantial resources in the preparation for and
hearing of this application. Again, consideration of
the Court’s analysis of this factor in Azhaev is instructive. At paragraphs 23 to 24 of that decision, Justice
Manson stated as follows:
23 The second factor enunciated in Borowski,
that of judicial economy, weighs against the Applicant as well. In one sense,
judicial economy is related to being mindful of expending scarce judicial
resources to hear an academic argument (Borowski at para 34). This is
not relevant in the instant application, as Court resources have already been
allocated. However, Borowski does refer to judicial economy in another
way: to resolve ongoing uncertainty in the law to facilitate the expeditious
resolution of similar cases in the future (Borowski at para 35). The
Applicant’s argument for this Court to exercise its discretion is based largely
on this principle. He argues that it will help future litigants, including
himself, to develop the jurisprudence on what “personal exigencies” justify a
deferral of removal. However, the Court in Borowski at para 36
specifically warned against the application of this factor in the manner
suggested by the Applicant:
The mere fact, however, that a case
raising the same point is likely to recur even frequently should not by itself
be a reason for hearing an appeal which is moot. It is preferable to wait and
determine the point in a genuine adversarial context unless the circumstances
suggest that the dispute will have always disappeared before it is ultimately
resolved.
24 I find that this factor also
weights against hearing the instant application.
[30]
As in Azhaev, Court resources have already been allocated to the hearing of this
application. On that basis, Justice Manson considered the factor of judicial
economy to be irrelevant. However, he also considered this factor from the
perspective argued by the applicant in that case, that deciding the moot matter
might facilitate expeditious resolution of future disputes, involving that
applicant or other litigants. In a sense, this is the same argument raised by
the Applicants in the present case, not from the perspective of adding to the
jurisprudence for the benefit of litigants generally, but because a decision on
the alleged errors in the deferral decision would assist the Applicants if they
faced a removal order in the future.
[31]
I reach the same decision on this argument as
did the Court in Azhaev.
There is no suggestion that this is the sort of dispute
that will have always disappeared before it is ultimately resolved. It is
therefore preferable to wait and determine the issues raised by the Applicants
in a genuine adversarial context if they do arise again.
[32]
I agree with the Applicants that the third
factor under Borowski analysis, intrusion into the legislative sphere,
is not a concern in this case, such that this factor arguably favours the
Applicants. However, the first two factors weigh against the Applicants and,
considering and weighing all three factors, I do not consider this to be a case
where the Court should exercise its discretion to decide the application notwithstanding
that it is moot.
[33]
Neither party proposed a question of general
importance for certification for appeal.
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