Docket: IMM-3855-15
IMM-3838-15
Citation:
2016 FC 1259
Ottawa,
Ontario, November 10, 2016
PRESENT: The Honourable Madam Justice Elliott
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BETWEEN:
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FERENC FEHER
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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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ORDER AND REASONS
I.
Overview
[1]
The Respondent brings this motion pursuant to
Rule 369 of the Federal Courts Rules SOR/98-106 [Rules] for an
Order dismissing these joined applications for judicial review on the basis
that there is no live controversy remaining between the parties because the
underlying basis for the decisions being reviewed is now moot. The Applicant is
seeking judicial review of a refusal by an Inland Enforcement Officer to defer
his removal to Hungary and a negative reconsideration of that decision
[collectively, “the Decisions”]. However, on December 31, 2015, the Applicant
became eligible for a Pre-Removal Risk Assessment [PRRA]. Therefore, the
Respondent submits the applications for review are now moot. The Applicant now
cannot be removed without receiving notice of a PRRA at which time he can
benefit from a statutory stay of removal. In effect, he has received the
deferral he originally sought and the denials he seeks to review are no longer
in effect.
[2]
The Applicant acknowledges the applications to
set aside the Decisions are now moot. However he says there is still a
contested issue as, based on his being a national of a Designated Country of
Origin [DCO], he was subjected to differential and punishing treatment compared
to nationals of non-DCO countries. The Applicant claims the live issue between
the parties is the declaration he is seeking that s 112(2)(b.1) of the
Immigration and Refugee Protection Act, SC 2001, c27 [IRPA] is
of no force and effect as it applies to DCO nationals because it contravenes
s 15(1) of the Canadian Charter of Rights and Freedoms, Part
I of the Constitution Act, 1982, being Schedule B to the Canada Act,
1982 (UK), c 11 [Charter] and it is not justified under s 1 [the
Declaration]. While the Declaration is not relief currently requested in the
Applicant’s applications for leave and judicial review, the Applicant has moved
for leave to amend those applications to add the request for the Declaration.
II.
Background Facts
[3]
The Applicant is a Hungarian national of Roma
descent. He fled Hungary and entered Canada on June 28, 2011 where he made a
claim for refugee protection based on persecutory attacks. The Refugee
Protection Division [RPD] refused his claim. The central issues were
credibility and the availability of state protection. Leave for judicial review
was refused. A subsequent application to reopen his refugee claim due to a
denial of procedural fairness was filed with the RPD and was denied. All other
members of the Applicant’s family have subsequently been found to be Convention
refugees.
[4]
On August 18, 2015, the day that he received the
Direction to Report, the Applicant filed a request to defer his removal. In
that request, the Applicant argued that the additional 24 months which a DCO
national must wait before receiving a PRRA compared to a non-DCO national was
an unjustified infringement of s 15(1) of the Charter. The Applicant was
to report on August 25, 2015 for removal to Hungary. At that time, 32 months
had passed since his refugee claim had been rejected. But for the 36 month bar,
the Applicant would have been able to avail himself of the procedures that were
available to non-DCO nationals and he would have benefitted from a statutory
stay of removal until the PRRA decision was rendered.
[5]
On August 20, 2015 the first decision refusing
the Applicant’s deferral request was received. It did not resolve the
constitutional issue raised by the Applicant, as the Inland Enforcement Officer
considered the relevant provisions of the IRPA to be binding and the
officer distinguished other DCO cases in this Court that found s. 15 of the Charter
had been breached when there was no appeal to the Refugee Appeal Division
from an RPD decision.
[6]
The next day the Applicant filed an application
for leave and judicial review (IMM-3838-15) as well as a motion seeking a stay
of his removal to Hungary. As part of the original request for deferral the
Applicant had also filed updated country condition documents dealing with
deteriorating conditions in Hungary for Roma. Those documents had not been
before the original decision-maker so a reconsideration took place
(IMM-3855-15) but the deferral request was again denied. The reconsideration
decision also did not resolve the constitutionality issue raised by the
Applicant but noted the prior officer’s comments and found that a deferral
request was “not a forum to argue the constitutionality
of legislation.”
[7]
On August 24, 2015, Mr. Justice Boswell granted
the Applicant a stay with respect to the Decisions. He also ordered the two
applications be consolidated and heard together. The sole ground argued on the
stay motion was the constitutional issue.
[8]
On January 21, 2016, the Respondent brought this
motion to dismiss the applications on the basis of mootness because the
Applicant had become eligible for a PRRA once the 36-month bar expired on
December 31, 2015.
III.
Analysis
[9]
The Applicant seeks as relief that the Decisions
be set aside and his applications for deferral be reconsidered by another
officer. Both parties agree that aspect of the judicial review application is
moot. The Applicant submits that there are, however, a number of contested
issues remaining between the parties and they provide a firm factual basis for
adjudication.
[10]
The chief issue between the parties is that the
Applicant claims a right, pursuant to s 52 of the Charter to a
determination by the Court of whether his Charter rights were infringed
by the PRRA bar. When the Applicant filed his deferral request the grounds for
deferral were: (1) that his removal was being executed pursuant to legislation
that was an unjustified violation of s 15(1) of the Charter and as such
was unconstitutional and therefore unlawful; (2) in the 32 months since his
claim for protection was denied by the RPD, country conditions in Hungary had
worsened; (3) that fifteen other family members had received protection from
the RPD which showed there had been a miscarriage of justice and he was at
genuine risk if returned to Hungary.
[11]
The Respondent alleges the removal of the PRRA
bar makes the issues moot and also denies that any Charter infringement
took place.
[12]
The Applicant has moved to amend his
applications to add the Declaration as an additional remedy.
A.
Mootness Test
[13]
It is agreed by the parties that the two-step
test set out in Borowski v Canada (Attorney General), [1989] 1
SCR 342 [Borowski] applies to determine whether the Respondent’s motion
should succeed. As summarized by Mr. Justice Diner in Harvan v Canada
(Citizenship and Immigration), 2015 FC 1026 at paragraph 7, the test is:
[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.
[14]
The parties have agreed that the aspect of the
applications seeking to set aside the Inland Enforcement Officer’s decision and
require reconsideration of the Applicant’s deferral request is moot. The
Applicant maintains, though, that he has the standing pursuant to s 52 of the Charter
to a declaration striking down the 36-month PRRA bar and therefore the
applications are not moot.
[15]
In support of his right to relief, the Applicant
says he has been directly affected by the 36-month PRRA bar. He submits he has
already suffered from discriminatory treatment based solely on his country of
origin. As the Applicant put it, he was “compelled to
undertake the expense of retaining counsel to prepare and submit a deferral
request. When it was refused, he was compelled to undertake the further expense
of retaining counsel to prepare and file a motion for a stay of his removal.
And while awaiting a decision on his motion, the Applicant was forced to
undergo the hardship of packing up his life in Canada and the psychological
distress of not knowing until one day prior to his removal whether his deferral
request would be stayed.” Had he been a national of a non-DCO country,
none of that harm would have arisen as he would have been entitled
automatically to a PRRA as of right.
[16]
The declaratory judgment that the Applicant’s Charter
rights have been infringed or denied is the nature of the relief sought
by the Applicant. The actual proceeding is the application to set aside
the Decisions. Once those applications are moot, as is conceded, there is no
proceeding to anchor the claim for relief. Declaratory relief is not available
under s.18.1 of the Federal Courts Act, RSC 1985, c F-7 or under Rule 64
of the Rules as a free-standing right. The relief sought has to be
conveyed by an underlying application that exists on the merits: Bonamy v
Canada (Attorney General), 2009 FCA 156 at para 12. A declaration of unconstitutionality
is a form of relief that can be sought against the federal government in the
Federal Court under subs 17(1) of the Federal Courts Act, but the Rules
require that any such proceeding be brought as an action.
[17]
For these reasons, the applications are moot.
[18]
I turn now to the second stage of the Borowski
test.
(1)
Adversarial Context
[19]
The Applicant maintains his Charter
rights have been infringed and he has suffered real consequences including
expenses in retaining counsel to fight his deportation, psychological distress
in not knowing whether he would be granted a stay or not and the hardship of
packing up his life in Canada in case he had to leave. The Respondent denies
that the Applicant’s Charter rights have been infringed.
[20]
Given the positions of the parties with respect
to the alleged infringement of the Charter rights of the Applicant and,
in light of the decisions in this Court of Y.Z. v Canada (Citizenship and
Immigration), 2015 FC 892 and Canadian Doctors for Refugee Care v Canada
(Attorney General), 2014 FC 651, I find there is a clear adversarial
context between the parties with respect to the constitutionality of s 15(1)
and the DCO provisions of the IRPA. I also have no doubt that the
Applicant’s solicitor of record, the Refugee Law Office of Legal Aid Ontario,
will diligently pursue the Applicant’s constitutional arguments regardless of
whether the outcome of this application will affect the likelihood of the
Applicant being removed from Canada.
(2)
Judicial Economy
[21]
The Federal Court is a statutory court.
Historically there was some doubt as to whether the Court had the power to
grant a declaration in an application for judicial review. As a result,
applicants arguing that a decision was unlawful because it was based on an
unconstitutional law or ultra vires regulation would bring both an
application under s 18.1 the Federal Courts Act for judicial review of a
decision and, contemporaneously, file a parallel action under subs 17 seeking
the declaratory relief. This approach continued for some time as the Court
itself was divided on the issue.
[22]
The Court of Appeal settled this issue in Moktari
v Canada (Minister of Citizenship and Immigration), [2000] 2 FCR 341 (CA) [Moktari].
It determined that an applicant would not be required to maintain a parallel
action under subs 17(1) of the Federal Courts Act simply to pursue the
same declaratory relief as was sought on judicial review. The relief sought in Mokatri
was a declaration that s 52 of the Immigration Act, RSC 1985, c I-2 was
unconstitutional. The Minister brought a motion to strike the action on the
basis that it was unnecessary in light of the applicant’s application for
judicial review. The Court of Appeal clarified the interpretation of s 18
of the Federal Courts Act: the applicant was allowed to add a request
for declaratory relief to an existing application for judicial review brought
on the same basis. As a result, any action seeking a declaration when the same
declaration is sought in a judicial review application discloses no reasonable
cause of action and should be struck. In arriving at this determination, the
Court reasoned that “constitutional issues raised in
immigration proceedings can be conveniently dealt with in a judicial review
proceeding” and “to permit parallel proceedings
arising from a single decision would diminish the capacity of this Court to
dispense justice in an expedient and efficient manner”: Moktari
paras 5-6.
[23]
In the concern for judicial economy, it is my
view that it would be perverse to dismiss the current application for judicial
review. This would force the Applicant to pursue his remedy of declaratory
relief in an action under subs 17(1) of the Federal Courts Act when such
an action, if brought earlier, would have been struck on the basis that the
relief could be sought in an application for judicial review. That would not
only be an unnecessary use of judicial resources, but would also be punitive to
the Applicant. It would be the other side of the coin to the situation in Moktari
and, for the reasons delineated in Moktari, I do not find it either
expedient or efficient to impose such a process on the Applicant.
[24]
Recently, another application for judicial
review has been received by the Court in which s 112(2)(b.1) is being
challenged as unconstitutional. Factually, this other case also involves denial
of a PRRA to a DCO national. In that case, the PRRA bar does not expire for
approximately two years. The Applicant’s solicitor of record is also solicitor
of record for the applicant in that case. The issues raised, as well as the
relief sought, are the same in both instances. I therefore provided the parties
with the opportunity to make further submissions with respect to the current
motion to dismiss for mootness in light of the existence of this other case.
The Respondent submits that the other case is more suitable for adjudication as
the factual basis persists and the outcome will have a practical effect on the
parties. The Applicant submitted the existence of the second case was
irrelevant because the Applicant’s constitutional injury meant that this
application was not moot on the first branch of the Borowski test.
[25]
Given the factual differences between the cases
with respect to whether the PRRA bar has expired and the fact that this
Applicant has alleged he has suffered concrete damages, it is my view that for
complete consideration of the alleged Charter infringement it will be
useful to have adjudication upon both sets of facts. There is also judicial
economy in resolving both aspects of the PRRA bar for DCO nationals by the way
of the summary proceeding of an application rather than an action.
(3)
Would the Court be Encroaching on the
Legislative Sphere
[26]
But for the finding that the application is moot
because the Applicant is now PRRA-eligible there is no doubt this judicial
review would have proceeded to adjudication. Review of decisions that may be
unconstitutional is one of the roles of the Court. There is no encroachment on
the legislative sphere by allowing this application to continue.
[27]
In conclusion, while this application may be
technically moot, I will exercise my discretion under the second stage of the Borowski
test and dismiss the Respondent’s motion.
B.
Motion to Amend
[28]
The Applicant has also brought a motion in
writing under rule 369 of the Rules seeking an amendment to his
application for judicial review in order to add a specific request for the
Declaration as a remedy. The Respondent did not file a motion record within the
timelines specified by rule 369, but did submit a letter stating that because
the applications are moot, no amendment to the applications should be granted.
The Respondent did not specify any other reasons why the relief should not be
granted. For the purposes of this motion, I will regard the Respondent’s letter
as if it were written submissions in opposition to the Applicant’s motion under
rule 369.
[29]
The basis of the Applicant’s motion is that the
declaratory relief sought was inadvertently omitted in the Application for
Leave and for Judicial Review, although the unconstitutionality of the Decision
was specifically referred to as a ground for relief. The request for such a
declaration was argued as being part of the relief sought in the Applicant’s
memorandum of argument on the leave stage but was never formally part of the
application itself. The Applicant did include a request for catch-all relief of
“[s]uch further and other remedies as counsel may
advise and this Honourable Court may allow.”
[30]
Under rule 75 of the Rules, the Court may
allow a party to amend a document on such terms as will protect the rights of
all the parties. In Canderel Ltd v Canada, [1994] 1 FCR 3 (CA), the
Federal Court of Appeal set out the test on whether to grant an amendment: an
amendment should help determine the real issue in dispute, must not create
prejudice to the opposing party that cannot be compensated by costs and must
serve the interests of justice.
[31]
It is clear that the real issue in dispute from
the beginning has been whether the 36-month PRRA bar violates s 15(1) of the Charter.
Constitutional issues are determined on the correctness standard. If a
statutory provision violates a section of the Charter and cannot be
saved by s 1, some form of declaratory remedy will normally issue, whether a
provision is struck down, read down or whether additional text is read in. In
my opinion, including the Declaration as one of the remedies requested in the
application will not prejudice the Respondent in any way and will serve the
interests of justice. The Applicant’s motion to amend is therefore granted.
ORDER
THIS COURT ORDERS that:
1.
The Respondent’s motion to dismiss these
applications is denied.
2.
The Applicant is granted leave to amend his
Applications for Leave and for Judicial Review substantially in the forms in
Exhibit “F” of his motion record. The amended applications shall be filed
within fifteen days of this order.
“E. Susan Elliott”
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