Docket: IMM-718-18
Citation: 2018 FC 1032
Ottawa, Ontario, October 18, 2018
PRESENT: The Honourable Mr. Justice Zinn
| BETWEEN:
|
| KIRIJA LINTON AND
LINTON ASIRVATHAM
|
| Applicants
|
| and
|
| MINISTER OF CITIZENSHIP AND IMMIGRATION CANADA
|
| Respondent
|
JUDGMENT AND REASONS
[1]
The applicants sought judicial review of the decision of the Acting Migration Program Manager at the Canadian High Commission in Colombo, Sri Lanka [CHC-Colombo], refusing to reopen the overseas application for permanent residence of Kirija Linton as a dependent of an in-Canada protected person, her husband, Linton Asirvatham.
[2]
It is accepted by the parties that this application is moot because the application for permanent residence was recently reopened, Ms. Linton was granted a permanent resident visa, and she now resides in Canada with her husband.
[3]
The applicants ask the Court to exercise its discretion and hear the application for judicial review notwithstanding that it is moot. For the reasons that follow, the Court shall not do so.
[4]
The applicants are Tamils from Sri Lanka. Ms. Linton’s husband left Sri Lanka in 2010; became a Convention Refugee in Canada in 2014; and then a permanent resident in 2016. In 2016, Ms. Linton sought permanent residency as a family member of a protected person. The officers in the visa post at CHC-Colombo requested several documents from her, including her husband’s Basis of Claim [BOC] form from his refugee claim. Ms. Linton provided all of the documents except for the BOC.
[5]
From March 2016 until March 2017, Ms. Linton and CHC-Colombo wrote back and forth about the need for the BOC. Ms. Linton, by way of an affidavit, ultimately provided a version of the BOC with no narrative section. This did not satisfy CHC-Colombo.
[6]
CHC-Colombo told Ms. Linton that they required the BOC with the narrative for admissibility reasons. She took the position that she was not required to submit it, noting that:
BOCs are not required to be submitted;
Her husband’s claim raised no issues of admissibility; and
BOCs are confidential in Canada, and to send the BOC to Sri Lanka might expose her and her husband to risk as it could be viewed by Sri Lankan nationals who work for CHC-Colombo.
[7]
It is suggested that the reason CHC-Colombo wanted the BOC was to “fish”
for inconsistencies between husband and wife, either to make a negative credibility finding against her, or to justify a collateral attack on her husband’s claim.
[8]
In March 2017, Ms. Linton’s application for a permanent resident visa was rejected under subsection 16(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 for failure to produce all relevant evidence and documents that are reasonably required, and under subsection 11(1) as the officer was not satisfied that she was not inadmissible and met the requirements of the Act. Leave to review this decision was refused by this Court on August 23, 2017.
[9]
In January 2018, Ms. Linton asked CHC-Colombo to re-open her permanent residency application, saying that the scrutiny which led to the BOC being required was based on stereotyping. The Manager responded that the file was closed and the initial decision stood. It is this decision that gives rise to this judicial review application.
[10]
In the course of this litigation, CHC-Colombo became aware that it need not obtain the husband’s BOC from Ms. Linton. It could obtain it electronically directly from the Immigration and Refugee Board pursuant to the Memorandum of Understanding between The Department of Citizenship and Immigration (CIC), The Canada Border Services Agency (CBSA) and The Immigration and Refugee Board of Canada (IRB) [the MOU], and its annex, Information Sharing Annex Between Citizenship and Immigration Canada (CIC), The Canada Border Services Agency (CBSA) and the Immigration and Refugee Board of Canada [the Annex]. At the hearing, Ms. Jackman advised the Court that while she had been able to locate the Memorandum of Understanding on the internet, she had been unable to locate the annexed document sharing agreement. Both documents in both official languages are attached to these Reasons as Appendix A.
[11]
Upon becoming aware of the terms of the MOU and Annex, CHC-Colombo reopened Ms. Linton’s application for a permanent residence visa. After a review of her application and all documents it deemed to be relevant, including her husband’s BOC, the decision-maker had no admissibility concerns and the requested visa was issued.
[12]
The leading case on mootness is Borowski v Canada (Attorney General), [1989] 1 S.C.R. 342 [Borowski]. The Supreme Court of Canada at paragraphs 31, 34 and 40 outlined the relevant factors a court is to consider when determining whether to exercise its discretion and hear a matter even though there is no longer any live controversy. These factors are: (1) the existence of an adversarial relationship between the parties, (2) concern for judicial economy, and (3) awareness of the Court’s proper law-making function.
[13]
At paragraph 40 of Borowski, the Supreme Court of Canada instructed judges that the application of these factors is not a mechanical process and that not all factors needed to weigh towards the same result:
In exercising its discretion in an appeal which is moot, the Court should consider the extent to which each of the three basic rationalia [sic] for enforcement of the mootness doctrine is present. This is not to suggest that it is a mechanical process. The principles identified above may not all support the same conclusion. The presence of one or two of the factors may be overborne by the absence of the third, and vice versa.
[14]
The applicants submit that there remains an adversarial relationship between the parties because neither applicant ever agreed to have the BOC examined. In fact, Ms. Linton refused the request to produce the BOC even though doing so prolonged her separation from her spouse. They submit that the adversarial relationship continues because both have been wronged by the respondent.
[15]
I agree with the respondent’s submission that there is no longer an adversarial context between the parties because Ms. Linton’s permanent residence visa application was re-opened, reconsidered and approved. Borowski tells us that the adversarial context may continue despite the cessation of the live controversy in the litigation where there “may be collateral consequences of the outcome that will provide the necessary adversarial context.”
The examples provided by the Supreme Court are where there are additional outstanding charges brought by the respondent (Vic Restaurant Inc v City of Montreal, [1959] S.C.R. 58 [Vic Restaurant]), or the presence of intervenors (Law Society of Upper Canada v Skapinker, [1984] 1 S.C.R. 357). Here there are no other matters between the applicants and the respondents that would constitute collateral consequences.
[16]
The applicants submit that they have been wronged by the respondent by the non-consensual accessing of their information. That may be; however, their remedy appears to the Court to be a complaint under section 29 of the Privacy Act, RSC 1985, c P-21. This alleged wrong does not appear to be anything relating to any provision of the Immigration and Refugee Protection Act, or a matter that must attract the attention of this Court at this time.
[17]
The second factor to consider is judicial economy. Borowski teaches that scarce judicial resources may be used to hear moot matters where the decision will have some practical effect on the rights of the parties (as in Vic Restaurant), where an important question may otherwise evade review, and in cases which raise an issue of public importance the resolution of which is in the public interest.
[18]
There will be no practical effect on the applicants if this application is heard and determined on its merits. The applicants submit that this question may evade review as it was only as a result of this litigation that they learned of the MOU and Annex permitting the respondent to access the BOC without consent. It is submitted that other applicants are unlikely to ever know of this practice. The applicants also suggest there is a public interest because this practice is discriminatory to Tamils and because the accessing of BOCs is done automatically in all cases from CHC-Colombo where there is a large proportion of Tamil applicants.
[19]
As noted above, the question of whether the non-consensual access to the BOC is a breach of privacy is a question best left to the Privacy Commissioner. These Reasons are a matter of public record. If the sharing of information was not previously known, it now is, and the MOU and Annex in Appendix A are accessible to all. I am unable to accept that this will not become known to other applicants, Tamil or not. The issue of requesting that applicants for permanent residence visas provide a copy of the BOC of their spouse is unlikely to arise again, as the decision-makers will now be aware that they have unilateral access to such documents. The unilateral access of protected persons’ IRB documents is not an issue squarely before the Court in this application, as it happened subsequent to the decision under review. That question can be litigated in a matter that is not moot. At best, there is only marginal value in using the scarce resources of the Court to hear the matter now.
[20]
Lastly, the applicants submit that there is a need to clarify the lawfulness of sharing private information between the parties to the agreements in Appendix A. They say that the Court would not be creating law but interpreting legislation that is constantly being used. Again, the lawfulness of the arrangement is a matter that may be determined by the Privacy Commissioner, if a compliant is made. There is no need at this time for the Court to engage with this issue.
[21]
For these reasons, I shall not exercise my discretion to hear this moot application. Although this judgment dismisses the application because it is moot, the parties were asked if they had any question they wished to the Court to consider certifying. No question was posed and there is none given the nature of the case.
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