Docket: IMM-1390-24
Citation: 2025 FC 932
Vancouver, British Columbia, May 22, 2025
PRESENT: The Honourable Madam Justice Strickland
|
BETWEEN: |
|
YUZHU MAO |
|
Applicant |
|
and |
|
THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
|
Respondent |
JUDGMENT AND REASONS
[1] This is an application for an order in the nature of mandamus under s. 72(1) of the Immigration and Refugee Protection Act, SC 2001 c 27 [IRPA] compelling the Minister of Citizenship and Immigration [Minister] to render a decision in respect of the Applicant’s application for a study permit.
[2] The Applicant is a 26-year-old citizen of China. She was accepted to the Master of Science in Interactive Arts and Technology program at Simon Fraser University on April 17, 2023. She states that she has been granted a scholarship of $21,000 per year along with the Entrance Graduate Fellowships valued at $7,000. She submitted her application for a study permit on May 17, 2023.
[3] Having made inquiries but not having received a determination of her study permit application, on January 24, 2024, she filed an application for leave and judicial review seeking to compel the Minister to make a decision on her application. She claims that approximately 35 weeks have passed since she submitted her application, which exceeds Immigration and Refugee Citizenship Canada [IRCC]’s published processing time of nine weeks. She submits that the delay in processing her study permit has meant that she has had to defer her enrollment twice, from September 2023 to January 2024, and from January 2024 to May 2024, and that there is no opportunity for further deferral.
[4] In response to a request pursuant to Rule 9 of the Federal Courts Citizenship, Immigration and Refugee Protection Rules, SOR/93-22, the Canadian Embassy in Beijing advised, by letter dated January 31, 2024, that no decision had yet been made on the Applicant's temporary resident application. As such, no reasons for a decision exist. The Global Case Management System [GCMS] notes, dated December 7, 2023, indicate that when the Applicant requested a status update, the Embassy responded by advising her that her application was currently undergoing standard background checks and that it cannot estimate when an application undergoing backgrounds checks will be finalized, but as soon as the review was completed, processing of the next steps would proceed.
[5] In her memorandum of argument filed in this matter the Applicant set out the test for mandamus and explained why, in her view, the test was met. The Respondent’s memorandum of argument asserting that the test was not met.
[6] However, circumstances have given rise to a determinative preliminary issue.
Preliminary Issue - Mootness
[7] Subsequent to the parties filing their respective motion records, by letter dated April 22, 2025, the Respondent indicated its intention to make a preliminary motion at the outset of the judicial review hearing seeking to file a supplementary affidavit. This is the affidavit of Terry Tse, a legal assistant at the Department of Justice, which attaches as an exhibit an April 9, 2025, letter from IRCC to the Applicant advising that her study permit application has been refused because it does not meet the requirements of the IRPA and the Immigration and Refugee Protection Regulations, SOR/2002-227 [IRP Regulations]. Specifically, the Applicant has not complied with IRCC’s request for information, pursuant to s 16(2) of the IRPA, being that she failed to comply with the IRCC’s request for completion of a medical examination.
[8] This gives rise to two issues. First, should the supplementary affidavit be admitted and, if so, does this render the application for judicial review moot?
[9] When appearing before me the Respondent submitted that the affidavit is admissible under Rule 312 of the Federal Courts Rules, SOR/98-106 which permits the filing of additional affidavits with leave of the Court. Further, that the test to obtain an order under Rule 312, as set out in Forest Ethics Advocacy Association v The National Energy Board, 2014 FCA 88, has been met. The Respondent submitted that admission of the affidavit would render the matter moot.
[10] The Applicant is self-represented and is in China. She did not respond to efforts to contact her made by the Registry and did not appear remotely at the hearing.
[11] It is well established that, as a general rule, the evidentiary record before a reviewing court on judicial review is restricted to what was before the decision-maker. Evidence that was not before the decision-maker and that goes to the merits of the matter is, with certain limited exceptions, not admissible. The identified exceptions are an affidavit that: provides general background in circumstances where that information might assist the court in understanding the issues relevant to the judicial review; brings to the attention of the reviewing court procedural defects that cannot be found in the evidentiary record of the administrative decision-maker; or, highlights the complete absence of evidence before the administrative decision-maker when it made a particular finding (Association of Universities and Colleges of Canada v Canadian Copyright Licensing Agency (Access Copyright), 2012 FCA 22 at paras 19-20 [Access Copyright]).
[12] The supplemental affidavit is not material that was before the decision-maker when it rendered its decision, but it attaches as an exhibit the actual decision concerning the Applicant’s student permit application.
[13] In the normal course, when a decision is rendered and communicated to an applicant before an application for judicial review seeking mandamus has been held, an applicant would likely discontinue the application because the remedy sought – the making of a decision – has been achieved. In this case, that has not happened.
[14] To my mind, there may be a question as to whether Rule 312 of the Federal Courts Rules has application in this matter which is governed by the Federal Courts Citizenship, Immigration and Refugee Rules. This is because Rule 4 of the latter does not extend to Part 5/Rule 312 of the former. It is also questionable whether in these circumstances one of the two preliminary Rule 312 requirements — that the evidence must be admissible on the application for judicial review — can be met. More specifically, that the evidentiary record before a reviewing court on judicial review is restricted to the record that was before the decision-maker with certain exceptions, none of which would appear to be applicable here.
[15] Nor is there a rule permitting the filing of supplemental affidavits found within the Federal Courts Citizenship, Immigration and Refugee Rules.
[16] However, this Court has held that, with respect to the filing of a supplemental reply affidavit in the context of the Federal Courts Citizenship, Immigration and Refugee Rules, that such evidence may be admitted where special circumstances are shown (Olia v Canada (Minister of Citizenship and Immigration), 2005 FC 315).
[17] Further, the Federal Court of Appeal in Amgen Canada Inc v Apotex Inc, 2016 FCA 121, [Amgen] considered a circumstance where the Federal Courts Rules governing written motions did not expressly allow for evidence to be offered in reply. In that circumstance, the FCA permitted the filing of the reply evidence. The Federal Court of Appeal explained why this was permissible and also held that:
[13] Much guidance can also be found in the case law that has developed under Rule 312 concerning the admission of additional affidavits in applications. Additional affidavits are permitted only where it is “in the interests of justice”: Atlantic Engraving Ltd. v. LaPointe Rosenstein, 2002 FCA 503, 299 N.R. 244 at paras. 8-9. That means that the Court must have regard to whether:
- the evidence will assist the court (in particular, its relevance and sufficient probative value);
- admitting the evidence will cause substantial or serious prejudice to the other side;
- the evidence was available when the party filed its affidavits or it could have been discovered with the exercise of due diligence.
(Holy Alpha & Omega Church of Toronto v. Canada (Attorney General), 2009 FCA 101 at para. 2; Forest Ethics Advocacy Assn. v. National Energy Board, 2014 FCA 88 at para. 6; House of Gwasslaam v. Canada (Minister of Fisheries & Oceans), 2009 FCA 25, 387 N.R. 179 at para 4.) I note that this Court has applied these same factors in deciding whether a reply affidavit should be permitted to be filed in an application for leave to appeal under Rule 355, a rule that, like Rule 369(3), does not explicitly allow reply affidavits: Quarmby v. National Energy Board of Canada, 2015 FCA 19.
[18] In my view, the supplemental affidavit evidence may be admitted where special circumstances are shown. This is such a circumstance as the evidence establishes that the very remedy sought by the Applicant — a decision on her student permit application — has been provided but she has not discontinued her mandamus application or explained why she wishes to proceed with it.
[19] Further, or in the alternative, even if Rule 312 does not apply in this case and even though what is at issue here is the admission of evidence by a supplemental affidavit rather than by reply, in my view the principles identified in Amgen have application. In this matter, permitting the filing of the supplemental affidavit is in the interest of justice: the IRCC decision was not available when the parties filed their affidavits; it assists the Court as it is relevant to the issue of whether mandamus should be granted and it is sufficiently probative that it could effect the result; and, it does not prejudice the Applicant as the existence of the IRCC decisions is a matter of fact that would preclude the success of the mandamus request.
[20] Accordingly, I find that the supplemental affidavit is admissible.
[21] This leads to the question of whether the application for judicial review is moot.
[22] In Borowski v Canada (Attorney General), 1989 CanLII 123 (SCC), [1989] 1 S.C.R. 342, the Supreme Court of Canada held that mootness occurs “when the decision of the court will not have the effect of resolving some controversy which affects or may affect the rights of the parties. If the decision of the court will have no practical effect on such rights, the court will decline to decide the case. This essential ingredient must be present not only when the action or proceeding is commenced but at the time when the court is called upon to reach a decision”
(at 353b). If “the required tangible and concrete dispute has disappeared and the issues have become academic”
, the Court must then “decide if [it] should exercise its discretion to hear the case”
(at 353h).
[23] In my view, the decision sought by the Applicant, to determine the outcome of her student permit application, has been issued. There remains no live controversy concerning the issuance of that decision. Nor is this a circumstance where there continues to exist a necessary adversarial relationship, where the expenditure of further judicial resources would be justified, nor where it is in the public interest to proceed (Amgen Canada Inc v Apotex Inc, 2016 FCA 196 at para 16; Public Service Alliance of Canada v Canada (Attorney General), 2021 FCA 90 at para 6; Liu v Canada (Citizenship and Immigration), 2018 FC 527 at paras 56, 59). Accordingly, I decline to exercise my discretion to hear this moot matter.
[24] Finally, I note that even if the Applicant does not agree with the IRCC’s decision refusing her student visa, that is not relevant to the disposition of this application. That is because an application for mandamus cannot be converted into an application for judicial review of the resulting decision. A change in the subject matter of the judicial review is essentially a new judicial review. A new application for leave and judicial review would be required and leave would have to be granted before that issue could be addressed by the Court (Zaghbib v Canada (Minister of Public Safety and Emergency Preparedness), 2016 FCA 182 at para 51 – 54, citing Figueroa v Canada (Foreign Affairs and International Trade), 2015 FC 1341, Farhadi v Canada (Citizenship and Immigration), 2014 FC 926 and Rule 302 of the Federal Courts Rules).
Email this Content