Date: 20011116
Docket: IMM-1342-00
Neutral citation: 2001 FCT 1266
BETWEEN:
NAWAL HAJ KHALIL, RIYAD EL HASSEN,
ACIL EL HASSEN and ANMAR EL HASSEN
by their Litigation Guardian, Nawal Haj Khalil
Applicants
and
THE MINISTER OF CITIZENSHIP
& IMMIGRATION
Respondent
[1] By notice of motion filed the 22nd of October, 2001 to be dealt with pursuant to Rule 369 of the Federal Court Rules, 1998 [1] , the Respondent seeks an order allowing this application for judicial review, setting aside the decision that is under review, that is to say, a decision of a Senior Immigration Officer dated February 25, 2000, and referring the subject matter of that decision back to the Respondent to be redetermined by a different Senior Immigration Officer. Explicit in the material filed on behalf of the Respondent is an indication that the redetermination would be on the basis of "open source" information only, rather than, in part, on the basis of information that the Respondent regards as exempt from disclosure, even to this Court, that was utilized in arriving at the decision under review. The decision under review was to the effect that Nawal Haj Khalil, the principal applicant, is inadmissible to Canada pursuant to clause 19(1)(f)(iii)(B) of the Immigration Act [2]. This determination was apparently based in part on the fact that the principal applicant failed to obtain a Ministerial exemption pursuant to paragraph 19(1)(f) of the Immigration Act. The relevant portions of subsection 19(1) of the Immigration Act read as follows:
|
19. (1) No person shall be granted admission who is a member of any of the following classes: ... (f) persons who there are reasonable grounds to believe ... (iii) are or were members of an organization that there are reasonable grounds to believe is or was engaged in ... (B) terrorism, except persons who have satisfied the Minister that their admission would not be detrimental to the national interest; |
19. (1) Les personnes suivantes appartiennent à une catégorie non admissible : ... f) celles don't il y a des motifs raisonnables de croire qu'elles : ... (iii) soit sont ou ont été membres d'une organisation don't il y a des motifs raisonnables de croire qu'elle se livre ou s'est livrée : ... (B) soit à des actes de terrorisme, le présent alinéa ne visant toutefois pas les personnes qui convainquent le ministre que leur admission ne serait nullement préjudiciable à l'intérêt national; |
[2] The rationale provided by the Respondent for her consent to allow the application for judicial review and to refer the matter back for redetermination is essentially based on technical grounds.
[3] Counsel for the Applicants opposes the Respondent's motion. She urges:
The Applicants want to present their application to this Court to have the issues which they raised determined by this Court.
Counsel for the Applicants notes that the Applicants have lived in a state of uncertainty regarding their status in Canada for a considerable period of time. One result has been that the principal applicant and her two children, Acil El Hassen and Anmar El Hassen, have been separated from the principal applicant's husband and the father of the children for what counsel for the Applicants urges has been an unconscionably long time.
[4] Another concern expressed on behalf of the Applicants is that the Respondent does not concede to error on the part of the decision-maker in respect of all of the issues raised on the application for judicial review. It is urged that a new decision-maker would not have guidance from this Court on all of the issues under review with the result that the process might be even further elongated, by reason of repetition of what the Applicants consider to be reviewable errors.
[5] Counsel for the Applicants urges that this is a motion that should not be dealt with under Rule 369 but rather should be deferred for consideration at the hearing of the application for judicial review which is now scheduled for the 8th January, 2002.
[6] While counsel for the Respondent does not urge that the Respondent's motion should be granted on the ground that the motion, in effect, renders the judicial review moot, counsel for the Applicants suggests that that is the essence of the Respondent's argument. I agree with this characterisation and propose to dispose of the motion, without deferring it for consideration at the hearing of the judicial review application, essentially on the principles of mootness.
[7] The Respondent seeks an Order that essentially grants the Applicants all that they seek on the application for judicial review, albeit as earlier indicated, without conceding on all of the issues raised on behalf of the Applicants. I am satisfied that the Respondent's motion essentially renders this application for judicial review moot.
[8] In Borowski v. Canada (Attorney General) [3] Mr. Justice Sopinka wrote at page 353:
The doctrine of mootness is an aspect of a general policy or practice that a court may decline to decide a case which raises merely a hypothetical or abstract question. The general principle applies 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. Accordingly if, subsequent to the initiation of the action or proceeding, events occur which affect the relationship of the parties so that no present live controversy exists which affects the rights of the parties, the case is said to be moot. The general policy or practice is enforced in moot cases unless the court exercises its discretion to depart from its policy or practice. The relevant factors relating to the exercise of the court's discretion are discussed hereinafter.
I am satisfied that here, subsequent to the initiation of this application for judicial review, an event occurred, crystalized in the Respondent's motion now before me, which has affected the relationship of the parties so that, if the Respondent's motion were granted, no present live controversy would exist which would affect the rights of the parties. There only remains for consideration whether this Court should exercise its discretion to depart from the general policy or practice of not considering moot cases. Factors to be taken into consideration in this regard are the following:
(1) whether the parties retain an adversarial stake in the issues raised by this application for judicial review;
(2) whether, in all of the circumstances, the issues on the application for judicial review are important enough to justify the judicial resources necessary to decide the case, in the sense that the decision would have some practical effect on the rights of the parties; and
(3) whether the Court would be departing from its traditional role in adjudicating disputes if it decided the application for judicial review.
[9] Against the forgoing criteria, notwithstanding the eloquent appeal on behalf of the Applicants by their counsel, I can find no justification for departing from the general policy or practice that Courts will not hear moot cases. Further, I find no basis on the facts of this matter and on arguments presented to the Court by counsel for not granting the Respondent's motion that would render this judicial review application moot. [4]
[10] In the result, the Respondent's motion will be granted. This application for judicial review will be allowed, the decision under review will be set aside and this matter will be referred back to the Respondent for redetermination by a different Senior Immigration Officer, relying on "open source" information only.
[11] Neither counsel made submissions on the issue of costs. In all of the circumstances of this matter I am satisfied that there are special reasons why the Applicants should be entitled to their costs of this motion and of the application for judicial review, which costs should be as taxed on the ordinary scale, unless otherwise agreed to between the parties.
(Sgd.) "Frederick E. Gibson" Judge
Vancouver, British Columbia
November 16, 2001
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1342-00
STYLE OF CAUSE: Nawal Haj Khalil et al. v. M.C.I.
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: -
REASONS FOR ORDER OF THE COURT BY: Gibson J.
DATED: November 16, 2001
APPEARANCES:
- FOR APPLICANTS
- FOR RESPONDENT
SOLICITORS OF RECORD:
Jackman, Waldman & Associates FOR APPLICANTS
Toronto, Ontario
Deputy Attorney General of Canada FOR RESPONDENT
Department of Justice
Toronto, Ontario
[1] SOR/98-106.
[2] R.S.C. 1985, c. I-2.
[3] [1989] 1 S.C.R. 342.
[4] For a recent more thorough analysis of the considerations that might lead a Court to hear an immigration matter, notwithstanding the fact that it is moot, see Teng v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 312 (Q.L.) (F.T.C.D.).